Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant facts are made: At all times material to this proceeding, Respondent Wilmon Ray Stevenson was licensed as a registered building contractor in the state of Florida, holding license numbers RB 0035005 and RB A035005. License number RB 0035005 was issued on an active status qualifying an Individual in March 1987 and is still in effect. License number RB 0035005 replaced license number RR 0035005 issued in December, 1980. License number RB A035005 was issued on an active status qualifying Yankee Construction, Inc. d/b/a Olympic Homes of Citrus County (Olympic) in June 1987 and replacing license number RR A035005 issued in August 1981. In October, 1988 Respondent submitted a change of status application which was not acted upon by Petitioner until February, 1989 when it was deleted. However, Petitioner's file (Petitioner's Exhibit 1, page 2) indicates the license was in effect only until October, 1988. The Marion County Building Department was advised of this status change in September, 1988. Findings As To Case No. 90-1637 On April 16, 1988, Frank and Margaret Orkwis entered into a contract with Olympic to construct a home for $37,900 which was later modified, increasing the contract price to $39,363.00. On July 26, 1988 a permit for the Orkwis job was obtained from the Marion County Building Department in accordance with the Respondent's letter dated January 25, 1985 authorizing certain individuals to "pull" permits on his license. There was a total of $27,583.20 paid to Olympic on the Orkwis contract which included $27,483.20 paid by draw schedules and $100.00 as a down payment. Olympic stopped work on the Orkwis home sometime around November 27, 1988 and failed to complete the work under the contract. Olympic gave no notice to Orkwis that it intended to terminate the work on the Orkwis job. In fact, Olympic kept putting Mrs. Orkwis off about completing the job until sometime in late January, 1989 or early February, 1989 when she decided to get a permit and complete construction. Olympic terminated the Orkwis job without just cause. The following liens were recorded against the Orkwis property for the failure of Olympic to timely pay for materials and labor furnished to Olympic for the Orkwis's job in accordance with Orkwis contract: (a) Florida A/C Sales and Services, Inc., filed December 13, 1988 and; (b) Florida Forest Products, Inc. filed December 15, 1988. The labor and materials had been furnished between October 24, 1988 and November 22, 1988. Olympic was contacted by Mrs. Orkwis concerning the liens, with no response. However there was insufficient evidence to establish that the liens had not been removed from the property, by payment or bond, within 30 days after the date of such liens. Sometime in early 1989, Mrs. Orkwis obtained a permit and she and her husband completed the home. Although Mr. Orkwis had obtained an estimate of $27,050.00 from a contractor to complete the home, she and her husband invested 466.5 hours of their time and $10,340.00 for materials to complete the home. In addition to the material, a reasonable amount for labor to complete the home would be $10,000.00. Findings As To Case No. 90-1889 John J. and Josephine Grillo and Madeline Chapman entered into a contract with Olympic for construction of a home on June 11, 1987. A permit was obtained for the Grillo/Chapman home under Respondent's license. The Grillo/Chapman home was completed and a certificate of occupancy issued January 13, 1989. Olympic was paid in full under the contract. Before the expiration of the one-year warranty under the contract, Olympic was advised of certain problems with the construction which Olympic attempted to correct. It is unclear whether the problems were satisfactorily corrected by Olympic but it appears that the only complaint not resolved was a water stain on the carpet that was the result of water seeping in under a door. Respondent was not aware of these problems until after the expiration of the one-year warranty and upon learning of the problems, commented that he was not obligated since the warranty had expired. There was insufficient evidence to establish that the problems were not corrected in accordance with contract. Findings As To Case No. 90-1890 Veronica McPherson entered into a contract with Olympic on March 1, 1989 to construct a home for the contract price of $36,450.00 which was later modified increasing the contract price to $37,775.00. All permits were obtained under the Respondent's license pursuant to a letter dated January 15, 1985 authorizing certain individuals to "pull" permits under Respondent's license. McPherson paid $26,442.50 to Olympic pursuant to a draw schedule in the contract as the home was being constructed. Additionally, McPherson paid a $100.00 down payment. All work performed by Olympic pursuant to the McPherson contract was prior to November 22, 1988. The exact date of termination of work is uncertain. Olympic notified McPherson that it had terminated work and would not complete construction of the home. The exact date of this notification is uncertain. There is no evidence that notice was not given within 90 after termination of work. Olympic terminated work without just cause. McPherson paid a roofing contractor $998.00 to complete the roof on her unfinished home in order to protect the interior. McPherson was financially unable to complete construction of the home. A reasonable estimate to complete construction of the McPherson home at the time work ceased would be $20,000.00. On December 15, 1988 Florida Forest Products, Inc. recorded a lien on December 15, 1988 against the McPherson property for building materials furnished to the McPherson job on order of Olympic on October 24, 1988 for construction of the home pursuant to the McPherson contract in the amount of $1,450.08. There was insufficient evidence to establish that this lien had not been removed from the McPherson property, by payment or bond, within 30 days after the date of such lien. There were three other claims of liens for labor and materials furnished to the McPherson job on order of Olympic between October 19, 1988 and December 2, 1988 for construction for the home pursuant to the McPherson contract as follows: (a) Florida A/C Sales and Services, Inc. dated December 8, 1988 for $1,059.00; (b) Masons Concrete of Crystal River dated December 14, 1988 for $354.97 and (c) Panning Lumber Company, a Division of Wheeler Consolidated, Inc. for $2,284.13. There is no evidence that any of the above liens were ever recorded against the McPherson property. Likewise, there is no evidence to establish that these liens had not been removed from the McPherson property, by payment or bond, within 30 days after the date of such lien, if in fact they were recorded. General Findings Respondent was advised by Larry Vitt in February, 1988 that Olympic was having financial problems. Respondent never supervised the financial aspects of Olympic. Respondent did not participate in the contract process or supervision of the construction of homes contracted to be built by Olympic. More specifically, he did not participate in the contract process or the supervision of the construction of the Orkwis, McPherson or Grillo/Chapman homes. Respondent's main purpose in being involved with Olympic was to use his license to qualify Olympic and to contract all of Olympic's concrete block work. In March, 1989 Respondent advised the Marion County Building Department that no one was authorized to "pull" permits under his license. However, at no time did Respondent withdraw the permits for the Orkwis and McPherson jobs that had been issued under his license. The record is clear that Respondent did not understand his relationship with Olympic nor did he understand the responsibility he incurred when he used his license to qualify Olympic. However, his inexperience or ignorance in this regard does not relieve him of his responsibility to those whose homes were built or not completely built pursuant to a permit issued under his license.
Recommendation Having considered the foregoing Findings of Facts and Conclusions of Law, the evidence of record, the demeanor of the witnesses and the disciplinary guidelines set out in Chapter 21E-17, Florida Administrative Code, it is RECOMMENDED: That the Board enter a final order finding Respondent guilty of violating Section 489.129(1)(k) and (m), Florida Statutes, and for such violations it is Recommended that the Board assess the Respondent with an administrative fine of $2,500.00. It is further Recommended that Counts I and II for the Administrative Complaint in Case Nos. 90-1637, 90-1889, and 90-1890 be Dismissed. DONE and ORDERED this 24th day of October, 1990, in Tallahassee, Florida. WILLIAM R. CAVE 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 24th day of October, 1990. APPENDIX TO RECOMMENDED ORDER IN CASE NO. 90-1637 The following constitute my specific rulings pursuant to Section 120.59(20, Florida Statutes, on all of the proposed findings of fact submitted by the parties in this case. Rulings of Proposed Findings of Fact Submitted by the Petitioner 1. Covered in Conclusions of Law. 2.-8. Adopted in Findings of Fact 1, 2, and 3. 4.-6. Adopted in Findings of Fact 15, 16, and 17, respectively. 7. Adopted in Findings of Fact 19 and 20, but modified. 8.-12. Adopted in Findings of Fact 18, 4, 5, 6, and 8, respectively. 13.-14. Adopted in Findings of Fact 9 and 10, respectively, but modified. Adopted in Findings of Fact 21 through 25. Restatement of testimony; not stated as a Finding of Fact but see Findings of Fact 10 and 14. Adopted in Findings of Fact 13 through 15. Adopted in Findings of Fact 16, but modified. Rulings of Proposed Findings of Fact Submitted by Respondent 1. Covered in Preliminary Statement. 2.-8. Adopted in Findings of Fact 1, 2, 3, 3, 15, 15, and 16, respectively. 9. Adopted in Findings of Fact 19 and 20. 10.-11. Adopted in Findings of Fact 18 but modified. Adopted in Finding of Fact 4. Adopted in Findings of Fact 4 and 6. Adopted in Finding of Fact 5. Adopted in Findings of Fact 8 and 9. 16.-20. Adopted in Findings of Fact 7, 7, 11, 13 and 14, respectively, but modified. Not material. Adopted in Finding of Fact 3, but modified. Not material. Copies furnished to: Fred Seely, Executive Director Construction Industry Licensing Board Post Office Box 2 Jacksonville, FL 32202 Kenneth E. Easley, General Counsel Department of Professional Regulation 1940 North Monroe Street Tallahassee, FL 32399-0792 G. W. Harrell, Esquire Department of Professional Regulation 1940 North Monroe Street Suite 60 Tallahassee, FL 32399-0792 Fred A. Ohlinger, Esquire P.O. Box 1007 Beverly Hills, FL 32665
The Issue Whether Petitioners are entitled to attorneys' fees and costs pursuant to Section 57.111, Florida Statutes?
Findings Of Fact On September 29, 2004, Respondent notified Petitioners that a complaint against them was received regarding an engineering project and that an investigation was to be undertaken. Between September 29, 2004, and March 16, 2006, Petitioners submitted numerous informal responses to Respondent either via e-mail or regular United States mail. On March 16, 2006, the probable cause panel of the Board of Professional Engineers found probable cause to charge Petitioners with violating Section 471.033(1)(g), Florida Statutes, by being negligent in the practice of engineering. At the time it found probable cause, the probable cause panel reviewed the materials that are attached to the Affidavit of Teresa Bake, Custodian of Records of FEMC (Respondent's Composite Exhibit numbered 1). These materials include the Investigative Report compiled by the investigator for FEMC; a copy of the plans for the relocation project, and letters dated October 22, 2005, and February 5, 2006, from Roland Holt, P.E., FEMC's engineering consultant. Mr. Holt's reports contained the opinion that Petitioners' plans for the relocation project were deficient. An Administrative Complaint reflecting the March 16, 2006, findings of the probable cause panel was issued April 20, 2006, and was subsequently served on Petitioners. The allegations in the Administrative Complaint are consistent with the purported deficiencies noted in Mr. Holt's letters. Petitioners requested a Section 120.57(1) hearing, which was held July 31, 2006. On August 29, 2006, a Recommended Order was filed recommending that all charges against Petitioners be dismissed. On December 12, 2006, the Board of Professional Engineers entered a Final Order that adopted the findings of fact and conclusions of law recommended by the administrative law judge and dismissed the charges against Petitioners. The amount of attorneys' fees claimed is $26,298.00, which is reasonable and not unjust. The parties have stipulated to recoverable costs of $793.00, which represents that portion of the costs that conform to the Statewide Guidelines for Taxation of Costs in Civil Actions, effective January 1, 2006.
The Issue Whether the Respondent, Allan Williams, P.E., and Allan Williams, P.E., d/b/a ABW Engineering (Respondent or Williams), committed the violations alleged in the Administrative Complaint dated November 15, 2013, and, if so, what penalty should be imposed.
Findings Of Fact Allan B. Williams is a licensed engineer fully authorized to do business in Florida. Respondent's recognized and legally sufficient name to do business is "Allan B. Williams, P.E." On or about August 20, 2002, Respondent filed a fictitious name application with the Florida Department of State, Division of Corporations (DOS), that represented Allan B. Williams sought to do business under the fictitious name "ABW Engineering." Subsequently, the fictitious name was renewed on March 28, 2007, and was valid through December 31, 2012. On or about May 29, 2013, Respondent again filed the requisite papers with DOS to establish "ABW Engineering" as a fictitious name, with an active status expiration date of December 31, 2018. It is undisputed that Allan B. Williams, the subject of this case, is the person who established ABW Engineering with DOS. In 2007, Petitioner cited the Respondent with practicing engineering through a business entity that was not properly authorized to do business in Florida. In response to that claim, Respondent acknowledged that he did business as ABW Engineering and stated, in part: I didn't know I needed one. In all the years I practiced in Washington, D.C., Maryland and Virginia I never needed one. The only time I can remember this being a requirement, is, if you are a corporation home based outside these states and jurisdiction and you wish to do business in these states and jurisdiction, then you have to pay a "foreign corporation" tax or fee. It was my impression that Certificate of Authorization was the same as a foreign corporation fee. In further response to the 2007 dispute, Respondent filed the appropriate paperwork and paid the required fees to obtain a Certificate of Authorization for ABW Engineering (No. 27462) with Allan B. Williams, P.E., identified as the registered principal officer for the company. The licensure date for ABW Engineering was May 3, 2007. The letter announcing the approval of the Certificate of Authorization for ABW Engineering contained the following provisions: Your Certificate of Authorization will expire February 28, 2009. A notice of renewal will be mailed to the address of the business thirty (30) to forty-five (45) days prior to the expiration date. * * * In accepting this registration, you assume the responsibility of complying with the requirements of Chapter 471, Florida Statutes and Chapter 61G15, Florida Administrative Code. Allan B. Williams, P.E., did not timely renew the Certificate of Authorization for ABW Engineering when it expired on February 28, 2009. From March 1, 2009, through May 8, 2013, Allan B. Williams, P.E., did business under the letterhead and logo of ABW Engineering. Respondent used the letterhead and logo on billing for engineering services rendered by Allan B. Williams, P.E. On or about May 8, 2013, Petitioner issued a Notice to Cease and Desist to ABW Engineering. That notice provided, in pertinent part: Our records show that you do not currently have a certification as required by section 471.023, FS. If the above facts are true, they establish probable cause for FBPE to believe you are violating Florida law by offering ENGINEERING SERVICES without the required license or certification. On May 23, 2013, Respondent wrote a letter in response to the Notice to Cease and Desist that provided: Certificate of Authority has never been uppermost in my mind. Why? For over thirty five years I have always received constant reminders to complete my courses in continuing education and to renew my PE license. Not once have I received reminders about renewing my Certificate of Authority. And so Certificate of Authority becomes obscure in comparison to the other licensing requirements. Think about it. For your PE you have to satisfy educational requirements at an accredited school of Engineering; you have to work for four (4) years doing progressively challenging engineering work which prepares you to take the PE exams; you have to pass the exams and then you get your PE License. Then every two (2) years you have to pass continuing education courses. For Certificate of Authority you fill out a form and you pay $255. I don't think any Engineer would purposely avoid paying a $255 fee and risk losing thousands of dollars in earnings. It slipped my mind—I forgot it—I apologies [sic]. On June 10, 2013, Respondent received a Certificate of Authorization for ABW Engineering. On September 18, 2013, Petitioner notified Respondent that the Board was issuing a citation based upon the allegations previously disclosed to Respondent: that ABW Engineering had offered engineering services during a period of time when it was not properly certified or authorized to do business. Under the terms of the citation, Respondent was given the option of paying the penalty calculated pursuant to Florida Administrative Code Rule 61G15-19.0071 ($5,000.00) or having the case prosecuted pursuant to section 455.225, Florida Statutes (2013).1/ Respondent chose the latter. At hearing, Respondent maintained that he did not do business as ABW Engineering, but as Allan B. Williams, P.E. That claim was not deemed persuasive in light of the totality of evidence that established Respondent routinely used the ABW Engineering letterhead and logo, was listed in the telephone and other directories as ABW Engineering, and billed for engineering services with the logo and name. Moreover, Respondent admitted that using "ABW Engineering" was a strategy to secure work.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Board of Professional Engineers enter a final order finding Respondent in violation of offering engineering services through a fictitious name that did not have a valid Certificate of Authorization, imposing an administrative fine in the amount of $5,000.00, awarding the costs of prosecution against Respondent, and reprimanding Allan B. Williams, P.E., as the registered general officer of ABW Engineering. DONE AND ENTERED this 2nd day of September, 2014, in Tallahassee, Leon County, Florida. S J. D. PARRISH 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 2nd day of September, 2014.
Findings Of Fact The Respondent, Marlene E. Lutman, is a vice president of American Custom Builders, Inc. and was a vice president in 1977. Respondent holds licenses Number CR C012570 end Number CR CA12570 issued by the Petitioner Board. On September 11, 1978, Respondent submitted a certification change of status application to the Florida Construction Industry Licensing Board. This application, completed by Respondent under oath on September 7, 1978, was filed for the purpose of changing the contractor's licenses held by Respondent to add the name of American Custom Builders, Inc. to said licenses. On July 6, 1979, an Administrative Complaint was filed against Respondent, doing business as American Custom Builders, Inc., seeking to permanently revoke her licenses and her right to practice under said licenses and to impose an administrative fine in the amount of $500.00. Respondent Lutman requested an administrative hearing, which was scheduled for September 6, 1979, continued on Motion of Respondent, and held November 29, 1979. On the application completed by Respondent, Question 12(b) asked: Are there now any unpaid past-due bills or claims for labor, materials, or services, as a result of the construction operations of any person named in (i) below or any organization in which such person was a member of the personnel? Question 12(c) of the application asked: Are there now any liens, suits, or judgments of record or pending as a result of the construction operations of any person named in "(i) below" or any organization in which any such person was a member of the personnel? Respondent, as a vice president of American Custom Builders, Inc., was designated in "(i) below." She answered "no" on the application to both of the above stated questions. Respondent completed the application while she was in Florida. Prior to completing the application, Respondent spoke by telephone with John D. Cannell, an attorney in Ohio, in reference to Questions 12(b) and 12(c), supra. Cannell told Respondent that there were no unpaid bills outstanding. He said that there had been liens filed involving American Custom Builders, Inc., but that these liens had been cancelled. Cannell based his statements to Respondent upon oral assurances from personnel at the bank involved in financing the construction project associated with the liens that all liens had been paid. It was later learned that on September 7, 1978, the date Cannell told Respondent the liens had been cancelled, the liens had not been cancelled and were of record in the Recorder's Office of Geauga County, Ohio. Liens had been filed on January 6, 1978, January 23, 1978, and January 3l, 1978, by various subcontractors involved in the construction of a house owned by Winford and Sally Ferrentina. The liens were based on claims against American Custom Builders, Inc. as general contractor and the Ferrentinas as owners for unpaid labor and materials and were not satisfied of record until September 20, 1978, on which date the January 6, 1978 lien was satisfied, and March 22, 1979, on which date the other two (2) liens were satisfied. The Hearing Officer finds that Respondent Lutman did not intend to make a material false statement but negligently relied on oral representations that there were no past-due bills and no liens of record pending as a result of her construction operations. Both parties submitted proposed findings of fact, memoranda of law and proposed recommended orders, and the Petitioner Board submitted a reply memorandum. These instruments were considered in the writing of this order. To the extent the proposed findings of fact have not been adopted in, or are inconsistent with, factual findings in this order they have been specifically rejected as being irrelevant or not having been supported by the evidence.
Recommendation Based upon the foregoing Findings and Conclusions of Law, the Hearing Officer recommends that the Respondent, Marlene Lutman, be reprimanded. DONE and ORDERED this 1st day of February, 1980, in Tallahassee, Leon County, Florida. COPIES FURNISHED: Jeffery B. Morris, Esquire 2400 Independent Square One Independent Drive Jacksonville, Florida 32202 Jeffrey R. Garvin, Esquire 2532 East First Street Post Office Box 2040 Fort Myers, Florida 33902 DELPHENE C. STRICKLAND Hearing Officer Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301 (904) 488-9675 ================================================================= AGENCY FINAL ORDER ================================================================= BEFORE THE FLORIDA CONSTRUCTION INDUSTRY LICENSING BOARD FLORIDA CONSTRUCTION INDUSTRY LICENSING BOARD, Petitioner, vs. DOAH CASE NO. 79-1546 Marlene Lutman, CR C012570, CR CA 12570 Respondent, /
The Issue Whether Respondent, Robert C. Kany, P.E., committed the acts or omissions alleged in the Administrative Complaint; whether those acts or omissions constitute the violations alleged; and, if so, what penalty should be imposed (as submitted in the parties' Joint Pre-hearing Submission).
Findings Of Fact Based on the oral and documentary evidence presented at the final hearing, the following findings of fact are made: At all times material to the allegations in the Administrative Complaint, Respondent was a licensed Professional Engineer with license PE 16739. On or about February 12, 2004, Respondent signed and sealed two pages of plans for a project described as "Renovations to Existing Facilities 8245 Curryford Road, Orlando." Respondent did not have a contract with or any communication with the Curryford Road owner. Between April 26, 2002, and on or about July 8, 2003, Respondent signed and sealed five pages of plans for a project identified a "2008 Corena Drive." Respondent did not have a contract with or any communication with the Corena Drive owner. Petitioner is the State of Florida agent that provides investigative and prosecutorial services for the Florida Board of Professional Engineers. The Florida Board of Professional Engineers regulates the practice of engineering pursuant to Chapters 455 and 471, Florida Statutes (2001). Joint Exhibit 1, "Renovations to Existing Facilities 8245 Curryford Road, Orlando," and Joint Exhibit 2, "2008 Corena Drive," contain deficiencies regarding mechanical, electrical, and plumbing design. Some deficiencies can be cured by the plans examiner's refusing to approve the plans and requesting clarifying information regarding the noted deficiency. In Florida, an electrical contractor can assume responsibility for electrical design requirements for residential properties that require less than 600 amps systems. However, when an engineer seals the plans, the engineer assumes that responsibility. The initial step in plans approval in Orange County, Florida, is submission of the plans to the Orange County Zoning Department. Both sets of plans in question were initially reviewed by the zoning department. The "Curryford" plans were submitted to the Orange County Building Department for review and were not approved. While the "Corena" plans were retained by Orange County, there is no evidence that these plans were submitted for building department review. It is not atypical for plans to be rejected by the Orange County Building Department and returned to the engineer for additions or corrections. While one small deficiency exists to the structural design of Joint Exhibit 1, "Renovations to Existing Facilities 8245 Curryford Road, Orlando," there was no threat to public safety. There are myriad structural engineering deficiencies in Joint Exhibit 2, "2008 Corena Drive," which are the sealed plans for the residence at that address. The deficiencies may be a result of the fact that the plans were incomplete due to the owners' failure to decide on a cathedral or closed ceiling. If the plans were preliminary, Respondent should not have sealed them. The plans depicted in Joint Exhibit 2, "2008 Corena Drive," do not meet minimum engineering standards; the engineer of record, Respondent, was negligent in sealing these plans. It is acceptable practice in the engineering community for an engineer to work with a designer who drafts design documents and is independently employed. It is also acceptable practice in the engineering community for an engineer working with a designing draftsman not to visit a particular project site if sufficient detail of the project is related to the engineer by the draftsman. It is acceptable practice in the engineering community for a draftsman to design complete drawings and then present the drawings to an engineer for engineering review and approval as long as the draftsman is known to the engineer and the engineer is aware of the draftsman's skill and expertise. Respondent has practiced his profession for 65 years, the last 25 in Florida. He has known Robert Thomas, the individual who drafted both sets of plans in question, for seven or eight years. Respondent considers Mr. Thomas to be a "darn good" draftsman with considerable knowledge of the building industry. When Mr. Thomas brings plans to Respondent for review, they discuss the project and the plans; Respondent then makes appropriate changes to assure that the plans comply with or exceed code. This process meets the "responsible charge" standard.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Board of Professional Engineers reprimand Respondent, Robert C. Kany, P.E., for his negligence in sealing incomplete plans. DONE AND ENTERED this 14th day of March, 2006, in Tallahassee, Leon County, Florida. S JEFF B. CLARK 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 14th day of March, 2006. COPIES FURNISHED: Daniel M. Greene, Esquire Kirwin & Morris 338 West Morse Boulevard, Suite 150 Winter Park, Florida 32789 Bruce Campbell, Esquire Florida Engineers Management Corporation 2507 Callaway Road, Suite 200 Tallahassee, Florida 32303-5267 Josefina Tamayo, General Counsel Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-2202 Paul J. Martin, Executive Director Board of Professional Engineers 2507 Callaway Road, Suite 200 Tallahassee, Florida 32303-5267 Doug Sunshine, Esquire Vice President for Legal Affairs Florida Engineers Management Corporation 2507 Callaway Road Tallahassee, Florida 32303-5267
Findings Of Fact At the final hearing the following factual allegations contained in the Administrative Complaint were either stipulated to by the parties or not disputed by the Petitioner: The Respondent John W. Rohrback is a certified general contractor having been issued license numbers CC C002372, CG CA 02372, PM 0015083 and RF 0036563. The last known address of the Respondent Rohrback is 10282 N.W. 31st Street, Coral Springs, Florida 33065. The Respondent Rohrback, while doing business as Statewide Insulation and Solar Systems, Inc., failed to initially obtain building permits which are required by ordinance on the following job sites: Mrs. Blanche Nelson, 454 N.E. 4th Street, Boca Raton. Mrs. Dorothy Menzel, 784 N.E. 71st, Lot 27, Block C, Boca Harbor. Work started May 17, 1980. Permit taken out on May 19, 1980. Mrs. Meinhard, 1230 S.W. 7th Street, Lot 6, Block 29, Boca Raton Square. Work started on May 7, 1980. Permit taken out on May 19, 1980. Ms. Mary Greenhauer, 986 S.W. 14th Street, Lot 20, Block 63, Boca Raton Square. Work started on May 3, 1980. Permit issued on May 19, 1980. Although the Respondent Rohrback eventually received the permits for these projects, he also initially failed to obtain a license to do contracting in the City of Boca Raton as required by ordinance. On or about August 11, 1980, the City of Boca Raton Contractor's Board suspended the Respondent Rohrback indefinitely from doing business in the city for: using alternate materials and methods without clearance; not obtaining building permit; not filing a proper permit; and not filing proper proof of a certificate of competency. At the time of the hearing before the local contractor's board, the Respondent Rohrback had settled and obtained releases with two of the listed individuals. He was told to settle the remaining two cases, obtain releases and appear before the local Board at a later date. The Respondent appeared on the designated date and discovered that the Board had met the previous day and suspended his license. The Respondent Rohrback contacted the Boca Raton city attorney and a representative of the Department to present the signed releases and cancelled checks he eventually obtained from the four listed individuals in order to obtain a reversal of the local Board's action suspending his license. At the time of hearing, the Respondent had been unsuccessful in obtaining a reversal of the Board's decision. Additionally, the Respondent Rohrback acted as qualifying agent for D.R.K. Company from July 1, 1979 through February 1981. During this period of time, D.R.K. utilized deceptive practices in order to obtain contracts from various individuals. By certified letter dated June 12, 1980, the Respondent informed D.R.K. and pertinent licensing boards that he was withdrawing as qualifying agent for D.R.K. and Statewide Insulation and Solar Systems, Inc., and revoking any presigned permits or letters of authorization that may have been signed by John W. Rohrback. However, the Respondent did not actually attempt to revoke his authorization until October 28, 1980, when a letter was sent to Milton Rubin, administrative assistant to the Florida Construction Industry Licensing Board, outlining the problems he had encountered with D.R.K. and Statewide. On or about February 19, 1981, the Lee County Board of County Commissioners suspended the Respondent Rohrback's privilege to pull building permits.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That a Final Order be entered dismissing the Administrative Complaint filed against the Respondent John W. Rohrback in Case No. 82-2616. DONE and ORDERED this 28th day of March, 1983, in Tallahassee, Florida. SHARYN L. SMITH, 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 March, 1983. COPIES FURNISHED: Michael J. Cohen, Esquire Suite 101 Kristin Building 2715 East Oakland Park Blvd. Fort Lauderdale, Florida 33306 John W. Rohrback 10282 Northwest 31st Street Coral Springs, Florida 33065 James Linnan, Executive Director Construction Industry Licensing Board Post Office Box 2 Jacksonville, Florida 32202 Fred Roche, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301
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
