The Issue Respondent was charged in a November 19, 1998, Administrative Complaint, filed December 7, 1998, with ten counts of professional violations. The statutory violations alleged are: Count I: Section 489.129(1)(a), Florida Statutes (1995), obtaining a certificate or registration as a Certified Roofing Contractor by fraud or misrepresentation; Count II: Section 489.129(1)(h)2, Florida Statutes (1995), by committing mismanagement or misconduct in the practice of contracting that caused financial harm to a customer; Count III: Section 489.129(1)(k), Florida Statutes (1995), by abandoning a construction project in which the contractor is engaged or under contract as a contractor; Count IV: Section 489.129(1)(m), Florida Statutes (1995), by committing fraud or deceit in the practice of contracting; Count V: Section 489.129(1)(n), Florida Statutes (1995), by committing incompetency or misconduct in the practice of contracting; Count VI: Section 489.129(1)(p), Florida Statutes (1995), by proceeding on a job without obtaining the applicable local building department plumbing permits and inspection; Count VII: Section 489.129(1)(p), Florida Statutes (1995), by proceeding on a job without obtaining the applicable local building department electrical permits and inspection; Count VIII: Section 489.129(1)(p), Florida Statutes (1995), by proceeding on a job without obtaining the applicable local building department framing, insulation, and/or final inspections; Count IX: Section 489.129(1)(o), Florida Statutes (1995), by committing gross negligence, repeated negligence, or negligence resulting in a significant danger to life or property; and Count X: Section 389.129(1)(c), Florida Statutes (1995), by violating any provision of Chapter 455, to wit, Section 455.227(1)(o), practicing beyond the scope permitted by law and performing professional responsibilities the licensee knows, or has reason to know, he is not competent to perform.
Findings Of Fact At all times material to the allegations of the Administrative Complaint, Respondent was a Certified Residential Contractor, having been issued license number CR C057235, by the Florida Construction Industry Licensing Board. At the time of hearing, Respondent's license had been suspended. Since January 27, 1998, Respondent also has been a Certified Roofing Contractor, having been issued license number CC C057649, by the Florida Construction Industry Licensing Board. At no time material was Respondent licensed, registered, or certified to perform electrical work. At no time material was Respondent licensed, registered, or certified to perform plumbing work. On or about February 27, 1997, Respondent entered into a $39,050.40, contract with Reuben M. Adams to restore and repair the Adamses' home at 7037 Mark Street in Jacksonville, Florida, which had been destroyed by fire on February 1, 1997. The work contracted-for included complete restoration of the living room, kitchen, two hallways, two bathrooms, four bedrooms, a laundry room, and a dining room; restoration of heat and air conditioning; and a virtually new roof. Among the electrical and plumbing restoration involved, Respondent specifically agreed to install a ceiling fan and a light kit in the living room; install a sink and faucet for the sink and a ceiling light fixture and vented range hood in the kitchen; install a ceiling light fixture in a hallway; remove floor mounted with tank commode and reinstall a floor mounted with tank commode; replace commode sink, remove and reinstall sink, install new faucet for the sink, install shower head and faucet set for bathtub, install bathroom exhaust fan and light kit for ceiling fan in the bathroom; install ceiling fan and light kit in bedrooms; replace faucet for sink and provide a shower head, faucet set and install a ceiling light fixture in the second bathroom; install a ceiling fan and light kit in the third and fourth bedrooms and dining room and hallway; install 960 square foot electrical and provide temporary utilities for dimensions of 40 feet by 24 feet by eight feet. These types of activities require electrical and plumbing licensure. On or about April 15, 1997, Respondent received and endorsed the first draw check of $22,245.23 from the Adamses. In May 1997, Respondent's site supervisor, Aaron Mitchell, requested that Mr. Adams give him $1500.00, cash to buy materials because Respondent was out of town and Mitchell could not perform the work without the materials. Mr. Adams paid this amount in cash to Mr. Mitchell but was never reimbursed by either Mr. Mitchell or Respondent. In early June 1997, the Adamses became concerned because little work had been completed on the restoration of their home. The house had been cleaned out and gutted and the slab for the room addition had been poured. Mr. Adams contacted Respondent several times about the lack of work being performed on the home. Between mid-June and early July 1997, Respondent completed the framing and installed the roof. On or about July 24, 1997, the Adamses released the second draw of $11,122.62 to Respondent, and Respondent deposited the money into his bank account. In approximately August 1997, Respondent ran electrical wire in the roof, installed electrical outlets in the walls, and completed the electrical work, including installing electrical outlets in the walls. Mr. Adams personally observed Respondent and his workers performing electrical wiring. The electrical work performed by Respondent required licensure as an electrical contractor, that a permit be obtained prior to the electrical work being performed, and that inspections of the electrical work be made before the walls were sealed up over the electrical work. Respondent failed to obtain a permit or to have an electrical inspection performed. Respondent completed the electrical work and covered up the electrical work with the walls without an inspection being performed. Respondent performed plumbing work on the Adamses' home, although he held no plumbing license. Respondent failed to pull a permit for the plumbing work and failed to call for the required inspections. Ultimately, he covered up the plumbing work with the walls without an inspection having been performed. The City of Jacksonville "red-tagged" the home for this reason. The effect of "red-tagging" was to prevent occupancy until compliance with the building code was assured. Such assurance required inspection, which in turn, ultimately required that at least the interior walls be taken down. Respondent also never obtained a framing, insulation or final inspection on the project. In October 1997, the Adamses filed complaints against the Respondent with the State Attorney's Office and the Department of Business and Professional Regulation (Case No. 97-18544). On or about October 31, 1997, Respondent signed a Letter of Intent with Mr. and Mrs. Adams agreeing to have their home ready for occupancy no later than December 1, 1997, and promising that Respondent would be responsible for all permits and inspections necessary for the project to be considered complete. At that time, Respondent apologized for all of the delays, the decline in their relationship, and the stress he had caused. Respondent and Mrs. Adams prayed together, and Respondent promised that from that day forward, the Adamses would see progress on their home every day until it was finished. Respondent did not abide by the requirements set forth in the Letter of Intent. Specifically, he never obtained the required permits and inspections. Mr. Adams confronted Respondent about the permits and the inspections, and the Respondent indicated that he had the permits at his office. He assured Mr. Adams that he was taking care of the electrical permit. In December 1997, Respondent requested that Mr. and Mrs. Adams drop their complaint with Petitioner Department of Business and Professional Regulation because he had applied for his roofing license and the complaint was holding up that roofing license being granted. Respondent told the Adamses that if they would drop their complaint, he could obtain his roofing license, which would allow him to generate money to complete their project. Around mid-January 1998, Respondent requested that the Adamses release the final construction draw and drop their complaints with Petitioner and the State Attorney. Respondent stated that if they paid him the final draw of $5,682.55, he would work every day on their project and have it ready for them to move in no later than February 4, 1998. The Adamses paid Respondent the remaining construction draw of $5,682.55, and withdrew their complaint with Petitioner. Respondent accepted the final draw on or about January 27, 1998. Respondent obtained his roofing license after the Adamses withdrew their complaint with Petitioner. After receiving the final construction draw, Respondent did minimal work on the project in January. On or about February 23, 1998, the Adamses reinstated their complaint with Petitioner against Respondent, resulting in the instant case. Respondent has not returned to work on the Adamses' project since March 1998. As of March 1998, Respondent had been paid the full contract price, but the home remained uninhabitable. The workmanship was substandard and the project was less than 100 percent complete. As a result of Respondent's unlicensed electrical and plumbing work on the Adamses' home and his covering-up his work with the walls, the Adamses were unable to obtain an inspection without the walls being taken down. This in turn, required that the walls be rebuilt. In addition to the money paid to Respondent for work improperly done or not done at all, the Adamses had to pay another builder $14,900.00, to remove the walls, re-install the electrical wiring and plumbing which had been completed or partially completed by the Respondent, and complete the renovation. Testimony of Roy Brand, Raymond Smith, and Douglas Arnold supports a finding that Respondent committed repeated negligence and created a dangerous condition when he performed electrical and plumbing work which he was not licensed to do and which he did not have the knowledge to perform. Particularly upon the testimony of Mr. Brand, it is clear that three types of very serious electrical installation errors or omissions had been performed once or more than once by Respondent. At least one of these would have been sufficient, under certain circumstances, to burn down the entire house. By installing electrical universal polyethylene boxes and using them as junction boxes, a purpose for which they were not designed, Respondent created what Mr. Brand described as "short of a 'Molotov Cocktail' that would burn your house down just about as quick." Likewise, one serious error occurred in the type of glue Respondent used on plumbing pipe throughout the home. Mr. Brand gave credible expert evidence that the construction undertaken by Respondent was undertaken for a reasonable amount of $39,050.40, and that a reasonable time to construct the entire contract would have been two and one half to three months after permitting. In addition to the money Mr. and Mrs. Adams paid to Respondent and the substitute contractor, Douglas Arnold, they incurred additional expenses and spent additional time out of their home as a result of Respondent's shoddy workmanship and unlicensed electrical and plumbing work. The Adamses also had to take out a second mortgage of $18,800.00 at 16.3 percent interest for 15 years in order to finance the repairs necessitated by Respondent's substandard and incompetent work, so that they could move back into their home. Mr. and Mrs. Adams and their child had to live somewhere during construction. Their insurance company paid them $750.00, for each of three months. However, they were unable to move back into their home from August 1997 until November 1998, as a direct result of Respondent's incompetence and misconduct.3 During this fifteen-month period, the Adamses paid $300.00 rent per month to Mrs. Adams' mother, plus an additional $100.00 per month for water and utilities, and storage fees of $119.00 per month to a storage facility for keeping their items which had not been destroyed by the fire The Adamses also incurred an additional expense of $1,500.00, for an air conditioning unit which Respondent was to have purchased under their contract with him.
Recommendation Upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Construction Industry Licensing Board enter a final order that: Finds Respondent guilty of one violation of each of the following: Sections 489.129(1)(h)(2); (1)(k); (1)(m); (1)(n); (1)(p); (1)(o); and (1)(c), Florida Statutes (1995); Revokes Respondent's General Contractor's and Roofing Contractor's licenses; Imposes a total fine for all violations, in the amount of $30,000.00; and Requires Respondent to pay restitution to Mr. and Mrs. Adams in the amount of $49,835.00. DONE AND ENTERED this 1st day of May, 2000, in Tallahassee, Leon County, Florida. ELLA JANE P. DAVIS 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 1st day of May, 2000.
Findings Of Fact Based upon my observation of the witnesses and their demeanor while testifying, documentary evidence received and the entire record compiled herein, I make the following relevant factual findings. Petitioner is the State agency charged with regulating the practice of contracting. During times material hereto, Respondent was licensed by the Construction Industry Licensing Board as a certified air conditioning contractor having been issued licensed number CA C022410. Respondent has been so licensed since May 1982. During December, 1982, Petitioner submitted a change of status application requesting that his license be changed to qualify for All County Air Conditioning (All County) in Fort Lauderdale, Florida. That change of status application was approved by Petitioner and Respondent has remained the qualifier for All County continuously and his license has been renewed as such and is active for the period 1987-1989 (Petitioner's Composite Exhibit 4). On September 4, 1985, Respondent through the entity All County, entered into a contract with Ernest D'Esposito to "furnish and install 1 new Whirlpool 2 Ton condensing unit, with new slab, hook-up to existing pipes and electric". The agreed upon price to complete the work was $950.00 with a five year guarantee on the compressor and a one year guarantee on parts and labor. (Petitioner's Exhibit 1). Respondent commenced the work as agreed and completed the work as scheduled. Respondent did not obtain a permit for said work from the local building department nor was a permit posted on the job site when Respondent commenced work on the project. While the work was in progress, Respondent did not obtain any inspections for the work from the local building department. A record search of the Pembroke Pines Building and Zoning Department revealed that Respondent did not obtain a permit to install the air conditioning unit at D'Esposito's residence. (Testimony of Marie Bogart, records custodian, Building and Zoning Department, City of Pembroke Pines). Rene Pena, chief mechanical inspector for the City of Pembroke Pines, is the person who checks the installation of all air conditioning work in the City of Pembroke Pines. Mr. Pena did not perform any inspections on D'Esposito's job nor was he requested to perform any inspections by Respondent. Respondent testified at the hearing and admits that no permit was obtained for D'Esposito's job. However, Respondent offered his opinion that the code did not require a permit and that his failure to obtain one was not a violation of the South Florida Building Code. Finally, Respondent offered that to the extent that there was a technical violation of the law, it was not a willful violation and that imposition of a fine would not be appropriate in this instance as his firm "tries to stay within the confines of the South Florida Building Code". Respondent acknowledged that he is the person responsible for ensuring that permits are obtained when required for completion of projects.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: Petitioner, Construction Industry Licensing Board, enter a Final Order imposing an administrative fine against Respondent in the amount of five hundred dollars ($500.00), the payment of which shall be made to Petitioner within a time frame deemed appropriate by Petitioner. Respondent's license as a certified air conditioning contractor be placed on probation for a period of thirty (30) days. RECOMMENDED this 28th day of January, 1988, 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 28th day of January, 1988. COPIES FURNISHED: G. Vincent Soto, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 Michael B. Falls 4611 Southwest 30th Way Fort Lauderdale, Florida 33312 Fred Seely, Executive Director Department of Professional Regulation, Construction Industry Licensing Board Post Office Box 2 Jacksonville, Florida 32201 Tom Gallagher, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 William O'Neill, Esquire General Counsel Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750
The Issue The issue posed for decision herein is whether or not the Respondent, Melvin Stewart, t/a Depar Motel, has engaged in acts and/or conduct, as more particularly set forth in the Notice to Show Cause filed herein, which warrants the Petitioner's proposed sanctions of suspending or revoking the Respondent's license to operate a motel or the assessment of a civil penalty.
Findings Of Fact Based upon my observation of the witness and his demeanor while testifying, the arguments of counsel and the entire record compiled herein, the following relevant facts are found. Melvin Stewart, trading as the Depar Motel, is licensed by the Petitioner and holds license control No. 23-13405H. The Depar Motel is situated at 301 Northwest 62nd Street, Miami, Florida, and is of concrete block and stucco construction. The motel has approximately sixty-three (63) rooms plus a bar and lounge. Rogers Brown is an inspector employed by the Petitioner since approximately 1976. During his tenure, there has been a brief hiatus in his employment during which time he was on leave with the Department of Health and Rehabilitative Services, State of Florida. During the course of his employment, Inspector Brown made a routine inspection of the Depar Hotel on February 7, 1979, and noted that the Depar Motel was not being properly maintained, for reasons set forth hereinafter for which the Respondent, Melvin Stewart, was cited as violating Chapter 509, Florida Statutes, and Rule Chapters 7C-1 and 7C- 3, Florida Administrative Code. Without reciting herein the numerous alleged violations set forth in the Notice to Show Cause /1 or reciting in toto inspector Brown's testimony, the following is a brief summary of the conditions he found at the Depar Motel during his inspection on February 7, 1979. Inspector Brown found that the fire extinguishers at the Depar Motel were located at travel distances of more than seventy-five (75) feet apart. He found inadequate electrical wiring in several rooms, in that electrical wires were burned and exposed, air conditioning wires were exposed in several apartments, electrical shaving receptacles were exposed, electrical wall sockets did not have adequate cover plates and several rooms had no sockets in the bedrooms and bathrooms. (Apartments 33, 51, 10 and 19.) Inspector Brown found several apartment doors with improper locking devices; were poorly sealed; had loose door frames and broken jalousies in the doors and windows. (Apartments 13, 7, 15, 17, 27, 30, 32, 33, 34, 39, 40, 52 and 55.) He also found several rooms which had holes in the bathrooms and living room walls. (Apartments 7, 8, 16, 17, 18, 19, 24, 33, 39, 49, 52, 55, 57 and 59.) Inspector Brown also found several apartments which had inoperable jalousie windows and doors. (Apartments 4, 5, 11, 15, 24, 32, 33, 34, 37, 38, 39, 52, 57 and 60.) Inspector Brown found several rooms with clogged plumbing drains and he observed standing water in several plumbing fixtures, (Apartments 7 and 4.) He also found leaking faucets and hot water handles missing in several apartments. (Apartments 4, 16, 40, 52, 55 and 59.) Inspector Brown also found that several apartments lacked screen windows and that the screen windows in several apartments were torn. (Apartments 1, 4, 8, 10, 12, 15, 28, 29, 32, 34, 40, 51 and 60,) He also observed rodent droppings and roaches in several apartments. (TR. 70-73.) Inspector Brown found weeds, trash and debris outside the building. He noted that several apartments had soiled mattresses and in others the mattresses had no covers. (Apartments 4, 6, 30, 32 and 33.) Finally, Inspector Brown testified that the Respondent did not have on file with the Division a form No. 208, which is required of all licensees. 2/ Chapter 7C-3.02, Florida Administrative Code. The Respondent did not offer any witnesses to refute the charges set forth herein in the Notice to Show Cause or to counter the credited testimony of Inspector Rogers Brown.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED: Upon issuance of the Division of Hotels and Restaurants' Final Order herein, the Respondent's license be suspended for a period of one (1) year with the suspension held in abeyance for a period of thirty (30) days, during which time the Respondent be allowed an opportunity to correct the deficiencies cited in the Notice to Show Cause filed herein. In the event that Respondent fails to correct the deficiencies as set forth in the referenced notice during the allowable period, Petitioner shall be authorized to immediately suspend Respondent's license for a period of one (1) year without the necessity for further hearing. Section 509.261(3)(a), Florida Statutes. RECOMMENDED this 7th day of April, 1980, in Tallahassee, Florida. JAMES E. BRADWELL Hearing Officer Division of Administrative Hearings 101 Collins Building Tallahassee, Florida 32301 (904) 488-9675
The Issue The issue in the case is whether the allegations of the Administrative Complaint are correct, and, if so, what penalty should be imposed.
Findings Of Fact Petitioner is the agency responsible for licensing and regulating pool contractors operating in the State of Florida. Respondent was previously licensed as a Certified Pool Contractor by Respondent, holding license number CP C21422. On March 15, 2004, Respondent's license was revoked and was void at all times material to this case. On June 3, 2005, Respondent entered into a contract with Luis Vargas and Maria Rivera (Customers) for construction of a pool at their home located at 1524 Southeast 8th Avenue, Cape Coral, Florida. The total cost of the proposed construction was $21,500. The name of Respondent's company as identified on the contract was Gulfshore Pool and Spa, Inc., 207 Center Street, Tarpon Springs, Florida. At all times material to this case, Respondent was the president and owner of Gulfshore Pool and Spa, Inc. During the sales presentation to the Customers, Respondent provided a copy of his license to the Customers that showed an expiration date of August 31, 2004, and told them that it was being renewed. The contract contained the following notation: Company is being retained for services of design, consultation and assistance in construction. Customer is responsible for obtaining all necessary permits required for the pool construction. Respondent testified that he told the Customers he would arrange for all subcontractors and would add a fee of ten percent as his fee for "overseeing" management of the project. The Payment Schedule for the contract required that "progress payments" in an amount totaling the cost of the pool were to be made to Gulfshore Pool and Spa, Inc. The Customers obtained the construction permit. Respondent made all arrangements for site clearing and excavation. Respondent made all arrangements for acquisition and delivery of pool construction materials to the job site. All materials invoices were billed to Gulfshore Pool and Spa, Inc. Respondent made all arrangements for the laborers who appeared at the job site and was responsible for paying laborers. Respondent made arrangements for all inspections and for correcting any problems resulting from the inspections. The Customers paid a total of $20,500, by checks, made payable to Gulfshore Pool and Spa, Inc. The Customers withheld the remaining $1,000 payment for reasons that are immaterial to this proceeding.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Respondent enter a Final Order finding that Michael D. White violated Subsections 489.127(e) and (f), Florida Statutes (2004), and impose a total administrative fine of $10,000. DONE AND ENTERED this 3rd day of April, 2008, in Tallahassee, Leon County, Florida. S WILLIAM F. QUATTLEBAUM 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 3rd day of April, 2008. COPIES FURNISHED: Scott A. Smothers, Esquire Wright, Fulford, Moorhead & Brown, P.A. Post Office Box 2828 Orlando, Florida 32801-2828 Michael D. White, Jr. Michael D. White, Jr., d/b/a Gulf Shore Pool & Spa, Inc. 306 East Paris Street Tampa, Florida 33604 Nancy S. Terrel, Hearing Officer Office of the General Counsel Department Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792 Zed Lucynski, General Counsel Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792
The Issue Whether Respondent committed the violations alleged in the Amended Administrative Complaint? If so, what punitive action should be taken against Respondent?
Findings Of Fact Based upon the evidence adduced at hearing, and the record as a whole, the following Findings of Fact are made: Respondent is a plumbing contractor. He is now, and has been at all times material to the instant case, licensed to engage in the plumbing contracting business in the State of Florida. His license number is CF C020307. At all times material to the instant case, Respondent was the primary qualifying agent for A'Aabbott, a plumbing contracting business located in Fort Lauderdale, Florida. In August of 1992, A'Aabbott entered into a written contract (Contract) with Nereo Agostinelli in which it agreed, for $3,225.00, "[t]o furnish labor and materials to install [on Agostinelli's property in Plantation, Florida a] 600 sq. ft. drain field to all codes at standard practice." Respondent signed the Contract on behalf A'Aabbott. His license number, however, was not written or otherwise displayed on the Contract. The Contract contained the following warranty provision: "3 year conditional warranty-must upkeep interior plumbing." Agostinelli paid the $3,225.00 Contract price by check. A'Aabbott thereafter installed a 600 square foot drain field on Agostinelli's property, as it had agreed to do. Approximately two days after it had been installed (which was within the three-year warranty period), the system failed and raw sewage backed up into Agostinelli's residence on the property. The system failed because pipe that A'Aabbott had installed as part of the project had been cracked during installation by a large rock and had become clogged with soil and therefore could not carry effluent to the drain field. The "interior plumbing" that Agostinelli was required maintain as a prerequisite to his receiving the benefit of the Contract's "3 year conditional warranty" did not cause the failure of the system. Agostinelli made numerous attempts to contact A'Aabbott and request that it fix the problem, as A'Aabbott was required to do under the Contract. When Agostinelli spoke with Respondent, Respondent told him that A'Aabbott had no intention of doing anything further for him. Although A'Aabbott was made aware of the system's failure, it failed to take any action to repair the system. Sewage continued to back up into Agostinelli's residence. On three occasions, Agostinelli had Raider Rooter Sewer and Drain Cleaning, Inc., (Raider Rooter) come to his residence and remove sewage. The total cost to Agostinelli of Raider Rooter's services was $355.00. Agostinelli would not have incurred these costs had the system installed by A'Aabbott not failed. Having been unsuccessful in his efforts to have A'Aabbott honor its warranty under the Contract, Agostinelli contracted with B and N Dozing and Bobcat Service (B and N), on or about March 23, 1993, to make the necessary repairs to the system. He paid B and N $670.00 to make these repairs. There have not been any problems with the system since it was repaired by B and N.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department issue a final order: (1) finding Respondent guilty of the violations of Chapter 489, Florida Statutes, alleged in Counts I and II of the Amended Administrative Complaint, and (2) fining Respondent $1,100.00 for having committed these violations and requiring him to pay $1,025.00 to Agostinelli in restitution and to reimburse the Department for all reasonable costs associated with the Department's investigation and prosecution of the charges set forth in the Amended Administrative Complaint. DONE AND ENTERED this 16th day of July, 1997, in Tallahassee, Leon County, Florida. STUART M. LERNER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 16th day of July, 1997.
Findings Of Fact At all times here involved Respondent held a general contractor's license No. CG C011375 and a pool contractor's license No. CP C010307 issued by Petitioner. Respondent was the owner and qualifying contractor for Player Pools, Inc. In late 1975 Player Pools, Inc. entered into a contract with Robert Pereux, a general contractor, to construct a pool at a residence Pereux was building for Carl Reichenbach. Plans submitted with application for permit were approved by the City of Coral Springs Building Inspection Department and construction of the pool was commenced early in 1976 and completed in May 1976. The pool passed all inspections except the electrical inspection, which has not passed on 3-26-76. Had. the electrical discrepancies been corrected immediately, the pool would have passed final inspection. Respondent completed the major portion of the construction and, while the general contractor was backfilling the pool, a large vertical crack some 4 inches wide appeared in the wall of the pool adjacent to the house. The general practice in Broward County is for the general contractor to back-fill the pool after' the floor and walls of the pool have been completed by the pool contractor. No evidence was presented showing who corrected this large vertical crack or what caused the crack. Respondent's contention that this crack was caused by the vertical weight of the tractor used to back-fill, while adjacent to the wall, is not credible. Had the tractor hit the wall while back-filling, a crack could have resulted. Apparently this large vertical crack from the floor to the coping was repaired by someone and the pool was subsequently filled with water in June 1976. When this occurred, hairline cracks near the cove of the pool appeared and the pool leaked. Cove was defined as the part where the wall joins the floor of the pool. Respondent, pursuant to a verbal agreement with Pereux, attempted to repair the cracks but apparently without success. Pereux died early in 1977 and the provisions of this verbal agreement were not presented. A dispute between Pereux and Respondent arose regarding payment for the work Respondent had done on the pool and Respondent filed a mechanic's lien against the property. A copy of release of lien against Reichenbach's property was admitted as Exhibit 8. The amount satisfied by Exhibit 8 is the same amount Respondent claims was owed him by Pereux in his demand for payment dated May 7, 1976 (Exhibit 7). Following receipt of a complaint, the City of Coral Springs issued Notice of Violation to Respondent, charging violations of sections 2301.1(b) and 5001.2(b) South Florida Building Code (Exhibit 2).
Findings Of Fact At all material times, Respondent has been a registered plumbing contractor, holding license number RF 0049725. He was first licensed in October, 1985, and has practiced plumbing contracting continuously since that time. Respondent has not previously been disciplined. In early 1989, Respondent entered into a subcontract with A-1 Properties to provide various plumbing labor and materials in connection with a residential construction job on which A-1 Properties served as general contractor. The total price of the subcontract was $5100. In general, Respondent performed his work in a timely and competent manner. A minor problem arose involving gas lines that Respondent installed in the kitchen. When a representative of the gas company inspected them during construction, he objected to certain fittings. After giving Respondent a few days to change the fittings, the owner authorized the gas company to make the changes when Respondent failed to do so. The record does not disclose what, if anything, the gas company charged the owner for the work. However, the work was not extensive, and the owner withheld from Respondent only $165 to cover the anticipated invoice from the gas company. In the course of performing the plumbing work, Respondent purchased, at a cost of $2117.77, materials from Shamrock Plumbing. The dates of the invoices reflecting these purchases and the amounts of the invoices are: August 2, 1989- - $1066.57; August 12, 1989--$37.77; August 25, 1989--$814.86; and August 25, 1989--$198.57. Respondent never paid Shamrock Plumbing for these materials. The owner and A-1 Properties timely paid Respondent for all of his work. As a result of change orders, the price for the job increased by $1355.45 to a total of $6455.45. In August, as Respondent's work drew to a close, the owner and A-1 Properties paid Respondent $2337 as follows: August 25, 1989-- $700; August 29, 1989--$500; and August 30, 1989--$1137. These payments total $2337. In making the final payment to Respondent, the representative of A-1 Properties was aware that Shamrock Plumbing had sent to a Notice to Owner for the plumbing materials that Respondent had purchased. Except possibly for the $165, item, Respondent and the general contractor were in agreement, when the final payments were made in August, that Respondent had been paid substantially in full and that he would pay Shamrock Plumbing. When Respondent failed to pay Shamrock Plumbing, it recorded a Claim of Lien on September 28, 1989, against the real property and initiated an action to foreclose the lien. The owner was required to retain the services of an attorney to defend the foreclosure action, pay Shamrock: Plumbing's legal costs, and obtain a release of lien. In so doing, the owner expended a total of $3984.19, as follows: his attorney--$456; Shamrock Plumbing's attorney--$1410.42; Shamrock Plumbing's invoice--$2117.77. The owner paid his attorney by checks dated January 16 and July 31, 1990. The check to pay Shamrock Plumbing and its attorney was dated February 26, 1990. On March 12, 1990, Shamrock Plumbing executed a Release of Lien, which was recorded on April 10, 1990. Respondent has not since reimbursed the owner for his expenditure of $3984.19 because Respondent lacks the money. He applied the August, 1989, payments received for the present job to satisfy obligations arising out of other jobs. Respondent testified that his money problems began when he was not paid for work he performed on other jobs, but they were unrelated to the job involved in this case.
Recommendation Based on the foregoing, it is hereby RECOMMENDED that the Construction Industry Licensing Board enter a final order finding Respondent guilty of violating Section 489.129(1)(h), assessing Respondent for the costs of the investigation and prosecution up to a maximum of $1000; placing Respondent on probation for two years; requiring Respondent to pay the owner $3984.19, plus interest at the legal rate, in restitution; and, if at the end of the two-year probation Respondent has failed to pay the owner in full, imposing an administrative fine of $1500 and suspending Respondent's license for one year. ENTERED this 20 day of May, 1991, in Tallahassee, Florida. ROBERT E. MEALE 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 20 day of May, 1991. APPENDIX Treatment Accorded Proposed Findings of Petitioner 1-8 (first sentence): adopted or adopted in substance. 8 (remainder) : rejected as irrelevant. 9-12 (first sentence): adopted or adopted in substance. 12 (second sentence): adopted that Respondent accepted the final payments. Rejected as unnecessary that Respondent did-not protest the $165 retainage. 13: rejected as unnecessary. 14: first clause rejected as unnecessary. Second clause adopted. 15: rejected as unnecessary. 16-17 and 22: rejected as subordinate. 18-20: adopted or adopted in substance. 21: rejected as unnecessary. 23-24: adopted or adopted in substance. Treatment Accorded Proposed Findings of Respondent first page: adopted or adopted in substance. second page, first incomplete paragraph: rejected as irrelevant, unnecessary, and not finding of fact. second page, first complete paragraph: rejected as unnecessary and irrelevant. second page, second complete paragraph: rejected as unnecessary. COPIES FURNISHED: Jack McCray, General Counsel Department of Professional Regulation 1940 North Monroe Street Tallahassee, FL 32399-0792 Daniel O'Brien, Executive Director Construction Industry Licensing Board Post Office Box 2 Jacksonville, FL 32202 Attorney William S. Cummins Department of Professional Regulation 1940 North Monroe St., Suite 60 Tallahassee, FL 32399 James E. Todd, pro se 1621 Truman Rd. Orlando, FL 32807
The Issue In this disciplinary proceeding, the issues are: Whether Respondent committed the violations alleged in the Administrative Complaint issued by the Petitioner; and Whether disciplinary penalties should be imposed on Respondent if Petitioner proves one or more of the violations charged in its Administrative Complaint.
Findings Of Fact Respondent, Brian Vincent Burns ("Burns"), at all times material to this matter, was a certified general contractor subject to the regulatory jurisdiction of the Petitioner. Burns was first licensed on October 26, 1981. Petitioner issued Burns license number CGO 020464. Burns' license expires on August 31, 2012. Action Restoration Inc. ("Action"), is and was, at all times material in this matter, the company where Burns is qualified. On October 24, 2007, Brian Burns-Action Restoration entered a Contractor Agreement ("Contract") with owner, Donnell Bryant, to construct a bathroom addition at Bryant's residence located at 3314 NW 23rd Court, Lauderdale Lakes, Florida 33311. Burns admitted at the hearing that the Contract failed to include any written disclosure statement explaining consumer's rights under the Florida Homeowner's Construction Recovery Fund. The Contract provided a draw schedule detailing the amount of the payment and at which points during the project payments were to be made to Action. The total contract price was $36,000. Per Bryant's Contract, Bryant paid the first draw of $6000.00 down at contract signing and Action started the job. During the job, Burns followed the critical path method. The method consisted of each step of the job being completed before the next could take place because each built upon the other. Action applied for a permit to build the bathroom addition on the house under Burns' contractor's license and became the contractor of record for the project. Action began the job in November 2007. It included excavating, obtaining the soil test, forming up the plywood to form the concrete, putting the rebar in, and pouring. On November 26, 2007, Bryant paid Action $7,250 as draw two when the footing was completed. The next step of the project was the block. Burns hired three workers to pour the concrete block. On or about December 20, 2007, Action put the truss anchors in the wet concrete. On or about December 21, 2007, Action completed the tie beams and was paid $8000.00 for draw three of the contract. At some point, Burns and Bryant agreed to change the trusses to make them more energy efficient and structurally sound for windstorms. The design change delayed the job being finished by the deadline. During December 2007, there was a period when Burns did not return Bryant's phone calls. Bryant was very anxious for the bathroom addition project to be completed and became angry at Burns when he couldn't reach him. Bryant thought Burns had abandoned his job when he didn't see Burns from around the Christmas holiday until after the new year. After the new year, in January 2008, Bryant met with Burns and a third party, Walsh. At the meeting, Bryant determined that Walsh was the foreman for Action who oversaw the work. Walsh never worked for Burns or Action and has never been paid by either. Burns had only met Walsh in 2007 and worked on one previous project with him. Burns knew Walsh to be a mason. From the meeting, Bryant understood that the initial contract work had been transferred to Walsh to complete the bathroom addition project Action had contracted for originally. As a result, Bryant stopped paying Burns and agreed to pay Walsh the remaining sum of $14,000.00 on the contract. After the meeting, Burns continued to work on the Bryant contract off site. He worked to get the new trusses design approved so that the work could move forward at the residential site. Around January 17, 2008, Burns took the new trusses design to the truss shop professional engineers to do the drawings. After approval, Burns took the design to the architect, which was approved on February 1, 2008. Then, Burns processed the drawing though the City of Lauderdale, which approved them on February 18, 2008. After approval by the City of Lauderdale, Burns called Bryant several times, and Bryant never returned his call or responded. Burns never returned to the Bryant residence to work on the job because he thought a new contractor had been hired to complete the job in Action's place. Action had only completed 50% of the job on the contract at the time. Plumbing, electric, duct work, and stucco were left to be done for the bathroom addition to be completed. During the period when Burns was getting the new trusses design approved, Bryant paid Walsh $4000.00, with check number 5761 as a draw, on February 15, 2008. The Contract was amended and stated, "$Total owe $14,000-$4000.00 2/15/08>New Balance $10,000" Walsh's signature was by the total with "pd 5761 2/15"1 Burns admitted at hearing that Action was still the contractor of record because the permit remained open for the project in his name. Burns said, "I made an error in judgment in not going to see to it that it was closed out." Walsh continued to work on Bryant's bathroom addition and got paid monies until June 2008. As Walsh completed portions of the job, Bryant paid him the following: $800 on April 18, 2008, for the wall and tile; $3,500 on June 3, 2008, for the construction of the bathroom; and $325 on June 9, 2008, for the stucco for the bathroom. Walsh also was paid for other construction work beside the bathroom addition for Bryant. Bryant never heard from Walsh again after paying him $325.00 with the June 9, 2008, check. He contacted him numerous times to no avail. The job was not completed. On December 30, 2008, Bryant signed a contract with Complete Property Repair to complete the bathroom addition Action had started. The contract amount was for $36,800. The contract included redoing some of the previous work completed by Action and some upgrades including a two-person Jacuzzi and travertine rock instead of tile. The Charges: In Count I, Petitioner charges Respondent with abandoning a construction project in which the contractor is engaged or under contract as a contractor in violation of section 489.129(1)(j), Florida Statutes. In Count II, Petitioner charges Respondent with failing to include a written statement explaining the consumer's right's under the Florida Homeowners' Construction Recovery Fund in the contract with Donnell Bryant in violation of Section 489.1425(1)(d)1.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Commission enter a final order that: (a) finds Respondent guilty as charged in Count I of the Administrative Complaint, imposing as a fine of $2,500, and placing Burns' license on probation for a period of one year; (b) finds Respondent guilty as charged in Count II of the Administrative Complaint, imposing a fine of $250.00; and (c) not imposing any restitution since it was not proven in this matter at hearing. DONE AND ENTERED this 29th day of March, 2011, in Tallahassee, Leon County, Florida. S JUNE C. McKINNEY 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 29th day of March, 2011.
The Issue The issue in the case is whether the application filed by Thomas Edwards Dalton (Petitioner) to take the examination for certification as a plumbing plans examiner should be approved.
Findings Of Fact The Petitioner is seeking to become a state-certified plumbing plans examiner. The Respondent is the state agency charged with responsibility for certification of plumbing plans inspectors. On December 12, 2013, the Petitioner submitted to the Respondent his application to take the examination for the certification sought. As required by rule, the Petitioner also submitted an “Affidavit of Work Experience” setting forth a statement of work experience presumably relevant to his application. The affidavit form requires that it be “completed by an architect, engineer, contractor or building code administrator, who has personal knowledge of the application’s experience” for the relevant period. The Petitioner wrote the narrative of his experience contained within the affidavit dated December 8, 2013. The affidavit was signed by a person identified as Anthony Applebeck, a building code administrator in Altamonte Springs, Florida. Generally, an “Application Review Committee” (ARC) comprised of three building code enforcement specialists reviews applications and affidavits submitted to the Respondent. In this case, two members of the ARC independently reviewed the Petitioner’s submission and determined that additional information related to the Petitioner’s work experience was required. In an email dated December 17, 2013, the Respondent advised the Petitioner that additional information was required. The letter stated as follows: The Affidavit of Work Experience that was submitted with your application is missing detailed hands-on plumbing experience. Please complete the enclosed Affidavit of Work Experience and submit it to the department. The person completing the work affidavit should be specific when explaining your duties and actual hands-on experience. The ARC’s determination that the Petitioner’s Affidavit of Work Experience was insufficient was correct. The affidavit lacked a detailed explanation of the Petitioner’s work experience, specifically as to “hands-on” plumbing involvement. The Petitioner failed to submit the supplemental work experience affidavit requested by the Respondent. In an email dated December 18, 2013, the Petitioner requested that the ARC reconsider his original submitted affidavit. On February 18, 2014, the Respondent issued a Notice of Intent to Deny the Petitioner’s application based on the failure to submit sufficient information to establish that the Petitioner has the experience required for the certification sought. By letter dated February 28, 2014, the Petitioner challenged the proposed denial of his application and requested an administrative hearing. The evidence presented at the hearing by the Petitioner was insufficient to establish that the Petitioner meets the requirements to take the examination for certification as a plumbing plans examiner.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Petitioner's application to take the examination for certification as a plumbing plans examiner be denied. DONE AND ENTERED this 16th day of December, 2014, in Tallahassee, Leon County, Florida. S WILLIAM F. QUATTLEBAUM 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 16th day of December, 2014. COPIES FURNISHED: Thomas Edward Dalton 906 Delta Court Altamonte Springs, Florida 32714 (eServed) Robert Antonie Milne, Esquire Office of The Attorney General Plaza Level 01, The Capitol Tallahassee, Florida 32399-1050 (eServed) J. Layne Smith, General Counsel Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399 (eServed) Robin Barineau, Executive Director Division of Professions Building Code Administrators and Inspectors Board Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399 (eServed)
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following facts were found: At all times material to these proceedings Respondent was licensed by the State of Florida as a certified pool contractor, licensed No. CP C025535 and registered pool contractor, License No. RP 0041301. On June 7, 1983, Respondent entered into a Contract (Contract) with Edward and Maureen Kerstein (Kersteins) of 283 Islander Lane, Hudson, Florida, under which a pool was to be constructed on the Kersteins' property for a contract price of $7,777.00. The Contract was later amended by a letter, signed by Respondent and dated July 15, 1983, providing a penalty of $50.00 per day to be deducted from the balance due on the contract price if Respondent failed to complete the pool by July 23, 1983. Respondent obtained building permit No. 34342 on June 15, 1983, in the name of Crystal Clear Pool for the construction of the Kersteins' pool from the Pasco County Building Division. The pool steel inspection was called for and approved on July 8, 1983 and the pool bonding inspection was called for and approved on July 18, 1983. No other inspections were called for by the Respondent and the Respondent did not request an extension of time on the building permit. Therefore, on January 18, 1984, as required by the Standard Building Code of Pasco County, the permit lapsed and was invalid. However for reasons that are not clear in the record Vern Rossky, Building Inspector, Pasco County Building Division, made a final inspection of the Kersteins' pool (Permit No. 34342) on June 28, 1984 and approved the pool. Ordinarily the contractor would call for the final inspection or if the permit had lapsed or was invalid then the Pasco County Building Division would contact the contractor in order to finalize the permit. However, the record is clear that Respondent's intent was to leave the permit open due to the problems with completing the pool and satisfying the Kersteins. Although problems with the pool still existed, the pool was substantially completed in August, 1983 and the Kersteins used the pool in late summer 1983 (August) and the summer of 1984. The pool was operational in August of 1983. The respondent has received $7,055.05 for his work on the construction of the pool under the Contract with the Kersteins. While the Contract did not specify which side yard Respondent was to have access through for construction of the pool, the testimony of both the Respondent and the Kersteins was that it was the west side yard. However, the record reflects that the Kersteins gave either an expressed or implied approval for the use of the east side yard. All of the shrubbery, with the exception of the shrubbery that was part of the Contract, has been properly replaced and the clothesline has been replaced. The evidence was insufficient to show that the cracks which occurred in the house some 3-6 months after the pool construction was caused by the equipment being brought in on the east side of the house. Although Edward Kerstein's testimony was that an expert had not looked at the damage caused by the alleged water seepage around the electrical conduit pipe installed by the Respondent, his testimony that he had identified the Respondent's failure to caulk around the conduit pipe as the reason for the water seepage which resulted in damage to the carpet and speakers went unrebutted and was credible. However, Respondent was not made aware of this problem until the summer of 1984, almost a year later. The record is clear on the following: (a) that the tile placed around the top edge of the pool by Respondent was defective; (b) that there were several acceptable methods of replacing the defective tile; (c) that there were differences of opinion as to which method should be used in this situation; (d) that the reglazing over the existing tile was not an acceptable method; (e) that the pool would have to be drained to replace the defective tile; (f) that the Kersteins did not want to tile over the existing defective tile; (g) that the Respondent and Drew Tile Supply Company (Drew), the supplier of the defective tile, agreed on the method of cutting the tile away from the bull nose cap and replacing just the tile and based on this agreement; Drew delivered a check to Respondent in the sum of $823.75 ($700 for labor and $123.75 for tile) made payable to Crystal Clear Pools and Phil Klein, the subcontractor who had installed the defective tile; (h) that the Respondent, as President of Crystal Clear Pools assigned Crystal Clear Pools' interest in the check to Phil Klein provided the work on the defective tile in the Kersteins' pool commenced no later than February 1, 1984; (i) that Phil Klein endorsed and cashed the check with the knowledge of the assignment; and Phil Klein's testimony that even though the assignment was on the check at the time he endorsed and cashed the check the Respondent told him that the money was a partial payment of another job is just not credible; (j) the more credible evidence is that Respondent assigned the check to Phil Klein for labor and tile to replace the defective tile on the Kersteins' pool and there was no intent by Respondent to divert these funds to another job; (k) that the Kersteins' had not agreed to the method of replacing the defective tile which was part of the agreement between the Respondent and Drew; (1) that Drew had agreed that if the method selected was not satisfactory, then Drew would make it right; (m) that the problem with the drain in the pool, the filtering system, the telescoping rod, the damage to the air conditioning controls on the house, the failure to put tile chips on pool steps and the damage to the underground wire, were legitimate problems and it was Respondent's intent to correct all by the time the pool was drained to replace the defective tile; (n) that the Kersteins understood this when they agreed to allow Respondent to wait until the winter of 1984 to correct these problems because they were already using the pool in the latter part of the summer of 1983 and did not want to drain it at that time; (o) that none of these problems had been corrected due to the failure of both the Respondent and Drew to reach an agreement with the Kersteins on how both the defective tile problem and the other problems were to be resolved and; (p) that there had been continuous negotiations between either the Respondent and the Kersteins or Drew and the Kersteins concerning the settlement of this problem.
Recommendation Based upon the findings of fact and conclusions of law cited herein it is RECOMMENDED that the Board enter a final order finding the respondent not guilty of the violations charged in Count I, Count II, and Count III of the Administrative Complaint and that Counts I, Count II and Count III of the Administrative Complaint be DISMISSED. Respectfully submitted and entered this 10th day of July, 1985 in Tallahassee, Leon County, Florida. WILLIAM R. CAVE 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 10th day of July, 1985. COPIES FURNISHED: Douglas A. Shropshire, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Gerald A. Figurski Post Office Box 786 New Port Richey, Florida 33552 Mr. James Linnan Executive Director Department of Professional Regulation Construction Industry Licensing Board Post Office Box 2 Jacksonville, Florida 32202 Mr. Fred Roche Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Salvatore A. Carpino General Counsel Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301
