Findings Of Fact At all times pertinent to this proceeding, Respondent was a certified general contractor and the holder of license number CG C050853 issued by the Florida Construction Industry Licensing Board. At all times pertinent to this proceeding, Respondent was the licensed qualifying agent for Reliable Remodelers, a division of Action Bay Marine Company, Inc., and as such qualifying agent was responsible for all its contracting activities. On March 9, 1993, Joel Broder while representing himself to be vice president of Reliable Remodelers, executed a contract with Louise Rodney and Astrid Lamand wherein Reliable Remodelers agreed to perform certain roofing and carpet work at the residence of Yves and Louise Rodney at 35 N.W. 115 Street, Miami, Florida. The reason Astrid Lamand signed this contract was not established. The work to be done on the Rodney residence was in repair of damages caused by Hurricane Andrew. The costs of these repairs were to be paid by insurance proceeds. The price for this work to be performed by Reliable Remodelers, including materials, was $10,650.00. According to the terms of the contract, $200 was due as a down payment on or about March 9, 1993, and the remainder was due on completion of the work. Ms. Rodney gave Mr. Broder two checks as deposits toward the work to be done. The first was a check in the amount of $200.00 on March 9, 1993, the date the contract was signed. Mr. Broder told Ms. Rodney on March 9, 1993, to call him when her insurance settlement came in so he could come back for an additional check and thereafter begin work. On April 11, 1993, Ms. Rodney advised Mr. Broder by telephone that she had received her insurance settlement. On April 12, 1993, Ms. Rodney paid to Mr. Broder the second check, which was in the amount of $3,000.00. On April 13, 1993, Mr. Broder told the Rodneys that work would begin on the house in three days. Ms. Rodney made both of these checks payable to Joel Broder personally because Mr. Broder instructed her to do so. Mr. Broder assured her that it was acceptable to make these two deposit checks to him personally because of his position as a vice-president of Reliable Remodelers. Mr. Broder indicated that the final check would be made payable to Reliable Remodelers. Reliable Remodelers never began work on the subject contract. No building permit was ever pulled for the project described in the subject contract. A local building department building permit would have been required for beginning work on the roofing portion of the project described in the subject contract. The Rodneys never received a refund of the $3,200.00 paid to Joel Broder. Louise Rodney was justified in believing Mr. Broder was an authorized representative of Reliable Remodelers. Mr. Broder presented a business card and a contract with Reliable Remodelers' name and address and Respondent's general contractor's license number printed on the contract. Mr. Broder was employed by Reliable Remodelers and had the authority to negotiate contracts on its behalf with the public. Richard Levin, a corporate officer of Reliable Remodelers at the time of the Rodney contract, knew that Mr. Broder was representing Reliable Remodelers in a contract sales capacity at the time of the Rodney contract. Between April 13, 1993, and the end of June 1993 Louise Rodney and her husband, Yves Rodney, repeatedly called Mr. Broder at Reliable Remodelers, but were never able to get Mr. Broder or Reliable Remodelers to start work. When Mr. or Ms. Rodney called the number provided by Mr. Broder, he or she would sometimes get Mr. Broder, sometimes get an answering machine, and sometimes get a lady who answered the phone "Reliable Remodelers." Mr. Broder repeatedly made excuses to the Rodneys about why the job did not begin. Sometime around the end of June or early July, Ms. Rodney called Mr. Broder and demanded a return of her money. Mr. Broder told Ms. Rodney that he could not refund the money until the end of July because he never wrote checks until the middle of the month. Mr. Broder did promise to return the money to Louise Rodney by the end of July 1993. In July 1993, Ms. Rodney filed a complaint with the Metro Dade Building and Zoning Department against Reliable Remodelers and Joel Broder. On July 23, 1993, Ms. Rodney filed a complaint with the Florida Department of Business and Professional Regulation against Joel Broder and Reliable Remodelers. In late August or early September 1993, Mr. Broder contacted Ms. Rodney by telephone about the refund. This telephone contact was after a representative from the Florida Department of Business and Professional Regulation had contacted Mr. Broder about Ms. Rodney's complaint. In that telephone conversation Mr. Broder discussed the possibility of refunding to Ms. Rodney her deposit, but he insisted on keeping $200.00 of the $3,200.00. On or about September 10, 1993, the Respondent executed and sent Louise Rodney a letter on Reliable Remodelers letterhead. A copy of the letter was sent to the Department of Professional Regulation. This letter provided, in part, as follows: You have expressed a desire to be released from our contract dated March 9, 1993, for work in the amount of $10,650.00. We want to make it clear that we have been pro- hibited from fulfilling the terms of our contract by unreasonable and impractical demands by you, the Homeowners, as to how the work should proceed, i.e., demanding that roof tiles be loaded on the roof before it is hot mopped. 1/ Although your request at this time is not in accordance with the cancellation terms of our contract, we feel it would be in the best interest of all parties to grant your request. We do however, require written notification of your intent to cancel. Notarized signatures on this document will suffice. Upon receipt of this executed document we will initiate refund procedures. Your deposit of $3,200.00 will be returned to you within thirty (30) days. This allows us time to recoup binders issued for your job. Of course we have incurred some expenses in the set up for performing our contractual obligation. These, in excess of $400.00, we will overlook. Please endorse and have notarized the statement below and return this document to us promptly. The letter of September 10, 1993, contained a release clause that Ms. Rodney and Mr. Astride were to sign and have notarized before any refund was to be forthcoming. Sometime just after September 13, 1994, in the evening, three men came to the Rodney home with a copy of the letter signed by the Respondent on September 10, 1993. One of these three men was Jules Lindsor, a corporate officer of Reliable Remodelers. Mr. Lindsor falsely identified himself to the Rodneys as being Gary S. Sachs. These three men were trying to procure the Rodneys' signature on a release from the subject contract. The Rodneys refused to sign the release because there was no refund present and because they wanted to consult a lawyer before signing. Sometime after September 13, 1993, the Rodneys executed a release and mailed it to Reliable Remodelers. At the time of entering the contract with Reliable Remodelers the Rodney home was leaking from damage caused by Hurricane Andrew. The leaks were finally repaired between April and June 1994 by persons other than Reliable Remodelers. Respondent and Reliable Remodelers ratified the contract that Mr. Broder executed on its behalf. There was no evidence that Respondent or Reliable Remodelers ever repudiated the contract as a Reliable Remodelers contract, that there was any effort to perform the contract, or that there was a tender of a refund of the $3,200.00 paid by Louise Rodney. There was no evidence that Reliable Remodelers had any justifiable excuse for its failure to perform any work pursuant to its contract with Ms. Rodney and Mr. Astride.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Respondent be ordered to pay a fine in the amount of $3,500.00 to the Florida Construction Industry Licensing Board, pay restitution to Louise Rodney in the amount of $3,200, and pay costs incurred in the prosecution of this proceeding in the amount to be determined by the Petitioner. DONE AND ORDERED in Tallahassee, Leon County, Florida, this 14th day of November 1994. CLAUDE B. ARRINGTON Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 14th day of November 1994.
The Issue The issue is whether Respondent's license as a certified general contractor and certified roofing contractor should be disciplined for the reasons cited in the Amended Administrative Complaint.
Findings Of Fact Based upon all of the evidence, the following findings of fact are determined: When the events herein occurred, Respondent, John V. McCrave, was licensed as a certified general contractor and certified roofing contractor having been issued license numbers CG C014083 and CC C056695 by Petitioner, Department of Business and Professional Regulation, Construction Industry Licensing Board (Board). Respondent was the licensed qualifying agent for American General Enterprises, Inc. (American General), a contracting firm with offices in Inverness, Florida. He has held a license since 1978. In 1980, Joan D. Branca relocated from New Jersey to Inverness, Florida, where she purchased a mobile home. Around 1982 or 1983, she became acquainted with Respondent through church activities. In 1987, Branca sold her mobile home and decided to build a new home in Inverness with the proceeds from the sale of her home in New Jersey and the mobile home. Because she was acquainted with Respondent, she selected him as the contractor. On July 29, 1987, the parties entered into an Agreement Between Owner and Contractor wherein Respondent agreed to construct a "Home for Joan D. Branca" for a cost of $79,900.00, "not counting land aquisition." Although the contract called for Branca to pay Respondent twenty percent at the time the contract was signed, with four equal draws during the construction process, on or about September 29, 1987, she gave him a check in the amount of $50,000.00, payable to American General Enterprises, Inc. Respondent was to hold that sum of money pending the construction of the new home. The contract also contained a handwritten provision that "[i]f property is not found by April 1, 1988, that is suitable to [illegible] the Deposit of $50,000 shall be returned on demand with all interest at normal bank rate." As to this provision, Respondent's testimony that the contract would "die" on April 1, 1988, unless Branca secured a lot, was not contradicted and is hereby accepted. Therefore, Respondent was obligated to build a new home if Branca purchased a lot by April 1, 1988. Otherwise, he was simply required to return her money "on demand," including interest. Despite this self-executing provision, however, the parties continued to act as if there were a viable construction contract between them until at least the spring of 1990. Branca did not own a lot for her new house when she signed the contract. The parties' understanding, however, was that Respondent would build the house when she secured a lot. Until she did so, Branca was offered a job (with free lodging) by Respondent as manager of an apartment complex in Ocala, which Respondent was then constructing. Branca accepted this offer and moved to Ocala in March 1988. While living in Ocala, Branca did not actively search for a lot since she was busy "managing apartments." Even so, Respondent was not authorized to use her money for any other purpose during this period of time since it was to be held strictly for the purpose of constructing her home. Using $5000.00 borrowed from her daughter, in September 1989, Branca purchased two vacant lots in Inverness, one on Diamond Street, the other on Apopka Street. It was her intention to have Respondent construct the new home on the Diamond Street lot. To this end, she made a rough sketch of the home to be constructed. Thereafter, at Respondent's suggestion, she had an architectural draftsman, David Pillsbury, finalize the plans. They were completed on October 14, 1989. Because Branca had to borrow money from her daughter in September 1989 to purchase the two lots, she asked Respondent to return $5,000.00 of her money. On November 29, 1989, Respondent returned $5000.00 to Branca, leaving $45,000.00 of her money still in his possession. Within a few months, Respondent had the Diamond Street lot cleared as if construction were about to begin. When no construction began within a reasonable period of time, Branca asked Respondent if the building permits had been pulled. He replied that the permitting process took time. Finally, at Respondent's direction, on March 13, 1990, Branca filled out a Notice of Commencement form and filed it in the Citrus County public records. Even so, construction was never begun. On March 14, 1990, Respondent unilaterally drew up another "Agreement Between Owner and Contractor" and presented it to Branca for her signature. It called for him to construct a new home within "within 120 days after permits are obtained" for a price of $53,000.00. The agreement acknowledged that "Joan Branca has already payed [sic] $45,000 towards the construction of this home." It further provided that "[t]he ballance [sic] of $8,000.00 shall be after home is complete." At the same time, Respondent orally asked Branca to borrow another $25,000.00 to complete the construction of the home. Respondent even carried her to a local bank in order for her to borrow the money. Branca became suspicious and declined to sign a new contract or borrow the money. By May 1990, Branca had left Ocala and was living in Homosassa, Florida, with a friend. On the morning of May 4, 1990, Respondent visited Branca and tearfully reported to her that he had spent her $45,000.00 on other construction projects. Because of this, on May 10, 1990, Branca drew up a "Legal Agreement" wherein Respondent acknowledged owing her $45,000.00. He also promised to pay that amount by November 1, 1990. The agreement further provided that if he were late in making the payment, Respondent would be liable for a late charge of $500.00 per day. As of May 10, 1990, Respondent had repaid Branca around $6,500.00. Between October 14, 1992, and September 1, 1993, Respondent made various payments to Branca by check and cash. As of September 1993, Branca had been repaid a total of $15,255.00. On June 15, 1993, Branca engaged the services of an attorney who prepared a promissory note which Respondent signed. It required Respondent to pay Branca the sum of $44,000.00 at a rate of $400.00 per month beginning on July 1, 1993, and various balloon payments so that the total debt would be retired by June 1, 2000. When Respondent failed to repay the money as required by the parties' agreement, Branca filed suit in circuit court and on July 2, 1994, received a final civil judgment against Respondent in the amount of $44,286.20. As of the date of hearing, or more than three years later, Respondent had failed to repay any money towards satisfaction of the civil judgment. Respondent offered into evidence an addendum to the original contract dated September 30, 1987. The addendum reflects the purported signature of Branca. In addition, it carries the signature of Respondent, and the signatures of his wife and sister, Phyllis McCrave and Sharon McCrave, and a subcontractor, James McIntire, as witnesses. According to the addendum, Branca agreed that "[n]o work [would] be done" on the project, all previous agreements regarding the $50,000.00 were "null and void," her deposit would be held by American General "to protect it from any claims or liens against it, that might develop, due to the actions of her son, Jim Branca," and Branca's money would be returned "upon her request." As noted below, however, the authenticity of Branca's signature is in dispute. Both sides presented expert testimony on the issue of whether the signature on the addendum dated September 30, 1987, is actually that of Branca. Although the experts sharply disagreed on the genuineness of Branca's signature, the testimony of Petitioner's witness DeRaker is accepted as being the most credible on this issue. Therefore, it is found that the purported signature of Branca has been simulated to appear as her own, and that Branca did not sign the addendum. At hearing, Respondent contended that Branca had entrusted her to keep the $50,000.00 as a result of Branca's seventeen-year-old son being involved in an automobile accident in 1987. According to Respondent, Branca feared that she might be sued and forced to pay a judgment on behalf of her son and therefore wished to hide her assets. Therefore, he asserted that Branca never intended to have him construct a home, and that the contract was simply a way to hide the money. Branca denied this, saying that the wrecked automobile was in her son's name, and not her name, and he had insurance covering the accident. Her explanation is accepted as being the most credible on this issue. Respondent also contended that he offered to return Branca's money in April 1988 but she declined the offer. In May 1989, Respondent claims that he again offered to return the money but Branca wanted Respondent to use the money as an investment in an apartment project in Daytona Beach, Florida. Respondent then says that he used $40,000.00 of Branca's money, but lost it after the project was later abandoned. While Respondent presumably used Branca's money for other purposes, his testimony that he offered to return the money, but that she encouraged him to invest it in other ventures, is not accepted.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Construction Industry Licensing Board enter a Final Order finding that Respondent is guilty of the violations described in Counts I through V of the Amended Administrative Complaint. As to those violations, it is recommended that Respondent be fined $4750.00 to be paid by such date as may be determined by the Board, and that he be required to either pay Joan Branca $44,286.20, or that he satisfy the civil judgment entered against him on July 2, 1994, in Citrus County, Florida. DONE AND ENTERED this 30th day of January, 1998, in Tallahassee, Leon County, Florida. DONALD R. ALEXANDER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 30th day of January, 1998. COPIES FURNISHED: Gary L. Asbell, Esquire Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792 Michael T. Kovich, Esquire 203 Courthouse Square Inverness, Florida 34450 Rodney Hurst, Executive Director Construction Industry Licensing Board 7960 Arlington Expressway, Suite 300 Jacksonville, Florida 32211-7467 Lynda L. Goodgame, Esquire Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792
The Issue Whether Respondent performed an act which assisted an entity in engaging in the prohibited uncertified and unregistered practice of contracting or whether he abandoned a construction project in which he was engaged or under contract as a contractor, in violation of section 489.129(1), Florida Statutes, as set forth in the Administrative Complaint, and, if so, what is the appropriate sanction.
Findings Of Fact The Board is the state agency charged with regulating the practice of construction contracting pursuant to section 20.165 and chapters 455 and 489, Florida Statutes. At all times material to this proceeding, Mr. Requejo was licensed as a certified general contractor in the state of Florida, having been issued license number CGC 1504266. Mr. Requejo’s address of record is 15941 Southwest 53rd Court, Southwest Ranches, Florida 33331. At all times material to this proceeding, Mr. Requejo was the primary qualifying agent of Recol, Inc. Mr. Andre Chestnut was formerly a registered contractor in the state of Florida. He testified credibly that he used to have nine licenses. At all times relevant to this case, he held no state licensure as a contractor. Consistent with Department records, he testified that his license had been revoked sometime around August 2003. USA Screens was incorporated in December 2011 to perform “any and all lawful business,” with Mr. Chestnut as the incorporator, registered agent, and president. Records of the Department contain no evidence that USA Screens, Inc., has ever been qualified by a licensed contractor or had an active license as a construction business. Ms. Carmen Goehrig owned real property at 6300 Pinehurst Circle East in Tamarac, Florida. She wished to install a screen enclosure on the property. On January 21, 2012, she entered into a construction contract with USA Screens, Inc., signed by Mr. Chestnut. This constituted the practice of contracting by Mr. Chestnut and USA Screens, Inc. Mr. Chestnut testified that he had been working in conjunction with Mr. Requejo on various projects for the past nine years. He credibly testified that he received the template for the contract he entered into with Ms. Goehrig from Mr. Requejo. That contract template contains the full name and address for both Recol, Inc., and USA Screens, Inc., at the top of the contract in large type, but shows only one contractor’s license number, that of Mr. Requejo, under the address for Recol, Inc. No contractor’s license number is shown under the USA Screens, Inc., address. Having worked with Mr. Chestnut for nine years, and having prepared the template contract that they used for common projects, Mr. Requejo had reasonable grounds to know that USA Screens, Inc., was uncertified and unregistered, as suggested by the contract itself. The contract mentioned that it was contingent upon both homeowner association and government approvals, and included a handwritten provision that there would be “no material purchases until association approval.” Ms. Goehrig signed two checks to USA Screens, Inc.: the first in the amount of $500.00 for the application; the other in the amount of $3,000.00 for materials. Both checks were cashed on January 24, 2012. On February 14, 2012, Mr. Requejo, d/b/a Recol, Inc., timely filed building permit application 12-636 for construction of the screen enclosure at 6300 Pinehurst Circle East with the city of Tamarac, using his general contractor’s license number. Recol, Inc., is listed as the general contractor in the city’s records. In filing for a permit from the city of Tamarac for the construction, Mr. Requejo assisted USA Screens, Inc., and Mr. Chestnut in engaging in the prohibited uncertified and unregistered practice of contracting. Mr. Claudio Grande is the chief building official for the city of Tamarac. He oversees permitting and is the custodian of records. He testified that permit 12-636 was denied due to zoning restrictions and structural issues. Mr. Chestnut testified that he made numerous calls trying to get the permit approved. He testified that the problem was that the screen enclosure encroached on a utility easement. As Mr. Goehrig testified: They applied for the permit. He showed us the drawings, Andre, and to my knowledge, submitted the permit application. And then we noticed that the second check was cashed, so we started calling him about that. And all he would say is, “Don’t worry, don’t worry, don’t worry.” And then the permit was denied and then we went back and tried to do something to get it approved and it was denied. And then zoning finally denied it again. So three times, we tried to fix it to make it work. And we finally, you know, the zoning department finally came down and said, “No, end of story, no good.” So we went to him and said, “Okay, we can’t get the permit, please just give us our money back and we’ll go on our way.” And of course, his answer was, “No, you’re not getting any money back, I spent your money, goodbye.” After the permit was finally denied and Mr. Chestnut refused to return their money, the Goehrigs contacted Mr. Requejo to get their money back, again to no avail. It was not shown that the project was terminated without just cause or that it was terminated without proper notification to Ms. Goehrig. It is clear from the filed complaint, as well as the testimony that Ms. Goehrig was aware that the project could not be permitted, and sought a return of the money that had been paid. “The permit was denied and [Chestnut] refuses to refund our deposit.” The Department failed to prove that Mr. Requejo abandoned a construction project in which he was engaged or under contract as a contractor. Prior Discipline On February 13, 2013, a Final Order Adopting Settlement and Vacating Prior Orders was filed by the Board. The Order incorporated a settlement agreement imposing discipline for allegations in several earlier Administrative Complaints. The October 2012 settlement agreement required the payment of fines, investigatory costs, and restitution to six individuals, as well as continuing education and a six-year period of probation. The Order constitutes prior discipline within the meaning of the disciplinary guidelines.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Construction Industry Licensing Board enter a final order finding Mr. Antonio L. Requejo in violation of section 489.129(1)(d), Florida Statutes; suspending his contractor’s license for a period of six months, followed by a period of probation deemed advisable by the Board; imposing a fine of $7,000.00; and directing that he make restitution in the amount of $3,500.00 to Carmen Goehrig. DONE AND ENTERED this 17th day of March, 2016, in Tallahassee, Leon County, Florida. S F. SCOTT BOYD Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 17th day of March, 2016. COPIES FURNISHED: Sorin Ardelean, Esquire Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-2202 (eServed) Antonio L. Requejo 11826 B. Miramar Parkway Miramar, Florida 33025 Daniel Biggins, Executive Director Construction Industry Licensing Board Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399 (eServed) William N. Spicola, General Counsel Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399 (eServed)
The Issue The issues framed by the Stipulated Issues, Facts and Exhibits are whether the license of David L. Norris as a certified general contractor should be disciplined for violation of: Section 489.129(1)(e), Florida Statutes (1983), by aiding an unlicensed person to evade the requirements of Chapter 489; Section 489.129(1)(f), Florida Statutes (1983), by knowingly conspiring with an unlicensed person to use Norris' certificate with the intent to evade the requirements of Chapter 489; Section 489.129(1)(j), Florida Statutes (1983), through the violation of Section 489.119, Florida Statutes (1983), by failing to qualify a firm through which Respondent was acting; Section 489.129(1)(g), Florida Statutes (1983), by acting in a name not on his license. At the final hearing, the Department amended the Administrative Complaint to dismiss the violations of Sections 489.129(1)(k) (abandoning a contracting job) and (m) (gross negligence or malpractice in contracting). The Department presented the two witnesses and the Respondent presented one witness. Twelve exhibits for the Department were received into evidence, and Mr. Norris offered one exhibit. The parties also stipulated to certain facts. (See Stipulated Issues, Facts and Exhibits filed May 15, 1986, Tr. 4-5)... /1
Findings Of Fact At all times material, Respondent, David L. Norris, was a certified general contractor, having been issued license numbers CG C011081 and CG CA11081, by the State of Florida, Department of Professional Regulation, Construction Industry Licensing Board. (PX 2; Stp. F. #1, Administrative Complaint paragraph 2) At all times material, Mitch Kobylinski (Kobylinski) was unlicensed, and KMK Remodeling and Repair (KMK) had no qualifying agent for the purpose of engaging in contracting under Section 489.119, Florida Statutes (1983). At times Kobylinski has done business as KMK. (PX 1; Stp. F. #2; Tr. 18-21) At no time did the name Kobylinski or KMK appear on the license issued to Norris by the Construction Industry Licensing Board, nor did Norris qualify a business by that name. (Stp. F. #1, Administrative Complaint paragraph 9) Norris knew Kobylinski was not licensed to engage in contracting. (Stp. F. #1, Administrative Complaint paragraph 5) Kobylinski had worked for Norris on prior jobs, including working for Norris in the capacity as overseer on a large room addition. Norris had paid Kobylinski by the hour, by the day or by the type of work Kobylinski did. On one other job, Norris and Kobylinski shared the job in that Kobylinski was paid by the day, however, at the end both Respondent and Kobylinski split the profit. (Tr. 21,22) Kobylinski, not Norris, was initially contacted by a leasing agent to improve a structure for Marianne Tomlinson (Tomlinson) at 21073 Jog Road, Suite 21, Boca Raton, to become Tootsie's, a nail salon. Kobylinski indicated to the leasing agent and Ms. Tomlinson that he would have to perform the work with a general contractor. (Stp. F. #3; Tr. 24) Kobylinski presented a proposal on KMK's letterhead, dated August 17, 1984, to Tomlinson for the work to be done. (PX 3; Tr. 16, 18) Norris also submitted a proposal, dated August 15, 1984, to Tomlinson. The evidence does not show what letterhead was used by Norris, because the exhibit is a carbon copy. (RX 1) The proposed cost of the work from Kobylinski was $23,593.75 and from Norris was $23,600. Both proposals made separate provisions for formica work at additional prices of $10,600 and $10,500 respectively. (Stp. F. #4; PX 3; RX 1) Only Kobylinski's proposal was signed by Ms. Tomlinson. (PX 3; Tr. 39) Norris and Kobylinski agreed that Norris would act as the overseer of the job and that, as compensation, Norris initially was to receive $1,000.00 to begin the job (Tr. 26) and further monies depending upon time Norris expended on the job (Tr. 22-23, 28-29). They also agreed that Kobylinski was to deal exclusively with Tomlinson and be responsible for all monies on the job and paying subcontractors. (Tr. 26, 43) No agreement was signed between Norris and Tomlinson providing that Norris would be the contractor for the job. (Tr. 38-39) Norris applied for and was issued, on September 18, 1984, the building permit for the Tomlinson job. (PX 4,5; Stp. F. #1, Administrative Complaint paragraph 6; Tr. 39) Norris contacted the electrician, at the initial stage of the job, for the electrical work. (Tr. 56) A certificate of occupancy was issued for the job. (Stp. F. #6; Tr. 46) Tomlinson made all payments for the construction work by checks payable to Kobylinski, drawn on Tomlinson's business account for Tootsie's. (PX 7; Tr. 30) Near the end of the job, Tomlinson gave Kobylinski a check, dated December, 1984, for $4,000.00. There were not sufficient funds in the account for Kobylinski to cash the check. Kobylinski returned to Tomlinson with the check, and Tomlinson issued him a replacement check for $2,000.00. She requested the return of the $4,000.00 check to her, but Kobylinski had not brought that check with him. At this point in time, the working relationship between Kobylinski and Tomlinson broke down. (PX 7; Tr. 31,32) Tomlinson submitted her punch list, dated December 17, 1984, to Norris. On it she identified him as the contractor for her job and stated she wanted to make the final payment to him. (PX 6) On January 20, 1985, due to problems with the punch list and remaining payment, Tomlinson and Norris met. As a result of that meeting, they reached an agreement dated January 20, 1985, as to what remained to be paid, viz., $4,113.75, and what work remained to be done. The August 17th agreement between Kobylinski and Tomlinson was referenced in the agreement of January 20, 1985. (PX 8; Tr. 45) By January 20, 1985, Kobylinski would have received all the monies for the cost of the work, according to the August 17th agreement, if the $4,113.75 were paid by Tomlinson. (Stp. F. #5) On January 21, 1985, Norris filed a claim of lien against the Tomlinson job. The lien indicated that the total value of the work was $23,593.75 (which was the cost of construction according to the contract with Kobylinski) and that the amount unpaid was $4,113.75. Norris filed the lien because, after signing the agreement of January 20, 1985, he and Tomlinson had further disagreements. (PX 9; Tr, 46) In a letter to Norris, dated April 23, 1985, in an attempt to get Respondent to release his lien, Tomlinson indicated that she had contracted with Kobylinski, not Norris, to do the work for her. (PX 11) As compared to the compensation received by Norris, Kobylinski has received over one-half the money from the Tomlinson job. (Tr. 28)
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is recommended that Respondent be found guilty as charged in the Administrative Complaint, as amended at the final hearing, and that an administrative fine of $1,000.00 be imposed. DONE AND ORDERED this 9th day of October 1986 in Tallahassee, Leon County, Florida. WILLIAM R. DORSEY, JR. Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 9th day of October, 1986.
