Conclusions BRUCE ELLIOT ESQUINALDO, JR., ("Respondent"), and the DEPARTMENT OF BUSINESS AND PROFESSIONAL REGULATION ("Department"), stipulate and agree to the following Stipulation and to the entry of a Final Order of the Florida Construction Industry Licensing Board ("Board"), incorporating this Stipulation and the agreement in this matter. STIPULATED FACTS 1. At all times material hereto, Respondent was a Certified Pool Contractor in the State of Florida, having been issued license number CP C050527. 2. Respondent was charged by Administrative Complaints filed by the Department and properly served upon Respondent with 21 violations of Chapters 455 and 489, Florida Statutes, and the rules enacted pursuant thereto. True and correct copies of the Administrative Complaints are attached hereto and incorporated by reference as composite Exhibit "A." 3. Respondent neither admits nor denies the allegations of fact contained in the Administrative Complaints attached hereto as composite Exhibit "A." STIPULATED CONCLUSIONS OF LAW 1. Respondent, in his capacity as a licensed Contractor, admits that in such capacity he is subject to the provisions of Chapters 455 and 489, Florida Statutes, and the jurisdiction of the Department and the Board. 2. Respondent admits that the facts set forth in the Administrative Complaints, if proven, constitute violations of Chapter 489, Florida Statutes, as alleged in the Administrative Complaints attached hereto as composite Exhibit "A." STIPULATED DISPOSITION 1. In order to facilitate this settlement, with regard to DBPR case number 97-14575/DOAH case number 9$8-3713/Jovellar, and DBPR case number 98-02110/DOAH case number 99-2655/Quadri, the Department agrees to withdraw its recommendation that a penalty be assessed against the Respondent consistent with the Administrative Law Judge’s Recommended Order, and the Respondent agrees to withdraw his Exceptions to the Recommended Order. 22 2. The following charges contained in the Administrative Complaints, attached hereto as composite Exhibit “A” shall be dismissed: DBPR case number 98-21934/Lopez Count III, and DBPR case number 99-05645/Rodriguez Count I and Count IT. 3. Respondent shall abide by Chapters 455 and 489 Florida Statutes, and the rules promulgated pursuant thereto. 4, Respondent shall pay Fifteen Thousand, Five dollars and Twenty Four cents ($15,005.24) to the Construction Industry Licensing Board. Of said payment, Six Thousand, Four Hundred Fifty dollars ($6,450.00) shall be allocated to the payment of a fine and Eight Thousand, Five Hundred Fifty Five dollars and Twenty Four cents ($8,555.24) shall be allocated to the payment of the Department's costs. Said payment shall be in the form of a cashier's or certified check and shall be made payable to the Florida Construction Industry Licensing Board. Said payment shall be returned to the Department along with this Stipulation for presentation to the Board. The monies paid pending approval of this Stipulation by the Board shall be refunded to Respondent 4£ the Board rejects this Stipulation. 5. Respondent shall submit to the Executive Director of the Florida Construction Industry Licensing Board, proof of having satisfied the Final Judgments obtained by (1) Robert R. Bollard, in the amount of One Thousand, One Hundred Five dollars ($1,105.00), in DBPR case number 99-09009, and (2) Dennis Ryan in the amount of 23 Four Hundred Four dollars and Fifty Two cents ($404.52), in DBPR case number 99-00117. Respondent shall also submit proof to the Executive Director of the Florida Construction Industry Licensing Board, of having also made restitution to Karen and Joseph De Leonardo in the amount of One Hundred Sixty Nine dollars and Sixty cents ($169.60), in DBPR case number 99-08509. Such proof shall be provided within ninety (90) days of the filing of the Final Order in this matter. To assure payment of the Final Judgments and restitution, it is further ordered that all of Respondent's licensure to practice contracting shall be suspended with the imposition of the suspension being stayed for ninety (90) days following the filing of the Final Order in this matter. If the ordered payments and proof of having made said payments are in compliance with the terms set forth above, the suspension imposed shall not take effect. However, should payment, or proof of payment not be timely made, the stay shall be lifted and Respondent's license shall be immediately suspended. Upon payment of the Final Judgments and restitution in full, and proper submittal of proof of making such payments, the suspension imposed shall be lifted. 6. Respondent shall be on probation for three (3) years from the date of filing of the Board's Final Order in this matter. Respondent shall appear before the Probation Committee of the Board at such times as directed by the Executive Director, or as specified in the Final Order entered in this action. In connection with each probation appearance, Respondent shall answer questions under oath 4 24 and shall provide copies of all construction related monthly bank statements, financial statements reflecting a minimum net worth requirement as reflected in Rule 61 G4-15.005(3) (a), F.A.C., permit applications, contracts, and operations questionnaires since the entry of the Final Order in this matter if it is the first probation appearance or since the last probation appearance if it is other than the first probation appearance. In addition, the Respondent shall provide such other information and documentation as is requested by the Department, the Board or the Probation Committee. The Respondent shall forward said documentation to the Board in advance of the probation appearance. As a special condition of probation, the Respondent will, during the probation period, take corrective action and = obtain acknowledgements of satisfaction and/or proof from the applicable building departments, that the following projects and/or permits have been satisfactorily completed: DBPR case number 99-08509/DeLeonardo, DBPR case number 99~-08265/Pacheco, DBPR case number 99-10077/Toro, DBPR case number 99-00117/Ryan, and DBPR case number 99- 05645/Rodriguez. However, the Respondent shall not be required to meet any additional requirements for pool barriers imposed effective October 1, 2000, by Chapter 2000-143, Laws of Florida. Respondent shall initiate such corrective action prior to his first probation appearance. Further, the Respondent shall provide proof to the Board or the Probation Committee that documents the status of the corrective action taken in each of the projects identified above. 5 25 The Respondent shall forward such proof to the Board in advance of the probation appearance and such proof shall be in a form acceptable to the Probation Committee. The burden shall be solely upon Respondent to remember the requirement for said appearance, and to take the necessary steps in advance of said appearance to contact the Board office and ascertain the specific time, date, and place of said appearance. The Respondent shall not rely on getting notice of said appearance from the Board or Department. Should Respondent violate any condition of this probation, it shall be considered a violation of Section 489.129(i), Florida Statutes, and shall result in further disciplinary action by the Board. Should Respondent's license to practice contracting be suspended or otherwise placed on inactive status, or if Respondent leaves the practice of contracting for thirty (30) days or more, the probation period shall be tolled, and shall resume running at the time Respondent reactivates the license and/or returns to the active practice of contracting, and Respondent shall serve the time remaining in the term of probation. To ensure successful completion of probation, the Respondent's licensure to practice contracting shall be suspended for the three (3) year period of probation, with the suspension stayed for the three (3) year period of probation. The time of the suspension and the stay shall run concurrently with the period of probation, except as provided otherwise in the Final Order. If the Respondent 6 26 successfully completes probation, the suspension shall terminate. If the Respondent fails to comply with the requirements set forth in the Final Order imposed in this case, or fails to make satisfactory appearances as determined by the Board, the stay shall be lifted. Once the stay is lifted, the Respondent shall. remain in suspended status unless and until a further stay is granted by the Board. 7. It is expressly understood that this Stipulation is subject to the approval of the Board and the Department. In this regard, the foregoing paragraphs (and only the foregoing paragraphs of the Stipulated Facts, Stipulated Conclusions of Law and Stipulated Disposition) shall have no force and effect unless a Final Order incorporating the terms of this Stipulation, is entered by the Board. 8. Should this Stipulation be rejected, no statement made in furtherance of this Stipulation by the Respondent may be used as direct evidence against the Respondent in any proceeding. 9. Respondent and the Department fully understand that this Stipulation and subsequent Final Order incorporating same will in no way preclude additional proceedings by the Board and/or the Department against the Respondent for acts or omissions not specifically set forth in the Administrative Complaints attached as composite Exhibit "A" herein. 10. Upon the Board's adoption of this Stipulation, Respondent expressly waives all further procedural steps, and expressly waives all rights to seek judicial review of or to otherwise challenge or 7 27 contest the validity of the Stipulation of Facts, Conclusions of Law, the Stipulated Disposition, and the Final Order of the Board incorporating said Stipulation, or any part thereoz. 11. Upon the Board's adoption of this Stipulation, Respondent waives the right to seek any attorney's fees or costs from the Department in connection with this disciplinary proceeding, and the Department waives the right to seek any additional fees or costs from the Respondent in connection with this disciplinary proceeding. 12. Upon the Board's adoption of this Stipulation, Respondent understands and agrees that this Stipulation constitutes disciplinary action within the meaning of Section 455.227(1)(f) and 489.129, Florida Statutes. 13. This Stipulation is executed by the Respondent for the purpose of avoiding further administrative action with respect to this cause. In this regard, Respondent authorizes the Board to review and examine all investigative file materials concerning Respondent prior to or in conjunction with consideration of the Stipulation. Should this Stipulation not be accepted by the Board, it is agreed that presentation to and consideration of this Stipulation and other documents and matters by the Board shall not unfairly or illegally prejudice the Board or any of its members from further participation, consideration or resolution of these proceedings. Further, if necessary, and in order to facilitate 28 consideration of this Stipulation, the Respondent waives the requirement that the cases referenced above be heard at Final Action by a quorum of the Florida Construction Industry Licensing Board. ASKaay of WA 2000. SIGNED this QUINALDC, JR. STATE OF FLORIDA COUNTY OF Leéors The Forsgoing instrument was acknowledged before me this ag day of te "4 2000, by BRUCE ELLIOT ESQUINALDO, JR. who is ho did take an oath. eae. 67-4Skh- O ; . hit, Shiney B Walker My Commission Expires: * Bak My Commission CC873206 “yma” Expires September 22, 2003 , 2000. DSP/ms ESQUINALDO 9/20/00 s-const.stp 29
Findings Of Fact Based upon my observation of the witnesses and their demeanor while testifying, the arguments of counsel and the entire record compiled herein, the following relevant facts are found. Based on an Administrative Complaint filed on July 6, 1979, the Florida Construction Industry Licensing Board (herein sometimes referred to as the Petitioner or the Board) seeks to take disciplinary action against Licensee Richard E. Ulbricht, d/b/a Ulbricht Construction, Inc., and to impose an administrative fine or $500.00. Respondent is a registered contractor who holds the following licenses: RG 0011921 - Registered General/Active/Issued RGA 0011921 - Registered General/Active/Issued RG OB 11921 - Registered General/Delinquent RM 0014920 - Registered Mechanical/Active/Issued RM 0017586 - Registered Mechanical/Delinquent RS 0019201 - Registered Sheet Metal/Active/Issued RC 0019264 - Registered Roofing/Active/Issued Respondent was first licensed by the Petitioner during February, 1972. On June 14, 1977, Respondent qualified Ulbricht Construction, Inc., as the business entity through which he would conduct his contracting business. The construction activities involved herein took place in the City of Palm Bay, Florida. Palm Bay has no local licensing board. On June 12, 1978, Respondent entered into a contract with Michael D. and Karen K. McCammack to construct a residence for the sum of $39,900.00. Respondent received the full contracted price and the transaction closed on January 4, 1979. Chelsea Title and Guaranty Company closed the transaction for Respondent and the McCammacks on January 4, 1979. Camille Guilbeau is the manager for the Palm Bay branch of Chelsea Title and Guaranty Company. Ms. Guilbeau is in charge of all closing and as such ensures that all outstanding obligations of record are paid. In keeping with Chelsea's policy of protecting itself in the event of outstanding unrecorded claims of liens, Chelsea has a policy of requiring contractors and builders such as Respondent to declare in an affidavit that there is no outstanding work which has been performed, or labor or materials for which a lien could be filed on property in which Chelsea is closing the mortgage transaction. Respondent executed such an affidavit relative to the McCammacks' property, which Chelsea relied on to close the transaction on January 4, 1979 (Petitioner's Exhibit 4). On January 4, 1979, Chelsea Title and Guaranty Company paid Rinker Materials Corporation of Melbourne, Florida, $1,201.02 based on a claim of liens filed December 15, 1978, for materials consisting of concrete block, steel and miscellaneous items which were used on the McCammack property (Petitioner's Exhibit 6). Subsequent to the date of closing, January 4, 1979, liens amounting to approximately $2,761.62 have been filed against the McCammack property based on Respondent's failure to pay bills for labor and/or materials used in connection with the construction of the McCammacks' residence. These lien claims were filed against the McCammacks' property for a drilled well, installation of a pump and tank by Perry and Leighty, Inc., of Melbourne, Florida; two septic tanks, drains and sand supplied by Pence South Brevard Sewer and Septic Tank of Melbourne, Florida (Petitioner's Exhibits 7, 8 and 9). On December 22, 1978, Respondent entered into a contract with Robert J. Greene to construct a residence for $30,500.00 in Palm Bay, Florida. Respondent filed an affidavit of no liens relative to the Greene property on January 10, 1979. Chelsea Title and Guaranty Company relied on this affidavit to close the Greene property transaction on January 10, 1979 (Petitioner's Exhibit 5). Respondent was paid thee entire contract price. On February 12, 1979, Pence South Brevard Sewer and Septic Tank filed a claim of lien in the amount of $1,015.36 for two septic tanks, drains and sand which had been furnished the Respondent for the property of Robert J. and Alice Greene of Palm Bay, Florida, on December 15, 1978 (Petitioner's Exhibits 10 and 11). Approximately $3,496.40 was retained by Chelsea Title and Guaranty Company to satisfy outstanding recorded obligations on the date the Greene transaction closed (Petitioner's Exhibit 13). On February 21, 1979, Respondent caused to be filed in the United States District Court of the Middle District of Florida, a Voluntary Petition for Bankruptcy for Ulbricht Construction, Inc. (Petitioner's Exhibit 2 Composite).
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED: That the Respondent's contractors licenses set forth hereinabove be REVOKED. RECOMMENDED this 6th day of May, 1980, in Tallahassee, Florida. JAMES E. BRADWELL, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 6th day of May, 1980.
The Issue Whether Respondent, William T. Cooper, pled guilty to acts which directly relate to the practice of engineering or the ability to practice engineering within the meaning of Subsection 471.033(1)(d), Florida Statutes, and, if so, what penalty should be imposed on his license to practice engineering.
Findings Of Fact Respondent, William T. Cooper (Respondent), is and has been at all times material to this matter, a licensed professional engineer in the State of Florida having been issued License No. PE 20462. On March 22, 2000, Respondent was charged by criminal indictment by the Fifteenth Statewide Grand Jury in Leon County, Florida. That indictment contained twelve separate counts. On August 29, 2000, Respondent entered a Plea Agreement with the State of Florida in the Circuit Court of the Second Judicial Circuit in Leon County, Florida. Pursuant to the terms of the Plea Agreement, Respondent entered a plea of guilty to Counts Seven and Eight of the indictment and agreed to pay restitution in the amount of $84,000 to the State of Florida. The amount of restitution is equivalent to the amount of the fees that Respondent was paid for his services. In the Plea Agreement, the State agreed to nolle prosse Counts One though Six and Counts Nine through Twelve against Respondent, and it also agreed that a formal adjudication of guilt would be withheld. Finally, the Plea Agreement provided, that by entering a plea of guilty, Respondent "admits the facts of the charge." Counts Seven and Eight of the indictment charged Respondent with two counts of Grand Theft, in the first degree, and both counts provide in relevant part the following: WHITE CONSTRUCTION CO., INC., by and through its officers, representatives and employees, and WILLIAM THOMAS COOPER, JR. as part of a related transaction . . . committed GRAND THEFT in the First Degree and did thereby knowingly obtain or use or endeavor to obtain or use U.S. Currency or other property with an equivalent value to-wit "delinquency days" with a value of $100,000 or more, the property of another to-wit Florida Department of Transportation, hereinafter FDOT, with the intent to temporarily or permanently deprive said person of a right to the property, or benefit therefrom, or to appropriate the property for the defendants' own use or to the use of a person(s) not entitled thereto, by filing false and fraudulent charges or claims or lawsuits for damages allegedly attributable to the FDOT, and fraudulently opposing delinquency status declared by FDOT, that included false or fraudulent charges or claims in that the claim(s) presented contain(s), when all line items are considered together, damages and/or delays for the same days and the same equipment expenses on multiple occasions, and/or fraudulent or false claims for equipment not owned by WHITE CONSTRUCTION CO., INC. Count Seven relates to Project Number 36210-3439 on Interstate 75 (I-75) in Marion County, Florida, and to activities which allegedly occurred between January 30, 1996, and January 30, 1998. Count Eight relates to Project Nos. 36210-3440 and 36210-3441 on Interstate 75 (I-75) in Marion County, Florida, and relates to activities which allegedly occurred between July 16, 1997, and March 17, 2000. The indictment arose out of certain work performed by Respondent after he was retained by attorneys representing White Construction Company to do cost evaluation and preparation of cost damages, and to testify regarding those matters in depositions and, if necessary, at trial. Respondent was not retained by the law firm to work as an engineer. Prior to retaining Respondent, the attorneys who represented White Construction Company had retained several engineering firms to identify and analyze all the engineering issues. The attorneys who retained Respondent spent an amount in excess of $120,000.00 for those services performed by those engineering firms. Moreover, as a result of the engagement of those engineering firms and the work they performed, the engineering issues had already been identified before the Respondent was retained. During the time he was retained by the law firm that was representing White Construction Company, Respondent went to the job sites, the I-75 road improvements in North Central Florida, a total of three times. The largest continuous time the Respondent was on the construction site was four hours. In order to do the work that the law firm had retained him to do, prepare cost evaluations and calculate cost damages, Respondent received and relied on the information provided by the engineers, as well as information provided by White Construction Company and the Florida Department of Transportation. Respondent did not identify or analyze engineering issues. Rather, his responsibility was to take the analysis of various engineering issues that had been done by the engineering firms and to calculate the claim cost. In carrying out this responsibility, Respondent was not allowed to question the calculations performed by the engineers. Respondent had no knowledge that the information provided to him was in any way a misrepresentation of the truth. Since the time Respondent calculated those claims, he learned that there had been false representations made by White Construction Company. For example, Respondent later learned that statements made to him regarding equipment and labor that were on the jobs for which he prepared claims were not on the subject jobs. The attorneys that retained Respondent requested that he prepare the claims both with concurrences and without concurrences. Respondent complied with this request and sent the claims to the law firm. A "concurrency" refers to an instance where the same labor and equipment used for one or more projects are reported on two or more claims with overlapping periods of time. For example, a contractor may submit a claim for June through August, after which he submits another claim for August though December, and, finally, he submits a claim that covers the middle of December to January. The concurrency occurs if the same labor and equipment costs included in the first claim are also included in an overlapping time period in the second claim. If the labor and equipment costs in the second period are also included in an overlapping time period in the third claim, there is concurrency with respect to the labor and equipment costs that have been included on both claims for the same time period. It is a customary practice in claims preparation for contractors to ask a claims preparer to prepare separate claims that include the concurrencies as well as to prepare claims with the concurrences taken out. When the claims include concurrencies, someone must go back and take the concurrencies out. The owner or contractor decides who will be responsible for doing this. In this case, the law firm that retained Respondent requested only that he prepare the claims with concurrencies and those without concurrencies. The claims preparer does not submit the claims and has no control over which claims the contractor presents for payment. The claims which were at issue in the underlying legal proceeding were not submitted by Respondent. The claims prepared by the Respondent and certified and presented to the Florida Department of Transportation by White Construction Company totaled $30 million. However, the claims prepared by Respondent could only have totaled $30 million if all the concurrencies remained in all the claims. Respondent never submitted claims to the Florida Department of Transportation or otherwise indicated to the Department that White Construction Company was entitled to the total amount of the claims including the concurrencies. James D. Eckert, Esquire, was qualified and accepted as an attorney who is an expert in the field of criminal law and criminal defense. Mr. Eckert represented Respondent in matters related to the criminal indictment referenced in paragraph 2. He took discovery with regard to Counts Seven and Eight but never found any evidence that incriminated Respondent. The reason Respondent entered a plea of guilty to Counts Seven and Eight of the criminal indictment was for reasons other than he was guilty. Mr. Eckert recommended that Respondent enter a plea because of several compelling factors. These factors included the following: the Statewide Prosecutor was offering to withhold adjudication; the trial would have lasted at least six weeks and cost Respondent more than $150,000.00; all witnesses who could corroborate Respondent's innocence had announced that they were invoking the Fifth Amendment and would not testify; and the Plea Agreement was intended to be a total settlement of the entire situation. Both the Florida Department of Transportation and the Florida Department of Law Enforcement agreed to the terms of the plea agreement. As support for its position in this case, Petitioner relies on a few excerpts from the more than 700-page deposition transcript of Respondent taken in 1998, and its witnesses interpretation of that deposition. According to testimony presented by Petitioner, one basis of the charge against Respondent was that, at the deposition in the underlying civil action between White Construction Company and the Florida Department of Transportation, Respondent was "introduced as the engineer for White Construction Company that was most knowledgeable about claim issues that were submitted to the Department in the damage lawsuits in addition to his representations in depositions." A review of the deposition transcript, however, reveals that Respondent was not introduced as an engineer, but was represented as the person most knowledgeable about the claim damages. Petitioner also presented testimony that, with regard to claims preparation, Respondent was acting as an engineer to the extent that he was involved in "technical issue identification and development." No specific facts were given to support this general statement or the allegations in the Amended Complaint. The evidence presented by Petitioner did not establish that the conduct described in paragraphs 25 and 27, even if true, was the same conduct that was the basis of Counts Seven and Eight of the indictment. Moreover, Petitioner failed to show that, in either case, Respondent was acting as an engineer or that the conduct was directly related to the practice of engineering or the ability to practice engineering. Engineering education, training, and experience are not necessary or required to prepare claims and cost damages. This is evidenced by the fact that there are many people who prepare claims such as the ones prepared by Respondent and who use the same methodologies that were used by Respondent but who are not engineers. There was no evidence presented to support the allegation in the Amended Administrative Complaint that the acts to which Respondent pled guilty directly relate to the practice of engineering or the ability to practice engineering. Respondent has been licensed as a professional engineer since 1974. Except for the complaint that is the subject of this proceeding, Respondent has never had a complaint filed against his license.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Board of Professional Engineers enter a final order dismissing the charges in the Amended Administrative Complaint against, Respondent, William T. Cooper. DONE AND ENTERED this 6th day of January, 2003, in Tallahassee, Leon County, Florida. CAROLYN S. HOLIFIELD 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 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 6th day of January, 2003. COPIES FURNISHED: David P. Rankin, Esquire Law Offices of David P. Rankin, P.A. 3837 Northdale Boulevard, Suite 332 Tampa, Florida 33624 Douglas D. Sunshine, Esquire Florida Engineers Management Corporation 2507 Callaway Road, Suite 200 Tallahassee, Florida 32303-5267 Natalie A. Lowe, Executive Director Board of Professional Engineers 2507 Callaway Road, Suite 200 Tallahassee, Florida 32303-5267 Hardy L. Roberts, III, General Counsel Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-2202
The Issue Whether Respondent aided and abetted an unlicensed contractor to engage in contracting by pulling permits for the unlicensed contractor; whether Respondent failed to qualify a firm for whom he was acting as licensed contractor; whether Respondent acted in the capacity of a contractor other than in his own name; and, whether Respondent violated local building codes as alleged in Second Amended Administrative Complaint filed 6-30-89, and Administrative Complaint filed 7-26-89.
Findings Of Fact At all times relevant hereto, Fred S. Petersen was licensed as a general contractor by the Florida Construction Industry Licensing Board (FCILB) and issued License Nos. CG C023928 and CB CA23929 (Exhibit 1). Neither American Weatherall Industries Inc. (AWI), Mel C. Wyatt, nor Steven C. Wyatt were licensed as contractors by the FCILB (Exhibit 2). Prior to mid-August 1987, Kirk Evenstad was the qualifying general contractor for AWI. By letter dated August 20, 1987, AWI proclaimed Kirk Evenstad to be no longer working for AWI because of mismanagement (Exhibit 3). Mel Wyatt, President of AWI, testified that Everstad had stolen between $30,000 and $50,000 of materials from AWI, leaving AWI in a precarious financial situation. In order to continue in business to work out of the financial hole created by Everstad, AWI, through one of its employees, Danny O'Brien, introduced Mel Wyatt to Respondent. Respondent had known O'Brien for some 20 years and, for the proposed reason of helping O'Brien, Respondent agreed to act as qualifying contractor for AWI. To carry out this project, Respondent entered into a contract (Exhibit 4) or Employment Agreement dated July 31, 1987, in which Respondent agreed to supervise construction of projects contracted for by AWI, but the latter was to provide all material and handle all financial aspects of the contracts. Respondent received $1000 for signing this agreement and was to receive a percentage of the gross proceeds of future contracts entered into by AWI. Respondent authorized O'Brien to pull permits for AWI pursuant to Respondent's contractor's license. Although Respondent testified he gave O'Brien authorization for each specific permit pulled and did not believe he signed Exhibit 11, dated August 11, 1987, a copy of General Authorization for O'Brien to pull permits for AWI under Respondent's license, it is found as a fact that Respondent signed the original of Exhibit 11 which is a copy. Within a short period of time after executing Exhibit 4, Respondent became aware of the financial difficulties facing AWI and ceased his efforts to qualify AWI. In the latter part of 1987 (believed to be November-December), AWI reached the point that it could no longer remain solvent and filed for bankruptcy leaving several contracts unfinished for which AWI had received partial payment. Of the four contracts entered into between AWI and homeowners for additions to their houses (Exhibits 7-9 and 14), all were entered into under a printed document showing Everstad's license number; however, the building permits for Exhibits 7-9 were pulled under Respondent's license. By agreement dated August 10, 1987 (Exhibit 7), Alfred and Marjory Hauk contracted with AWI to convert a garage at their home into an office. Hauk made payments of $1000 and $2300 to AWI, the permit for the work was pulled by O'Brien under Respondent's license, but no work was ever done under this contract. AMI subsequently went out of business, and Hauk received no refund of the monies he had paid to AMI. Hauk never met Respondent. On June 12, 1987, John Davis contracted with AWI to convert an existing garage to bedroom and bath and add a garage to his home. The initial permit for this work was pulled by Kenn Covicc as contractor on June 21, 1987, and a subsequent permit was pulled by O'Brien using Respondent's license. Although Davis paid over $6000 to AWI for this work, the work stopped after the footing for the garage addition was poured. On June 2, 1987, Albert Charette entered into a contract with AWI to add a room to his house. Charette paid some $9300 of the $34,400 contract amount during the progress of the work. Differences arose between Charette and AWI involving whether the construction was being done in accordance with the plans and specifications. In September, 1987, Respondent met with Charette and submitted a proposal (Exhibit 15) to Charette to complete the project in accordance with the plans and specifications. About one week after Exhibit 15 was signed, all work stopped on the project, and Respondent never received compensation or commenced work on this contract, which he had entered into in his own name and not as a representative of AWI.
Recommendation It is recommended that Fred S. Petersen be found guilty of violating Sections 489.129(1)(e), (f) and (g), Florida Statutes, and assessed a monetary fine of $3000. ENTERED this 11th day of June, 1990, in Tallahassee, Florida. K. N. AYERS Hearing Officer Division of Administrative Hearings The Desoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 11th day of June, 1990. APPENDIX Proposed findings submitted by Petitioner are accepted, except: Finding #7, penultimate sentence which is rejected as uncorroborated hearsay. Finding #11, that portion stating the purpose of Petersen's visit to Charette was to change the licensure on the permit to Petersen is rejected. See HO #13. Proposed findings submitted by Respondent are accepted, except: Finding #4, Accepted, except with regard to Respondent's notification of termination of his association with AWI. No documentation of this act was submitted and, even though Respondent may have ultimately revoked O'Brien's authority to pull permits, this was done well after the permits were pulled. COPIES FURNISHED: Robert B. Jurand, Esquire G. W. Harrell, Esquire Department of Professional Regulation Northwood Centre 1940 North Monroe Street Suite 60 Tallahassee, FL 32399-0792 Brian A. Burden, Esquire Post Office Box 2893 Tampa, FL 33601 Fred Seely Executive Director Construction Industry Licensing Board Post Office Box 2 Jacksonville, FL 32202 Kenneth E. Easley General Counsel Department of Professional Regulation Northwood Centre 1940 North Monroe Street Suite 60 Tallahassee, FL 32399-0792
