Findings Of Fact Respondent, Fred H. White, was licensed as a registered general contractor in Florida under License Number RG 0005082 in February, 1968. Thereafter, in April, 1970, Respondent was issued his license to qualify BUILDINGS BY WINCHESTER, INC. His license went delinquent on July 1, 1973, however, it was reinstated and placed on active status in July, 1977 when Respondent qualified CAPITAL STONE COMPANY under that license. The license was to expire on June 30, 1981. In July 1982, it was again issued to Respondent qualifying as an individual and was, at all times pertinent to the issues alleged herein, active. On December 2, 1982, Respondent entered into a contract with Mr. and Mrs. E.M. Powell, of Lot 10, Shell Harbour, St. George Island, Florida, to build a 1736 square foot home for them for the contract price of $74,120.00. The plans and specifications for this construction were listed by number on the hand written contract signed by Respondent and the Powells and witnessed by Ronald Jones. This contract was signed after Mr. Powell procured the issuance of a building permit to build a 1668 square foot residence, estimated to cost $52,500.00 on his Shell Harbour property. Mr. Powell-indicates that the application for the building permit was made by his architect, Mr. Clayton Anderson, however, the application and permit itself reveals no place thereon where Mr. Anderson's signature appears. In fact, the signature of the applicant, undated, is that of Mr. Powell, but the permit, number 4512, was issued on November 11, 1982. Both Mr. Powell and the Respondent attribute the difference in size of the building and the price to changes made and agreed upon by the parties subsequent to the issuance of the permit and prior to the signing of the contract. The contract in question is what could be best described as a "bare bones" contract. The basic legal requirements of a contract are present in that the parties are identified, consideration is reflected, there is a specific legal purpose, and obviously an offer and acceptance with, at the time of signing, an apparent meeting of the minds. This document is, however, an invitation to dispute, as there is no estimated time of completion or any other detail which might serve to more clearly identify the rights and obligations of the parties. Mr. Powell indicates that the Respondent estimated three months would be necessary to complete the project and that Mr. White indicated he would be on the site just about every day. Mr. White tells a substantially different story, however, in that he contends he had other projects under construction at the time, projects with which Mr. Powell was totally familiar, and that he, Respondent, was present when necessary, to supervise as necessary. Mr. White denies that he was the general contractor for Mr. Powell on this job. He contends that he was the framing contractor and that Mr. Powell served as his own general contractor. He contends, and Mr. Powell admits, that much of the building material purchased was picked out by Mr. Powell. On the other hand, much was also ordered by Respondent. Neither side could give a detailed accounting of who bought what and no evidence was presented to show who did what in any detail. Certain of the subcontractors were arranged for by Respondent. Others were arranged for by Mr. Powell. All bills were paid by Mr. Powell. According to Respondent, he signed the contract as general contractor only so that Powell could get a Veterans' Administration loan and issued the completion certificate as general contractor because "that's the way it was done." Be that as it may, the house was subsequently completed, and at the closing on or about October 31, 1983, Mr. White, as general contractor, presented Mr. Powell with a contractor's affidavit in which he indicated that all subcontractors, laborers and material suppliers had been paid in full; that all building codes had been complied with; that all installed equipment including roofing, ventilators, windows, skylights, fireplaces, insulation, etc., were installed according to building code and manufacturers' instructions and that all manufacturers' guarantees and warranties were thereby validated by the proper installation of the product. Respondent orally warranted he would stand behind his work for one year. Mr. White, as was indicated above, denies he was the general contractor but insists that he was properly supervising those portions of the project which it was his responsibility to supervise. Mr. Powell, on the other hand, insists that Respondent was frequently absent and there were several periods when he did not appear on the site to supervise construction of the property for extended periods of days. There was no detailed evidence, however, as to which days were involved, but it is clear from all the evidence, including the contract and the certificate as well as Mr. White's testimony, that he was the general contractor and had a responsibility to adequately supervise the construction regardless of whether the subs in question were directly hired by him or were hired by Mr. Powell. It is inconceivable that Respondent would have continued to perform under the contract if he did not feel that he had a responsibility to do so and that, for the most part, matters were going as they were envisioned to go under the terms of the agreements between the parties. After installation and from the very beginning, Mr. Powell noticed a problem with the upper outside fixed windows on the land side of the house which had been picked out by Respondent. It appears that water was leaking in the vicinity of these triangular windows and ran down the interior walls under the two outermost windows into the light fixture over the sink and down onto the counter tops. Water also ran down the wall over the entrance door and damaged a closet ceiling near that area. As a result, part of the ceiling fell in the closet the counter top in the kitchen began to swell and pull away from the wall and the drawers in the closets began to bind. When these leaks first occurred, even before the house was completed, Mr. Powell notified the Respondent both orally and in writing. Respondent promised to repair the windows and did, on several occasions, come out and attempt repairs by caulking around the windows. However, these repairs were ineffective and each time it would rain, water would again come in. Respondent never inspected right after a rain, however. Consequently, on December 19, 1983, Mr. Powell wrote a letter of complaint to Respondent which he sent by Registered Mail to that address utilized by Respondent--Route 8, Box 85B, Tallahassee, Florida, 32301. Respondent was left several notices by postal authorities but failed to claim the letter from the post office and it was returned to the sender undelivered. Mr. Powell, on February 15, 1984, hand-delivered a similar letter outlining the discrepancies in the house to Respondent on the steps of the county courthouse in Apalachicola, Florida, but Respondent denies ever having received the letter. Respondent attempted to explain why he did not receive notice of the letter sent to him by Registered Mail. His explanation was so convoluted and involved as to be incomprehensible and not capable of belief. By the same token, Mr. Powell has a faulty memory of many of the things recited by Respondent. This is obviously a situation where both parties see the matter in the light most favorable to them and, unfortunately for the resolution of this dispute, there is little independent evidence of what happened. However, in resolution of the matter, it is found that though the first letter was not received, the second letter was, and Mr. White was given ample notice, aliande the letters, of the defects in the installation of these windows as well as the chimney cap through which, reportedly, water was entering the chimney and rusting the firebox of the fireplace. With regard to this chimney, Respondent agreed to install a new chimney cap, just to keep the peace, even though he did not feel there was anything wrong with the installation of the original one. Mr. Powell was to get it, but did not do so, however, claiming that he was never instructed by Respondent as to what kind to get or when to get it. As to the allegedly deficient cap, Respondent describes it as a tubular piece of metal perforated all around so that the smoke can get out but hot ash is retained. Since there are holes in the device to let the smoke out, water can get in through those holes when it rains. Respondent claims that what is needed, if a total absence of water is desired, is to place a cover over the cap. Respondent contends that all fireplaces built that way with an uncovered cap, admit water to some degree. There was no evidence presented by the Petitioner to contradict Respondent's assertion or to show that Respondent improperly installed the chimney cap. With regard to the windows, however, after Mr. Powell had made the repeated efforts to have Respondent repair the windows so that the leakage would stop, he subsequently contracted with another builder to replace them. When this second builder examined the windows, it was determined that they were too small for the opening in which they were placed and that they were improperly installed. This left a large area around the window which Respondent had attempted to fill with caulking, but the space was so large that caulking itself was insufficient to correct the problem. The second contractor determined it would be necessary to remove the windows and install appropriate sized windows in a proper fashion and this was done at a cost of in excess of $500.00. The windows have not leaked since. Respondent contends that the windows were properly installed and caulked and that the leak did not come from the space around the windows. Instead, he contends, the leak was caused by improper caulking of the batting above the window below the soffit which was the responsibility of the painter who was, in fact, Mr. Powell's son-in-law and hired by him. Even the builder who replaced the windows agrees that caulking of the batting would be the responsibility of the painter, but he contends that this leak was not caused by this deficient caulking but by the improperly sized and installed windows. This was Respondent's responsibility and it is so found. There is no evidence, aliunde that described above which in any way shows that Respondent made any misleading, deceptive, or fraudulent misrepresentations in the practice of contracting. Though no detailed information was presented regarding the actual number of days Respondent was absent from the job site, there was some substantial evidence on the part of Mr. Powell, who had no reason to lie, that Respondent was absent from the job site quite frequently.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is, therefore RECOMMENDED that Respondent be found guilty of imcompetence in the installation of the windows in question in Mr. Powell's house, as alleged in the Administrative Complaint that the remaining allegations be dismissed that Respondent be reprimanded that his license be placed on probation for a period of two years under such terms and conditions as the Construction Industry Licensing Board shall determine appropriate, and that he make restitution to Mr. Powell in the amount of $577.23. RECOMMENDED this 11th day of June, 1986, in Tallahassee, Florida. ARNOLD H. POLLOCK, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 11th day of June, 1986. Copies furnished: Fred Seely Executive Director Construction Industry Licensing Board P. O. Box 2 Jacksonville, Florida 32201 Errol H. Powell, Esquire Department of Professional Regulation 130 N. Monroe Street Tallahassee, Florida 32301 Fred H. White, pro se Route 8, Box 85-B Tallahassee, Florida 32301 Fred Roche Secretary Department of Professional Regulation 130 N. Monroe Street Tallahassee, Florida 32301 APPENDIX The following constitutes my specific rulings pursuant to Section 120.59(2) Florida Statutes, on all of the Proposed Findings of Fact submitted by the Petitioner herein. 1. Adopted in Finding of Fact 1. 2-4. Adopted in Finding of Fact 2. 5-6. Adopted in Finding of Fact 6. Adopted in Finding of Fact 3. Adopted in Finding of Fact 5. Adopted in Finding of Fact 14. Adopted in Finding of Fact 5. Adopted in Finding of Fact 7. lla. Irrelevant. Subordinate to the finding that Respondent was the general contractor. Adopted in Finding of Fact 8. Irrelevant. 15-16. Adopted in Finding of Fact 8. 17. Adopted in Finding of Fact 12. 18-19. Adopted in Findings of Fact 9 and 10. 20-21. Adopted in Finding of Fact 12. 22-25. Adopted in Finding of Fact 9. 26-27. Adopted in Finding of Fact 13. 28. Irrelevant. 29-31. Adopted in Finding of Fact 13. Adopted in Finding of Fact 14. Subordinate to Finding of Fact 13. Adopted in Finding of Fact 13. Adopted in Finding of Fact 14. Adopted in Finding of Fact 12.
Findings Of Fact Respondent is a registered general contractor having been issued license No. RG 0019051. (Stipulation.) At all times pertinent to the charges, respondent engaged in the business of contracting under the name of Atlas Associates, Inc., of which he was the president. (Testimony of Robinson; Stipulation.) Atlas Associates, Inc., however, was not qualified, pursuant to Section 468.107, Florida Statutes (1977), to engage in the business of contracting. (Stipulation.) Respondent's registration authorized him to engage in the business of contracting only in Hillsborough County. He was not qualified to contract in any other county. He knew that he was not authorized to pull building permits in Pasco County. (Tr. 5, 171-172.) (Testimony of Robinson; Stipulation.) II. Atlas Associates, Inc., entered into a contract with Darryl R. Sutphin and his wife to construct a residence in Pasco County at 631 North Shore Drive, Lake Padgett, Florida. Respondent executed and performed under this contract as president of Atlas Associates, Inc. (Stipulation.) Respondent obtained the assistance of his brother-in-law, James Weinman, president of Masterpiece Homes, Inc., which was authorized to engage in contracting and pull building permits in Pasco County. At Mr. Weinman's request, John Weinman, an employee of Masterpiece Homes, Inc., pulled the building permits for the Sutphin job in the name of Masterpiece Homes, Inc. However, neither Salvatore Carollo, its licensed contractor, nor any other licensee employed by Masterpiece Homes, Inc., was involved in or supervised the subsequent construction of the Sutphin residence. (Tr. 71.) (Testimony of Weinman, Robinson, Carollo, Sutphin.) Construction of the Sutphin residence was financed by Fidelity Federal Savings and Loan Association ("Fidelity Federal"). An agreement was entered into between Fidelity Federal, the Sutphins, and Atlas Associates, Inc., whereby Fidelity Federal was to disburse the loan proceeds to Atlas Associates, Inc., in four draws. In conjunction with the payment of each draw, Fidelity Federal required respondent, on behalf of Atlas Associates, Inc., to execute standard no-lien affidavits certifying the following: All the persons, firms, and corporations who have furnished any labor, services and/or materials in connection with the construction or improvements on the real estate [in question]. . .have been paid in full as of the date of this affidavit. . .The undersigned owner further certifies that he has received no notices of unpaid bills or claims affecting the foregoing real estate except as are shown above. (P-5, P-6, P-7.) (Testimony of Hager; P-4, P-5, P-6, P-7.) Atlas Associates, Inc., contracted with Nu-Air Manufacturing Company ("Nu-Air") to install windows and screens at the Sutphin residence. On October 16 and 22, 1979, Nu-Air installed the windows and, except for installing the screens, provided all the services and materials required under the contract. In November, 1979, Nu-Air mailed invoices totaling $700.56 to Atlas Associates, Inc. When the invoices were not paid, Nu-Air's credit manager sought payment by directly contacting a representative of Atlas Associates, Inc. No payment has been made, and the $700.56 remains unpaid. A claim of lien was subsequently filed on January 14, 1980. Yet, on October 19, 1979, and February 14, 1980, respondent executed Fidelity Federal's standard affidavits certifying that there were no unpaid invoices and that all firms who furnished labor or materials in connection with the Sutphin job had "been paid in full as of the date of this affidavit." As a result, Nu- Air suffered financial loss. (Testimony of Boyles; P-6, P-7, P-8, P-9, P-10.) On October 24, 1979, another subcontractor, Nuccio Heating and Air Conditioning ("Nuccio"), contracted with Atlas Associates, Inc., to furnish and install central heating and air conditioning units at the Sutphin job. Nuccio completed installing the units required by the contract on November 4, 1979. An invoice was mailed to Atlas Associates, Inc., by November 6, 1979. When it was not timely paid, Nuccio contacted respondent in December, 1979. Nuccio was never paid for its labor and materials; on July 22, 1980, it filed a claim of lien for a total of $2,927. Since Nuccio subsequently repossessed the condensing units, the amount that is now due and remains unpaid is $1,462. Yet, on February 14, 1980, respondent executed and submitted to Fidelity Federal the required affidavit certifying that there were no unpaid invoices and that all firms furnishing labor and material for the Sutphin job had been fully paid. As a result, Nuccio suffered financial loss. (Testimony of Nuccio; P-7, P-8, P-9, P-12.) On January 2, 1980, another subcontractor, W. W. Drywall, contracted with Atlas Associates, Inc., to install drywall for the Sutphin job. The drywall work was completed in early January, 1980, and an invoice was mailed to Atlas Associates, Inc., on or about January 12, 1980, for $2,591.06. On February 14, 1980, W. W. Drywall received a partial payment of $1,000, but the balance of $1,591.06 remains due and unpaid. W. W. Drywall subsequently filed a claim of lien for this amount. Yet on February 14, 1980, respondent executed and submitted to Fidelity Federal a standard affidavit certifying that there were no unpaid invoices and that all firms furnishing labor and materials for the Sutphin job had been paid. As a result, W. W. Drywall has suffered financial loss. (Testimony of West; P-7, P-13, P-14.) III. Respondent admits that when he executed the first October 19, 1979, affidavit, he knew that there were subcontractors which had not been paid. (Tr. 182-183.) He explains that he intended to pay them with the money he received from the draw. By the time he signed the February 14, 1980, affidavit, subcontractors had begun submitting bills directly to the loan officer of Fidelity Federal. He assumed, without checking or inquiring, that the subcontractors had been paid. (Testimony of Robinson.) Respondent was unaware of the Construction Industry Licensing Law requirement that registered contractors must register the corporate names under which they are doing business. Thus, his failure to qualify Atlas Associates, Inc., was not a willful or intentional violation of the Construction Industry Licensing Law. (Testimony of Robinson.) Between October, 1979, and February, 1980, respondent's working relationship with Mr. Sutphin began to deteriorate for reasons not material here. As a result, Mr. Sutphin began to actively participate in the project and deal directly with the various subcontractors. (Testimony of Robinson, Sutphin.)
Recommendation Based on the foregoing, it is RECOMMENDED: That respondent's license be suspended for a period of two (2) years. DONE AND RECOMMENDED this 11th day of August, 1982, in Tallahassee, Florida. R. L. CALEEN, JR. 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 11th day of August, 1982.
The Issue The issues in this case are whether Respondent, Gerardo Quintero, committed the offenses alleged in an Administrative Complaint issued by Petitioner, the Department of Business and Professional Regulation, on December 6, 2006, and, if so, what penalty should be imposed.
Findings Of Fact Prior to June 2005, Respondent received what appeared to be a valid Miami-Dade Building Business Certificate of Competency. Upon receipt, Respondent applied to the Department of Business and Professional Regulation (hereinafter referred to as the “Department”) to obtain a registered contractor’s license using the Certificate of Competency. Based on the Certificate of Competency, the Department issued Respondent a registered contractor’s license bearing license number RF11067268. Respondent also applied for a certificate of authority for his business, Q Plumbing Services Corp. (hereinafter referred to as “QPSC”). Based on the Certificate of Competency and the registered contractor’s license being granted, the Department issued a certificate of authority to QPSC, QB 42825. Subsequent to the Department’s issuance of both the registered contractor’s license to Respondent and the certificate of authority for QPSC, Respondent and the Department learned that the Miami-Dade Building Business Certificate of Competency (hereinafter referred to as the “BCCO”) obtained by Respondent was not a valid certificate. Respondent’s actions were not as a result of any fraud or intentional action on the part of Respondent; however, it is acknowledged by all parties that the Miami-Dade Building Business Certificate of Competency obtained by Respondent was not valid. At no time during the application process or upon attesting to the qualified business license application did Respondent have knowledge that the Miami-Dade BCCO employees were engaged in a scheme to defraud the public. At no time during the application process or upon attesting to the qualified business license application did Respondent have knowledge that Respondent obtained the BCCO Competency Card in deviation of any state laws or rules, or local ordinances. At no time during the application process or upon attesting to the qualified business license application did Respondent have knowledge that the BCCO Competency Card was not a valid certificate. At no time during the application process or upon attesting to the qualified business license application did Respondent have knowledge that Respondent’s attestation on the application was inaccurate. At no time during the application process or upon attesting to the qualified business license application did Respondent have knowledge that the approved BCCO qualifying board did not approve the Competency Card. At no time did Respondent have knowledge that any documents Respondent submitted to the Department contained false, forged, or otherwise inaccurate information or material. At the time the Department issued the registered contractor’s license and subsequent certificate of authority on the sole basis of the Miami-Dade Building Business Certificate of Competency presented by Respondent, the Department properly issued the registered contractor’s license based on the information submitted to it. The parties stipulated that the Respondent was not entitled to the registered contractor’s license and certificate of authority because the Miami-Dade Building Business Certificate of Competency was not a valid certificate. At the time of application to the Department, Respondent was not qualified by any local jurisdiction or any other method necessary to receive a registered contractor’s license from the Department.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered by the Department finding that Gerardo Quintero violated the provisions of Sections 489.129(1)(a) and (m), and 455.227(1)(h), Florida Statutes, as alleged in Counts I, III, and IV of the Administrative Complaint; dismissing Count II of the Administrative Complaint; requiring that Respondent pay the costs incurred by the Department in investigating and prosecuting this matter; giving Respondent 30 days to voluntarily relinquish his license; and revoking Respondent’s license if he fails to voluntarily relinquish it within 30 days of the final order. DONE AND ENTERED this 13th day of December, 2007, in Tallahassee, Leon County, Florida. S LARRY J. SARTIN 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 13th day of December, 2007. COPIES FURNISHED: Matthew D. Morton Assistant General Counsel Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399 Timothy Atkinson, Esquire Oertel, Fernandez, Cole & Bryant Post Office Box 1110 Tallahassee, Florida 32302 Richard A. Alayon, Esquire Alayon & Associates, P.A. 4551 Ponce de Leon Boulevard Coral Gables, Florida 33146 G. W. Harrell, Executive Director Construction Industry Licensing Board Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792 Ned Luczynski, General Counsel Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792
