Findings Of Fact The Petitioner is an agency of the State of Florida charged with regulating the licensing of contractors in Florida and regulating the practice of contracting of all types. Specifically, the Petitioner is responsible for enforcing law which prohibits unlicensed persons from engaging in the business of contracting, or advertising themselves or business organizations as available to engage in contracting, without proper licensure. The Respondent is a citizen of the State of Florida, who has embarked on a business of representing owners who desire to construct residences, acting as the agent of those owners in arranging for materials, labor, subcontractors, and the financing of construction. Upon the decision by the owner to construct a residence, the Respondent engages in drafting plans, to some extent, arranging for subcontractors, overseeing the details of the work and any changes or alterations in the work and plans as the project proceeds. The owner in this arrangement does not obtain workers' compensation coverage for the Respondent, as would be the case if the Respondent was an employee of the owner, nor does the owner withhold F.I.C.A. taxes from monies due the Respondent for his services. The Respondent is not licensed as a contractor in the State of Florida. On May 11, 1995, the Respondent signed a contract (hereinafter the "Kassiris Contract") with owner Gus Kassiris, to oversee the erection and construction of a new residence for Mr. Kassiris. The Respondent was to perform the following duties, pursuant to the Kassiris Contract: to make recommendations as to which subcontractor to hire; to inspect progress and review payments; consultations and solutions on construc- tion project; to engage in manpower tracking and coor- dination of resources; monitoring of contract compliance; to provide punch list services; and to engage in the preparation and de- fense of change orders, as well as cost accounting. The "punch list services" mean that the Respondent was to engage in insuring that no work was left undone or done incorrectly at the end of the project. The Respondent admitted that he conducted all inspections on the project and reviewed all requisitions for payment from the subcontractors. The amount he charged for his services was roughly equivalent to the amount a licensed contractor would charge for similar services. The Kassiris Contract did not meet the conditions for a homeowner's exemption, found in Section 489.103(7), Florida Statutes. Specifically, the Kassiris Contract did not provide that the Respondent would work under the supervision of the homeowner. In fact, the Kassiris Contract provided that if the homeowner wanted changes made in the specifications, he could request a change order. The Kassiris Contract also did not provide that the homeowner would deduct F.I.C.A. and withholding taxes from the Respondent's fees or wages, as required in the homeowner's exemption standards. There was no provision requiring that the homeowner provide workers' compensation, as required by the statute, in order to make out the elements of the homeowner's exemption (from the requirement of having a contractor's license). The conditions for exemption from licensure were also not met in the implementation of the Kassiris Contract. Specifically, the homeowner did not act as his own contractor and provide all of the material supervision himself. Although he denies it, in fact, the Respondent negotiated the contracts with the subcontractors and, during the course of performance of the Kassiris Contract, the Respondent approved plan changes for the project, without the involvement or consultation of the owner. The Respondent acted in the capacity of a contractor in the implementation of the contract by overseeing most details of construction of the residence. He performed the on-site inspections, dealt with subcontractors, approved the manner in which work was being performed, approved payment of subcontractors, and, in general, closely managed all details of the contracting effort. Practically, the only involvement the owner had, other than being present on the site frequently, was that the owner actually wrote the checks to pay the subcontractors and delivered them to the Respondent, who, in turn, delivered them to the subcontractors. The owner obtained the building permit at the commencement of the project. The Respondent advertised in the Citrus County Chronicle, a newspaper of general circulation, on or about June 25, 1995, that he offered services for hire as a construction consultant and for project management. On or about June 27, 1995, he entered into a contract with Paul and Valerie Stamper (hereinafter the "Stamper Contract"). The Respondent was thus charged with overseeing the erection and construction of a residence located at Lot 15 of Laurel Oak Estates Subdivision in Citrus County, Florida. He acted in the capacity of a contractor in the negotiation and formulation of this contract. According to the Stamper Contract, the Respondent's responsibilities were to include the following: make recommendations as to which subcon- tractor to hire; conduct progress inspections and payment reviews; consult concerning construction problems and arrive at solutions; engage in manpower and tracking and coor- dination of resources; monitor contract compliance; provide "punch list" services; prepare and defend any change orders; engage in cost accounting. The terms of the Stamper Contract indicate that the residence to be constructed was to be purveyed to the owner, rather than a case of the owner being the contractor actually creating the product. In order for the above- referenced exemption to apply, the homeowner must be the party functioning as a contractor on his own behalf. It is noteworthy in this regard that the Stampers gave the Respondent a $3,000.00 deposit. The Stampers later decided that they did not wish to proceed with the contract and requested return of that deposit. The Respondent refused to return the deposit money, although acknowledging that the Stamper Contract was no longer in effect. In his letter to the Stampers, responding to their request for return of the deposit, he proposed, instead, that they continue to proceed with the contract and the construction of the residence, which the Stampers no longer wished to own and occupy, in order that they could sell it. The intention to construct a residence for sale to another party directly belies the possibility that the homeowner can be his own contractor, constructing a residence for his own use in compliance with the homeowner-exemption law. It shows an intention to engage in contracting by the Respondent. The existence of facts supporting this exemption is also belied because the Respondent, in his contract with the Stampers, did not contract to have F.I.C.A. or income taxes withheld from any paychecks due him from the Stampers, nor did the Stampers contract to provide workers' compensation coverage for the Respondent. The contract also did not provide that the owners, the Stampers, would act as their own contractors and provide all material supervision themselves. In fact, the Respondent was to provide supervision. The Petitioner is responsible for enforcing the prohibition against unlicensed contracting in order to protect the public. There are frequent problems with unlicensed contractors in Florida in terms of their competence to provide quality work and their willingness to do so, as well as outright fraud and harm to the public. The contracts which unlicensed contractors enter into are illegal and unenforceable. Homeowners who contract with unlicensed contractors are not eligible for recovery under the Construction Industry Licensing Recovery Fund. On July 2, 1995, the Respondent again advertised in the Citrus County Chronicle, advertising himself as available to manage the construction of residences. Based upon this notice and other information, the Petitioner issued a Notice to Cease and Desist to the Respondent, ordering him to cease and desist the unlicensed practice of contracting. The Respondent contends that he is not a contractor and that he is, instead, a project manager or consultant and, therefore, not governed by the statutory provision authorizing the Notice to Cease and Desist.
Recommendation Having considered the foregoing Findings of Fact, Conclusions of Law, the evidence of record, the candor and demeanor of the witnesses, and the pleadings and arguments of the parties, it is RECOMMENDED that a Final Order be entered imposing an administrative fine in the amount of $5,000.00 against the Respondent. DONE AND ENTERED this 23rd day of February, 1996, in Tallahassee, Florida. P. MICHAEL RUFF, Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 23rd day of February, 1996. APPENDIX TO RECOMMENDED ORDER CASE NO. 95-4534 Petitioner's Proposed Findings of Fact 1-9. Accepted. 10. Rejected, as constituting a conclusion of law. 11-14. Accepted. 15. Rejected, as being irrelevant. 16-17. Accepted. 18. Accepted, except for the next to the last sentence, which constitutes a conclusion of law. 19-20. Accepted. 21. Rejected, as constituting a conclusion of law. 22-31. Accepted. Respondent's Proposed Findings of Fact 1-2. Accepted. Rejected, as subordinate to the Hearing Officer's findings of fact on this subject matter. Rejected, as contrary to the unrefuted evidence and as subordinate to the Hearing Officer's findings of fact on this subject matter. Rejected, as not in accordance with the greater weight of the evidence and as subordinate to the Hearing Officer's findings of fact on this subject matter. Rejected, as constituting a conclusion of law, but to the extent it might be a proposed finding of fact, as not in accord with unrefuted evidence of record and as subordinate to the Hearing Officer's findings of fact on this subject matter. Rejected, as not representative of the unrefuted evidence of record and as subordinate to the Hearing Officer's findings of fact on this subject matter and as not itself being dispositive of material issues. Rejected, as contrary to the greater weight of the evidence and as not being materially dispositive. Rejected, as contrary to the greater weight of the evidence and as subordinate to the Hearing Officer's findings of fact on this subject matter and as, in part, being a conclusion of law and not a proposed finding of fact. 10-12. Rejected, as constituting a conclusion of law. COPIES FURNISHED: Donna Bass, Esquire Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, FL 32399-0750 Mr. Mark P. Stanish 6041 Town Court Springhill, FL 34606 Richard Hickok, Executive Director Construction Industry Licensing Board Department of Business and Professional Regulation 7960 Arlington Expressway, Suite 300 Jacksonville, FL 32211-7467 Lynda L. Goodgame, General Counsel Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, FL 32399-0792
The Issue Whether Respondent, a licensed general contractor, committed the violations alleged in the three-count Administrative Complaint filed by Petitioner and the penalties, if any, that should be imposed.
Findings Of Fact Respondent is the agency of the State of Florida with the responsibility to regulate building contracting. At all times relevant to this proceeding, Respondent has been licensed as a certified general contractor, having been issued license number CG C058340 in 1996. At all times relevant to this proceeding, Ms. McKinney owned and resided in a house (the House) in Opa Locka, Florida. Ms. McKinney’s mother, Mattie P. Mathis, also lived in the House. In 2001, Ms. McKinney solicited bids for an addition she wanted to put on the House. Ms. McKinney and her mother, Ms. Mathis, planned to pay for the addition with life insurance proceeds on the life of Ms. Mathis’s deceased daughter (Ms. McKinney’s sister). On the recommendation of a colleague at her work, Ms. McKinney asked Willie Muse, Jr., to bid on the work. Based on the bids she received, Ms. McKinney hired Mr. Muse to construct the addition to the House. Ms. McKinney told Mr. Muse that she wanted all work to comply with all applicable permitting requirements and laws. Mr. Muse represented to Ms. McKinney that he would get the necessary building permits and that the work would comply with all applicable laws. On July 18, 2001, Ms. McKinney and Ms. Mathis entered into a written contract with Mr. Muse whereby Mr. Muse agreed to construct the addition for the sum of $45,000.00. Mr. Muse has never been licensed as a general contractor in Florida. Ms. McKinney thought Mr. Muse was a licensed contractor and would not have entered into a contract with him if she had known that he was not licensed. Pursuant to the contract, Ms. McKinney and Ms. Mathis paid Mr. Muse the following amounts on the following dates: $6,000.00 on July 20, 2001; $7,500.00 on October 10, 2001; and $13,500.00 on November 2, 2001; for a total of $27,000.00. On or about August 21, 2001, Mr. Muse brought to Ms. McKinney a building permit application form for her to sign. The application form had been filled out before Mr. Muse presented it to Ms. McKinney. Respondent was not present when Mr. Muse presented the form to Ms. McKinney. Respondent’s name, signature, and contractor’s license number appeared on the application form when Mr. Muse presented the form to Ms. McKinney. Ms. McKinney signed the form on August 21, 2001. Ms. McKinney saw Respondent’s name for the first time when she read the building permit application form. Prior to that time, Ms. McKinney and Ms. Mathis had never known or heard of Respondent. At all times relevant to this proceeding, Respondent knew that Mr. Muse was not a licensed contractor. Mr. Muse submitted the building permit application form to the Miami-Dade County Building Department (Building Department), which issued a building permit for the work on the House on October 5, 2001. Mr. Muse commenced working on the House in October 2001, but he never finished. After he received the payment in November 2001, Mr. Muse stopped working on the House for an extended period of time. During that time, Ms. McKinney attempted on several occasions to persuade Mr. Muse to resume work on the House. Prior to stopping work on the House, Mr. Muse removed a portion of the roof of the existing structure, which exposed the interior of the House to the elements. That exposure resulted in extensive damages to the House, including the collapse of the kitchen ceiling from water intrusion. By letter dated April 15, 2002, the Building Department advised Ms. McKinney that her building permit would expire in approximately 30 days. That letter prompted Ms. McKinney to contact the Building Department, where she was told that Respondent was her contractor, not Mr. Muse. Ms. McKinney secured information (from the face of the building permit) that enabled her to contact Respondent’s mother.3 That contact resulted in two meetings between Ms. McKinney and Respondent towards the end of April 2002. During the first meeting, Ms. McKinney related to Respondent the history of the project, including the amounts that had been paid to Mr. Muse. She also showed him the work that had been done and the damages that had occurred. During the second meeting, Mr. Muse was in attendance. Ms. McKinney, Ms. Mathis, and Respondent reached a verbal understanding that was not reduced to writing. They agreed that Respondent would finish the work on the House for the unpaid balance of the contract price $45,000.00 less $27,000.00 paid to Mr. Muse, which equals $18,000.00.4 The parties agreed that Respondent would pay for labor and that Ms. McKinney and Ms. Mathis would pay material suppliers directly and receive credit toward the contract price for such payments. The parties contemplated that Mr. Muse would perform most of the labor because of the monies he had already received. On the basis of the verbal contract, Respondent resumed the work on the House. On June 12, 2002, Respondent presented a draw request for $3,500.00 for electrical, plumbing, and roofing work that had been performed. Ms. Mathis wrote Respondent a check in the amount of $3,500.00 for that work. Ms. McKinney was opposed to paying Respondent the sum of $3,500.00 because she believed he had not completed the work for which he was billing. Ms. Mathis paid that sum despite Ms. McKinney’s opposition. At some undetermined time following June 12, 2002, Ms. McKinney told Respondent that she did not want Mr. Muse working on the House. Respondent then asked to be paid in advance for work to be done on the House because he would have to pay his laborers. Ms. McKinney and Ms. Mathis would not agree to payment in advance. In July 2002, the project was not complete and Respondent’s progress on the work on the House became unsatisfactory to Ms. McKinney. On October 14, 2002, Ms. McKinney filed a complaint against Respondent with Petitioner, claiming, among other things, that Respondent had abandoned the project. Her complaint alleged that work ended on the project in July 2002. At some undetermined time between June and October 2002, Ms. McKinney filed a criminal complaint against Mr. Muse, which resulted in criminal misdemeanor charges being filed against him in Miami-Dade County Court. After she filed the criminal complaint against Mr. Muse, Ms. McKinney told Respondent that she wanted to wait to proceed with the project until she knew what was going to happen with her criminal complaint. In the criminal proceeding, the Court ordered Mr. Muse on April 11, 2003, to pay restitution to Ms. McKinney in the amount of $16,008.04, payable in monthly installments of $300.00. On March 2, 2004, the Court reduced the amount of restitution to $4,000.00, payable in monthly installments of $50.00 beginning April 1, 2004. As of the date of the final hearing in this proceeding, Mr. Muse had paid Ms. McKinney restitution in the total amount of $750.00. As part of the criminal proceeding, Respondent was asked to give his opinion as to the value of the work completed by Mr. Muse and his estimated cost of completing the work. Respondent valued the work completed by Mr. Muse at $14,073.75 (labor and materials). Respondent estimated that it would cost $22,200.00 to complete the project. Both estimates were dated March 23, 2003. On October 1, 2003, Theodore R. Gay, Assistant General Counsel for Petitioner wrote Ms. McKinney the following letter pertaining to the complaint she had filed in October 2002: The Legal Department has evaluated your complaint against the above named contractor [Respondent]. After reviewing the evidence gathered during the investigation of the referenced matter, we have determined that in accordance with the rules and policies of the Construction Industry Licensing Board, this case is appropriately closed with the issuance of a Letter of Caution to the contractor. Because this case has been dismissed without a finding of probable cause, the file will remain confidential and exempt from the public records. On January 6, 2004, Ms. McKinney wrote Mr. Gay a letter that provided, in part, as follows: This letter is a request to re-open the case [against Respondent] because as prior conversation (sic) when I spoke to you in late August 2003 or early September 2003, I informed you that Mr. Jones told me that he would help me as much as possible to complete the construction on my property. Since your letter that stated you didn’t find any error on Mr. Jones’ behalf, I have not heard or seen him since October 2003, nor has any work been performed on my property. . . . Respondent came back to the House after October 2003 and talked to Ms. McKinney about the work. Ms. McKinney told him that she would pay up to a total of $45,000.00 for the work, but that she would not pay above that figure. Because of the estimate Respondent provided in the criminal proceeding dated March 23, 2003, Ms. McKinney believed that Respondent wanted $22,0000.00 to complete the work. However, Respondent never told her that he would not complete the work for a sum equal to $45,000.00 less the sums that had already been paid. Ms. McKinney would not pay Respondent for work until after the work was completed. After Mr. Gay’s letter dismissing the complaint that Ms. McKinney had filed, Respondent did no further work on the House, but he did have further conversations about the project. Ms. McKinney and Respondent could not agree on payment terms for Respondent to complete the project. Ms. McKinney testified that she did not fire Respondent. However, it is clear that she would not let Mr. Muse do further work on her house and she would not pay Respondent until after the work had been done. Ms. McKinney changed the terms of her verbal contract with Respondent by prohibiting Mr. Muse from working on the project. In November 2003, Ms. McKinney and Ms. Mathis had an argument over the money that had been spent on the house. Ms. McKinney talked to Respondent about his helping her obtain a mortgage on the house to pay for the balance of the work on the House. Ms. McKinney told Respondent that she did not want Respondent to ask her mother for any more money. Ms. McKinney told Respondent that she would use him as the contractor to complete the work if she obtained the financing. Ms. McKinney was unable to get the financing due to the condition of the House. The permits obtained by Respondent are still valid. Ms. McKinney has hired various workers on her own in an effort to complete the work on the House. As of the final hearing, the work on the House had not been completed. As of May 19, 2005, Petitioner’s costs of investigation and prosecution of this case, excluding costs associated with attorney time, totaled $920.29.
Recommendation Based on the foregoing findings of fact and conclusions of Law, it is RECOMMENDED that Petitioner enter a Final Order that adopts the Findings of Facts and Conclusions of Law set forth in this Recommended Order. It is further recommended that the Final Order: Find Respondent guilty of the violation alleged in Count I of the Administrative Complaint and impose against him an administrative fine in the amount of $2,500.00; Find Respondent guilty of the violation alleged in Count II of the Administrative Complaint, but impose no additional administrative fine for that violation; Find Respondent not guilty of the violation alleged in Count III of the Administrative Complaint; Order that Respondent be jointly and severally liable to Ms. McKinney and Ms. Mathis with Mr. Muse for restitution in the amount of $4,000.00, minus $750.00 paid by Mr. Muse; and Order Respondent to pay costs of investigation and prosecution of this matter in the amount of $920.29. DONE AND ENTERED this 10th day of August, 2005, in Tallahassee, Leon County, Florida. S CLAUDE B. ARRINGTON 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 10th day of August, 2005.
Recommendation Based on the foregoing finding of fact and conclusions of law, it is RECOMMENDED that Respondent, Harold D. Biggs, be found guilty of violating Subsections 409.129(1)(j), 489.113 (2)and (3), and 489.117(1) and (2), Florida Statutes, and be given a public reprimand and pay a $500 fine; all other charges should be DISMISSED. DONE and ENTERED this 23rd day of November, 1982, in Tallahassee, Florida. DONALD R. ALEXANDER 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 23rd day of November, 1982.
The Issue The issues are as follows: (a) whether Respondents each engaged in the unlicensed practice of contracting as defined in Sections 489.105(3) and 489.105(6), Florida Statutes (2006), in violation of Section 489.127(1)(f), Florida Statutes (2006); (b) whether Respondents each engaged in the unlicensed practice of electrical contracting as defined by Sections 489.505(9) and 489.505(12), Florida Statutes (2006), in violation of Section 489.531(1), Florida Statutes (2006); and (c) if so, what penalty should be imposed.
Findings Of Fact At all times material here, Respondents were married and doing business together as "B and P Enterprises of Central Florida, Inc." The "B and P" stands for Brenda and Phillip. Respondents are not and never have been licensed to engage in contracting or electrical contracting in Florida. In March 2006, Carla Adams had recently purchased her first home and sought to refinance it. The lender required an inspection of the home. The lender also required that any work on the home be performed by a licensed person or entity. In March 2006, an inspector employed by Pillar to Post, Inc., conducted an inspection of Ms. Adams' home. The inspection report, dated March 10, 2006, listed a number of areas that needed work and made recommendations for correction of those problems. In July 2006, Ms. Adams saw an advertisement in a newspaper for the sale of a used car. Ms. Adams and Rev. Tracey Davis went to Respondents' property with the objective of purchasing a used vehicle. While on the property, Ms. Adams and Rev. Davis entered the Respondents' home. Because both women admired the home, Respondents gave them a tour. During the tour, Respondents stated that Henley had performed the work himself. While in Respondents' home, Ms. Adams and Rev. Davis told Respondents that Ms. Adams needed work done on her home. Ms. Adams also told Respondents that her lender required that the work be done by a licensee. Henley, both upon his own volition and after being asked, told Ms. Adams and Rev. Davis that he was a licensed contractor. Henley removed a picture-ID card from his wallet and stated this was his license to practice contracting. Respondent Carpenter condoned this statement. Ms. Adams showed Respondents the March 10, 2006, inspection report. Henley assured Ms. Adams that he could do everything on the report that needed to be done. Henley further stated that his license was issued by “DBPR” - the Department of Business and Professional Regulation. Carpenter affirmatively agreed with this statement. Henley warned Ms. Adams that she should never have work done by anyone that was not licensed or certified and that she could check licensure status with DBPR. Respondent Carpenter affirmed this warning. Before speaking with Respondents, Ms. Adams and Rev. Davis had never heard of DBPR. It was only due to Henley’s reference to DBPR that Ms. Adams knew she could contact Petitioner regarding the issues in this case. Respondents advised Ms. Adams that they were willing to go to Ms. Adams’ home and give her an estimate of what they would charge to perform the needed work. Ms. Adams and Rev. Davis left Respondents' property expecting to see Respondents in the near future. In August 2006, Respondents went to Ms. Adams’ home in Tallahassee, Florida. Ms. Adams told Respondents she needed electrical, structural and plumbing work done as set forth in the Pillar-to-Post report. Respondents then inspected the home, took measurements, and made a verbal offer to perform the needed contracting work. Respondents returned to Ms. Adams’ home later in August 2006. At that time, Respondents presented Ms. Adams with a written estimate of what they would charge to do certain contracting work on her home. The proposal included, but was not limited to, structural, plumbing and electrical work. Respondents' proposal stated as follows in relevant part: REMOVE ALL OLD FLOOR COVERING Carpet Padding Lineoleum (sic) Square Stick tile Tack strip All of the above, but not limited to just above 1,470 Sq. Ft. @ $1.10 Sq. Ft. INSTALL NEW FLOOR COVERING 1,470 Sq. Ft. of tile on floor @ $1.75 Sq. Ft. and install Durarock (sic) or hardi (sic) backing board, if needed KITCHEN Remove wall and old 1/2 bathroom and put back to finished product Not including finishing drywall and painting drywall Remove all old plumbing and re-route Electrical wires HALL BATHROOM Remove bathtub, and tub walls Install durarock (sic) and new plumbing fixtures [a]s provided by homeowner Install 100 Sq. Ft. of wall tile around old tub area @ $1.75 Sq. Ft. [m]aking a new shower in the room Build a curbing, and drypack and install shower floor tile Install drain and rubber pan REMOVE OLD RAILING FROM FRONT PORCH The total price listed for the above referenced work was $5,234.50. Ms. Adams had received other estimates for the work. Therefore, Ms. Adams was pleased with the price and sought assurance that it would not increase. Respondents promised Ms. Adams that the cost would not increase. To further assure her, they both signed the contract in her presence. During the hearing, Henley admitted that he contracted with Ms. Adams to perform the labor as listed on this contract. In an attempt to ascertain Henley’s skill as a contractor, Ms. Adams decided to begin with the renovation of the bathroom located in the entrance way to the master bedroom. Ms. Adams agreed to buy the construction, plumbing, or electrical materials that Henley needed to do the work. Ms. Adams works two jobs and was not always home when Respondents performed the contracted work. As a result, Rev. Davis, who lived nearby, was present at the home to let Respondents in and observe the work. In order to enlarge the bathroom adjoining the master bedroom, Henley demolished a wall between the old bathroom and a walk-in closet. Henley also removed the door into the old bathroom and constructed a single wall with the entrance to the enlarged room through the door to the old closet. In the course of this alteration and expansion, Henley damaged the adjoining wall to the living room. He subsequently repaired the damage. In the enlarged bathroom, Henley removed a sink from the old bathroom area and installed it in the area that had been a closet. The area of the old closet had no plumbing. The removal and installation of the sink required Henley to remove old piping and replace it with larger pipes to increase the water flow. During the hearing, Henley admitted removing the sink and disconnecting the plumbing. Henley installed the custom-built shower as described in the contract in Ms. Adams’ bathroom. During the hearing, Henley admitted cutting a hole in the floor of Ms. Adams’ bathroom and installing a shower drain pan. Henley removed and replaced the toilet in Ms. Adams’ bathroom. Additionally, Henley, with Carpenter's help, removed the old bathtub. Henley admitted removing the bathtub and disconnecting the plumbing. Henley then installed a replacement Jacuzzi bathtub at the location of the previously-removed bathtub in Ms. Adams’ bathroom. Henley had to remove the old piping and replace it with larger pipes to increase the water flow for the replacement Jacuzzi. The toilet, sink, and bathtub removal and the shower- installation required plumbing work that made it necessary to turn off the water to the home. During the course of installing the Jacuzzi bathtub, Henley discovered that his work resulted in drainage problems he could not correct. For the first time, he told Ms. Adams that his license did not allow him to perform plumbing work. Henley then told Ms. Adams that, as the contractor on the job, he could subcontract the needed plumbing work. In early September 2006, Henley called Roto-Rooter as a plumbing subcontractor. Roto-Rooter performed the following plumbing work at Ms. Adams' home: Hooked up all the basic [drain] lines and the toilet in new bathroom to the m/l [main line]. Also ran water lines for the new sink, but found problem with shower valve. It was put in wrong and will not work until it's moved. Note: Everything else is working at this time. Price includes parts and labor. ( * * * out the tile and fix shower valve, not everything is working.) The Roto-Rooter invoice indicates a total cost in the amount of $1,432.78 for the work performed in Ms. Adams' home. Ms. Adams and Respondents had a financial dispute about which party had to pay Roto-Rooter. The dispute ultimately led to a falling out regarding the completion of the contracted work. Ms. Adams’ bathroom currently is inoperable because the toilet and Jacuzzi bathtub do not work. There is raw sewage underneath her home. In order to repair her bathroom, Ms. Adams received an estimate of approximately $5,000.00. Ms. Adams’ decision to begin with the renovation of her bathroom also involved ascertaining Henley’s skills as an electrical contractor. Based on his assurances that he could do the work, Ms. Adams allowed Henley to remove and relocate electrical light fixtures and switches in the bathroom, closet, and hallway. During the course of this work, Henley left hot wires exposed. On or about September 14, 2006, Carpenter came to Ms. Adams’ home and presented an invoice for $1,200.00 for the contracted work that had been performed pursuant to the initial contract. The invoice was on the letter head of “Brenda & Phillip, Phillip Henley, Inc." It stated as follows in relevant part: Remodel Master Bathroom Take out all fixtures-sink, cabinet, cast iron tub, toilet and replace with new Jacucci (sic) tub, new sink and cabinet, new shower and put back old toilet. Take out old tile on walls and drywall, take out two closets to enlarge bathroom. Re-wire and re-plumb all fixtures and installed durarock (sic) on floor, walls and wet areas and installed blueboard on balance of walls. Built a custom shower and installed custom tile design on walls and floor. Cost: $1,900.00 Less cash advances: 8/9 $100 8/16 $300 8/22 $300 $700 -700.00 $1,200.00 Plus: Materials & receipts: 8/11 $ 81.19 8/17 23.67 8/19 26.84 8/24 108.51 $240.21 +$240.21 Balance Due: $1,440.00 Other labor -240.00 $1,200.00 The invoice was signed by Henley and Carpenter and included the following statement: "Thank you for doing business with Brenda & Phillip!" The invoice stated that the check should be payable to Carpenter. Excluding costs associated with an attorney's time, Petitioner has expended $554 in total cost relative to the investigation and prosecution of DOAH Case No. 09-2541 against Carpenter and $1,005.67 in total cost relative to the investigation and prosecution of DOAH Case No. 09-2545 against Henley.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That Petitioner enter a final order finding that each Respondent violated Sections 489.127(1)(f) and 489.531(1), Florida Statutes, imposing a total administrative fine in the amount of $11,000 against each Respondent, and assessing costs in the amount of $554 against Carpenter and $1,005.67 against Henley. DONE AND ENTERED this 23rd day of February, 2010, in Tallahassee, Leon County, Florida. S SUZANNE F. HOOD 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 23rd day of February, 2010. COPIES FURNISHED: Maura M. Bolivar, Esquire Department of Business and Professional Regulation 1940 North Monroe Street, Suite 42 Tallahassee, Florida 32399 Brenda Carpenter Phillip Henley 5209 Southwest U.S. 221 Greenville, Florida 32331 Amy Toman, Hearing Officer Office of the General Counsel Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792 Reginald Dixon, General Counsel Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792
