08-001432PL Department Of Business And Professional Regulation, Construction Industry Licensing Board vs. Armando Victor Calleja
 Status: Closed
Recommended Order on Friday, August 29, 2008.


View Dockets  
Summary: Respondent contractor failed to pay a subcontractor, and a lien was filed against the homeowner. Respondent abandoned the project and commenced work without a building permit.

1STATE OF FLORIDA

4DIVISION OF ADMINISTRATIVE HEARINGS

8DEPARTMENT OF BUSINESS AND )

13PROFESSIONAL REGULATION, )

16CONSTRUCTION INDUSTRY LICENSING )

20BOARD, )

22)

23Petitioner, )

25)

26vs. ) Case No. 08-1432PL

31)

32ARMANDO VICTOR CALLEJA, )

36)

37Respondent. )

39)

40RECOMMENDED ORDER

42Pursuant to notice, a final hearing was held in this case

53on June 20, 2008, in Viera, Florida, before Susan B. Harrell, a

65designated Administrative Law Judge of the Division of

73Administrative Hearings.

75APPEARANCES

76For Petitioner: Scott A. Smothers, Esquire

82Robert A. Crabill, Esquire

86Wright, Fulford, Moorehead & Brown, P.A.

92Post Office Box 2828

96Orlando, Florida 32801-2828

99For Respondent: Tino Gonzalez, Esquire

1041600 Sarno Road, Suite 1

109Melbourne, Florida 32935

112STATEMENT OF THE ISSUES

116The issues in this case are whether Respondent violated

125489.129(1)(m), and 489.129(1)(o), Florida Statutes (2005), 1 and,

133if so, what discipline should be imposed.

140PRELIMINARY STATEMENT

142On July 18, 2007, the Department of Business and

151Professional Regulation (Department) filed a six-count

157Administrative Complaint before the Construction Industry

163Licensing Board (Board), alleging that Respondent,

169Armando Victor Calleja (Mr. Calleja), violated Subsections

176489.129(1)(m), and 489.129(1)(o), Florida Statutes. In its

183Proposed Recommended Order, the Department states that it is

192withdrawing the allegations in Count I of the Administrative

201Complaint, which relate to the violation of Subsection

209489.119(2), Florida Statutes.

212Mr. Calleja requested an administrative hearing, and the

220case was forwarded to the Division of Administrative Hearings on

230December 26, 2007, and assigned DOAH Case No. 07-5784PL. A

240final hearing was commenced, and the parties announced at the

250final hearing that the parties had agreed to settle. The file

261of the Division of Administrative Hearings was closed by Order

271dated March 6, 2008.

275On March 20, 2008, the Department filed a Motion to Re-open

286Case, stating that the parties were unable to resolve the

296issues. The motion was granted, and the case was re-opened and

307assigned DOAH Case No. 08-1432PL. The final hearing was

316scheduled for May 8, 2008. On April 21, 2008, the Department

327filed Petitioner’s Motion to Continue Final Hearing. The motion

336was granted, and the final hearing was re-scheduled for June 20,

3472008.

348At the final hearing, the Department called the following

357witnesses: Mark Schulsemeyer, Clifford P. Stokes, Patrick J.

365McDonough, David Bogenrief, and Jack S. Coleman. Petitioner’s

373Exhibits 1 through 5, 8, 9, and 11 through 19 were admitted in

386evidence. Petitioner’s Exhibits 7 and 20 were not admitted in

396evidence.

397At the final hearing, Mr. Calleja testified in his own

407behalf. Respondent’s Exhibits 1, 2, and 3 were admitted in

417evidence.

418The two-volume Transcript was filed on July 21, 2008. The

428parties agreed to file their proposed recommended orders within

437ten days of the filing of the Transcript. The Department filed

448its Proposed Recommended Order on July 29, 2008. As of the date

460of this Recommended Order, Mr. Calleja has not filed a post-

471hearing submittal.

473FINDINGS OF FACT

4761. At all times material to this proceeding, Mr. Calleja

486had a valid and active license as a commercial certified

496pool/spa contractor. His license number is CP 1456568. At all

506times material to this proceeding, Mr. Calleja was the owner of

517or did business as Nautica Pools & Spa (Nautica).

5262. The Board is charged with regulating the practice of

536contracting in the State of Florida pursuant to Chapters 455

546and 489, Florida Statutes.

5503. On April 2, 2005, Mr. Calleja, as the representative

560for Nautica, entered into a contract with Jack Coleman to

570renovate Mr. Coleman’s existing pool.

5754. From April 2005 to July 27, 2005, Nautica installed

585rebar in the pool and set a new skimmer. Nautica subcontracted

596with Prestige Gunite of Melbourne, Inc. (Prestige), to put the

606gunite in the pool. Gunite is concrete that is sprayed out of a

619hose to form the walls of the pool.

6275. Personnel from Prestige arrived on the project site on

637the afternoon of July 27, 2005, to apply the gunite, but did not

650do so because the application would have taken longer to do than

662one afternoon. The following day, July 28, 2005, Mr. Calleja

672and a crew from Prestige returned to the project. A

682representative from Prestige told Mr. Calleja that the steel

691rebar had not been laid properly. Mr. Calleja told Prestige to

702apply the gunite and do what was necessary to cover the steel.

714Mr. Calleja left the project site, and Prestige began applying

724the gunite.

7266. During the application of the gunite, it became evident

736that the first spraying of gunite was not going to cover the

748steel. Attempts were made to reach Mr. Calleja, but Mr. Calleja

759was not available to solve the problem. Prestige began applying

769additional coats of gunite in an attempt to cover the steel.

7807. After the gunite was applied, two problems were

789identified. The first problem was in the fountain area. The

799gunite had not been applied properly, and there were hollow

809areas. The second problem was in the wet deck area. The steel

821rebar was too close to the surface of the floor, and the steel

834was visible. In order to remedy the problems, the concrete in

845the areas would have to be jack hammered to remove the concrete,

857and new gunite would have to be applied.

8658. By letter dated August 28, 2005, Nautica requested

874Mr. Coleman to pay Prestige $954.57. Nautica advised

882Mr. Coleman that when that amount had been paid, Nautica would

893pay the balance owed to Prestige and forward a release to

904Mr. Coleman. Mr. Calleja claimed that Mr. Coleman owed the

914$954.57 because Mr. Coleman had damaged Mr. Calleja’s saw. In

924the letter, Nautica acknowledged that there was additional work

933which had not been completed. The letter was signed by

943Mr. Calleja’s wife. Mr. Calleja had verbally told Mr. Coleman

953that he wanted Mr. Coleman to pay him $2,000.00, and he would

966take care of paying Prestige.

9719. The general specifications in the contract required

979that the contractor was responsible for “[s]tandard structural

987engineering plans and permits required by code.” Prior to

996commencing work on the pool renovation, Mr. Calleja did not

1006secure the required building permits for the project.

101410. Mr. Coleman called Clifford Stokes, who is the

1023building official with the town of Indialantic, and asked

1032whether a permit had been issued. Mr. Stokes went to the

1043project site. At that time, the gunite had been shot, and there

1055was exposed steel rebar. Since no permit had been pulled, no

1066inspection had been done after the steel was put in place.

107711. On September 15, 2005, Mr. Calleja applied for a

1087building permit. Because the steel had been placed, and the

1097gunite shot, it was impossible to do a visual inspection to

1108determine whether the steel had been placed properly. In order

1118to get a permit after the construction had been commenced,

1128certain affidavits had to be submitted to the building official

1138of Indiatlantic. Mr. Calleja had to submit an affidavit stating

1148that the steel had been placed properly. An affidavit stating

1158that the work had been performed properly had to be submitted

1169from an engineer, who had made a site visit to the project and

1182had determined that the work performed had been according to

1192code. Additionally, Mr. Coleman was required to submit an

1201affidavit that stated that he understood that no inspection had

1211been done of the work by the building official. Mr. Calleja

1222also had to pay a fine to Indiatlantic for commencing work

1233without a building permit.

123712. On October 19, 2005, Mr. Calleja and Robert Lee from

1248Lee Engineering came to the project site for the purpose of

1259preparing the affidavits necessary to secure a building permit.

1268Mr. Calleja did not return to the project site after October 19,

12802005.

128113. Mr. Coleman sent a letter to Mr. Calleja dated

1291October 13, 2005, noting that no work had been done on the

1303project since July 28, 2005, and requesting that Mr. Calleja

1313remedy a number of deficiencies with the work performed on the

1324project and complete the job in accordance with the contract.

1334The letter was returned to Mr. Coleman by the postal service

1345because the time for forwarding mail from the address listed in

1356the letter had expired. When Mr. Calleja came to the project

1367site on October 19, 2005, Mr. Coleman requested a current

1377address from Mr. Calleja, but Mr. Calleja refused to give him

1388one.

138914. Mr. Coleman wrote another letter to Mr. Calleja dated

1399October 25, 2005, again stating that no work had been done since

1411July 28, 2005, and requesting that Mr. Calleja correct the

1421deficiencies in the work and complete the contract.

142915. Mr. Coleman filed an action in small claims court

1439attempting to recover the money for the lien filed by Prestige.

1450However, Nautica had filed for bankruptcy, and Mr. Coleman did

1460not proceed with the small claim action.

146716. A building permit for the project was issued in

1477January 2006. The issuance of the building permit did not

1487relieve Mr. Calleja from the responsibility of assuring that the

1497work in the shallow end of the pool area where the rebar was

1510sticking up was redone properly. After the building permit was

1520issued, neither Mr. Calleja nor Mr. Coleman called for

1529inspections by the Indiatlantic building official. The permit

1537expired in June 2006.

154117. After the issuance of the building permit, Nautica

1550performed no further work on the project.

155718. The total contract price was $9,340.00. Mr. Coleman

1567and Mr. Calleja entered into an addendum to the contract on

1578July 27, 2005, which increased the contract price to $13,000.00.

158919. The contract called for a down payment of $934.00,

1599which was ten percent of the contract amount. After completion

1609of excavation and the form and steel work, a payment of

1620$3,736.00 was due, representing 40 percent of the total work.

1631After completion of the pool shell, a payment of $2,802.00 was

1643due, representing 30 percent of the total work. Prior to

1653plastering, which represented 20 percent of the total work, a

1663payment of $1,868.00 was to be paid. The contract addendum of

1675$3,660.00 called for 50 percent of the addendum amount to be

1687paid at the completion of the pool shell, and the remaining

169850 percent of the addendum amount was to be paid at the

1710completion of the pool.

171420. By check dated April 22, 2005, signed by Mr. Coleman’s

1725wife, Mr. Coleman paid Mr. Calleja $1,000.00 as down payment on

1737the project. In June 2005, Mr. Coleman gave Mr. Calleja a check

1749for $573.42 for a pool and spa light. Mr. Coleman was to

1761receive a credit of $380.00 toward the contract for the light.

1772Additionally, Mr. Coleman overpaid Mr. Calleja by $166.90. By

1781check dated July 27, 2005, and signed by Mr. Coleman’s wife,

1792Mr. Coleman paid Mr. Calleja $7,396.00. This payment was to

1803include half of the addendum amount, but Mrs. Coleman

1812inadvertently included the full amount of the addendum. By

1821check dated August 1, 2005, and signed by Mrs. Coleman,

1831Mr. Coleman paid Mr. Calleja $739.10. Thus, by August 1, 2005,

1842Mr. Coleman had paid Mr. Calleja, $9,682.00 on the contract.

185321. In December 2005, Mr. Coleman asked a representative

1862of Paradise Pools, Patrick McDonough, to come to the project

1872site and give an estimate to complete the pool. The estimate of

1884$7,800.00 from Paradise Pools was for a cosmetic plaster of the

1896existing pool, and the work was not warranted against leakage.

1906Mr. McDonough would not warrant the work, because he saw a lot

1918of potential liability problems with the work performed by

1927Mr. Calleja. Mr. McDonough did not recommend that a cosmetic

1937plaster be performed because of the potential problems.

194522. On October 26, 2005, Prestige filed a Claim of Lien

1956against the property of Mr. Coleman for $4,227.40 plus interest,

1967costs, and attorney’s fees. The lien was for the work which

1978Prestige had performed on the project on July 28, 2005, and for

1990which Mr. Calleja had failed to pay. Mr. Coleman called

2000Mr. Calleja and told him that a lien had been filed.

2011Mr. Calleja assured him that he would pay the lien, but he

2023failed to do so. Mr. Coleman satisfied the lien by check dated

2035April 11, 2006, for the amount of $5,139.58.

204423. David Bogenrief, P.E., viewed the project in June 2008

2054and provided Mr. Coleman with a quote to develop structural

2064plans to repair Mr. Coleman’s pool. There was no testimony on

2075the amount of the quote, and the Department did not request that

2087the written proposal be admitted in evidence. Mr. Bogenrief did

2097not know what it would cost to repair the pool.

210724. The Department has incurred $470.49 for costs in the

2117prosecution of this case.

2121CONCLUSIONS OF LAW

212425. The Division of Administrative Hearings has

2131jurisdiction over the parties to and the subject matter of this

2142proceeding. §§ 120.569 and 120.57, Fla. Stat. (2007).

215026. The Department has the burden to establish the

2159allegations in the Administrative Complaint by clear and

2167convincing evidence. Department of Banking and Finance v.

2175Osborne Stern and Co. , 670 So. 2d 932 (Fla. 1996). The

2186Department alleges that Mr. Calleja violated Subsections

2193m),

2194and 489.129(1)(o), Florida Statutes, which provide:

2200(1) The board may take any of the following

2209actions against any certificateholder or

2214registrant: place on probation or reprimand

2220the licensee, revoke, suspend, or deny the

2227issuance or renewal of the certificate,

2233registration, or certificate of authority,

2238require financial restitution to a consumer

2244for financial harm directly related to a

2251violation of a provision of this part,

2258impose an administrative fine not to exceed

2265$10,000 per violation, require continuing

2271education, or assess costs associated with

2277investigation and prosecution, if the

2282contractor, financially responsible officer,

2286or business organization for which the

2292contractor is primary qualifying agent, a

2298financially responsible officer, or a

2303secondary qualifying agent responsible under

2308s. 489.1195 is found guilty of any of the

2317following acts:

2319* * *

2322(g) Committing mismanagement or misconduct

2327in the practice of contracting that causes

2334financial harm to a customer. Financial

2340mismanagement or misconduct occurs when:

23451. Valid liens have been recorded against

2352the property of a contractor’s customer for

2359supplies or services ordered by the

2365contractor for the customer’s job; the

2371contractor has received funds from the

2377customer to pay for supplies or services;

2384and the contractor has not had the liens

2392removed from the property, by payment or by

2400bond, within 75 days after the date of such

2409liens;

24102. The contractor has abandoned a

2416customer’s job and the percentage of

2422completion is less than the percentage of

2429the total contract price paid to the

2436contractor as of the time of abandonment,

2443unless the contractor is entitled to retain

2450such funds under the terms of the contract

2458or refunds the excess funds within 30 days

2466after the date the job is abandoned;

2473* * *

2476(j) Abandoning a construction project in

2482which the contractor is engaged or under a

2490contract as a contractor. A project may be

2498presumed abandoned after 90 days if the

2505contractor terminates the project without

2510just cause or without proper notification to

2517the owner, including the reason for

2523termination, or fails to perform work

2529without just cause for 90 consecutive days.

2536* * *

2539(m) Committing incompetency or misconduct

2544in the practice of contracting.

2549* * *

2552(o) Proceeding on any job without obtaining

2559applicable local building department permits

2564and inspections.

256627. The Department has established by clear and convincing

2575evidence that Mr. Calleja violated Subsection 489.129(1)(g)1.,

2582Florida Statutes, by failing to satisfy the lien, which Prestige

2592filed against the property of Mr. Coleman for work and materials

2603which were furnished on the project. Mr. Calleja had received

2613the payment from Mr. Coleman for the work and materials

2623furnished by Prestige, but failed to pay Prestige for them.

263328. The Department has established by clear and convincing

2642evidence that Mr. Calleja violated Subsection 489.129(1)(g)2.,

2649Florida Statutes, by abandoning the project when the percentage

2658of completion is less than the total of the contract price which

2670had been paid to him. The last work that Mr. Calleja actually

2682did on the project was on July 28, 2005. No further work could

2695be done on the project until a building permit was obtained. He

2707did take action between September 2005 and January 2006 to get a

2719building permit. Mr. Calleja did nothing further on the

2728contract after the building permit was issued in January 2006.

2738Mr. Coleman had paid Nautica $9,682.00, which represented

2747approximately 75 percent of the contract amount. The pool shell

2757had not been completed at the time that Mr. Calleja abandoned

2768the project because the work was deficient. Thus, the contract

2778completion was 40 percent.

278229. The Department has established by clear and convincing

2791evidence that Mr. Calleja violated Subsection 489.129(1)(j),

2798Florida Statutes, by abandoning the project for over 90 days and

2809failing to provide just cause to terminate work on the project.

2820Mr. Calleja never performed any work on the project after the

2831building permit was issued in January 2006 and never provided

2841just cause for failing to terminate work on the project.

285130. The Department has established by clear and convincing

2860evidence that Mr. Calleja violated Subsection 489.129(1)(m),

2867Florida Statutes. Mr. Calleja failed to obtain a building

2876permit prior to commencing work on the project.

288431. The Department has established by clear and convincing

2893evidence that Mr. Calleja violated Subsection 489.129(1)(o),

2900Florida Statutes. Mr. Calleja did not obtain a final inspection

2910of the project.

291332. Florida Administrative Code Rule 61G4-17.001 provides

2920for the penalty ranges for disciplinary actions taken by the

2930Department. The penalty for a violation of Subsection

2938489.129(1)(g) ranges from a $1,500.00 fine and/or probation or

2948suspension to a $5,000.00 fine and/or probation or suspension.

2958The penalty for a violation of Subsection 489.129(1)(j), Florida

2967Statutes, ranges from a $2,500.00 fine and/or probation or

2977suspension to a $7,500.00 fine and/or probation or suspension.

2987The penalty for a violation of Subsection 489.129(1)(m), Florida

2996Statutes, ranges from a $1,000.00 fine and/or probation or

3006suspension to a $5,000.00 fine and/or probation or suspension.

3016The penalty for a violation of Subsection 489.129(1)(o), Florida

3025Statutes, ranges from a $250.00 fine to a $1,000.00 fine and/or

3037probation or suspension. Additionally, Florida Administrative

3043Code Rule 61G4-17.001(5) provides that the Board may require the

3053contractor to make restitution to the extent of the financial

3063harm sustained by the consumer.

3068RECOMMENDATION

3069Based on the foregoing Findings of Fact and Conclusions of

3079Law, it is RECOMMENDED that a final order be entered finding

3090that Mr. Calleja did not violate Subsection 489.119(2), Florida

3099Statutes, and that Mr. Calleja violated Subsections

3106m),

3107and 489.129(1)(o), Florida Statutes; for the violation of

3115Subsection 489.129(1)(g)1., Florida Statutes, imposing a fine of

3123$2,000.00, suspending Mr. Calleja's license for six months, and

3133requiring Mr. Calleja to pay Mr. Coleman $5,139.58 as

3143restitution for the payment of the lien filed by Prestige; for

3154the violation of Subsection 489.129(1)(g)2., Florida Statutes,

3161imposing a fine of $2,000.00, suspending Mr. Calleja's license

3171for six months, and requiring Mr. Calleja to pay Mr. Coleman

3182$9,682.00, which represents the amount that Mr. Coleman paid to

3193Mr. Calleja; for the violation of Subsection 489.129(1)(j),

3201Florida Statutes, imposing a $1,000.00 fine and four years of

3212probation; for the violation of Subsection 489.129(1)(m),

3219Florida Statutes, imposing a $1,000.00 fine and four years of

3230probation, which shall run concurrently with the other probation

3239imposed; and, for the violation of Subsection 489.129(1)(o),

3247Florida Statutes, imposing a $1,000.00 fine and two years of

3258probation to run concurrently with the other probation imposed;

3267and requiring payment of $470.49 as costs for the prosecution of

3278this case.

3280DONE AND ENTERED this 29th day of August, 2008, in

3290Tallahassee, Leon County, Florida.

3294S

3295SUSAN B. HARRELL

3298Administrative Law Judge

3301Division of Administrative Hearings

3305The DeSoto Building

33081230 Apalachee Parkway

3311Tallahassee, Florida 32399-3060

3314(850) 488-9675 SUNCOM 278-9675

3318Fax Filing (850) 921-6847

3322www.doah.state.fl.us

3323Filed with the Clerk of the

3329Division of Administrative Hearings

3333this 29th day of August, 2008.

3339ENDNOTE

33401/ Unless otherwise indicated, all references to Florida

3348Statutes are to the 2005 version.

3354COPIES FURNISHED :

3357Tino Gonzalez, Esquire

33601600 Sarno Road, Suite 1

3365Melbourne, Florida 32935

3368Scott A. Smothers, Esquire

3372Robert A. Crabill, Esquire

3376Wright, Fulford, Moorhead & Brown, P.A.

3382Post Office Box 2828

3386Orlando, Florida 32801-2828

3389Ned Luczynski, General Counsel

3393Department of Business and

3397Professional Regulation

3399Northwood Centre

34011940 North Monroe Street

3405Tallahassee, Florida 32399-0792

3408G. W. Harrell, Executive Director

3413Construction Industry Licensing Board

3417Department of Business and

3421Professional Regulation

3423Northwood Centre

34251940 North Monroe Street

3429Tallahassee, Florida 32399-0792

3432NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

3438All parties have the right to submit written exceptions within

344815 days from the date of this Recommended Order. Any exceptions

3459to this Recommended Order should be filed with the agency that

3470will issue the Final Order in this case.

Select the PDF icon to view the document.
PDF
Date
Proceedings
PDF:
Date: 08/29/2008
Proceedings: Recommended Order
PDF:
Date: 08/29/2008
Proceedings: Recommended Order cover letter identifying the hearing record referred to the Agency.
PDF:
Date: 08/29/2008
Proceedings: Recommended Order (hearing held June 20, 2008). CASE CLOSED.
PDF:
Date: 07/29/2008
Proceedings: Petitioner`s Proposed Recommended Order filed.
Date: 07/21/2008
Proceedings: Transcript (Volumes I, II) filed.
Date: 06/20/2008
Proceedings: CASE STATUS: Hearing Held.
PDF:
Date: 06/19/2008
Proceedings: Unilateral Pre-hearing Stipulation filed.
PDF:
Date: 06/17/2008
Proceedings: Unilateral Pre-hearing Stipulation filed.
PDF:
Date: 04/25/2008
Proceedings: Order Granting Continuance and Re-scheduling Hearing (hearing set for June 20, 2008; 9:00 a.m.; Viera, FL).
PDF:
Date: 04/21/2008
Proceedings: Motion to Continue Hearing filed.
PDF:
Date: 04/18/2008
Proceedings: Amended Notice of Unavailability filed.
PDF:
Date: 04/14/2008
Proceedings: Order of Pre-hearing Instructions.
PDF:
Date: 04/14/2008
Proceedings: Notice of Hearing (hearing set for May 8, 2008; 9:00 a.m.; Viera, FL).
PDF:
Date: 04/03/2008
Proceedings: Joint Response on Hearing Location, Date, and Time filed.
PDF:
Date: 03/24/2008
Proceedings: Order Granting Motion to Re-open Case.
PDF:
Date: 03/20/2008
Proceedings: Motion to Re-open filed. (FORMERLY DOAH CASE NO. 07-5784PL)
PDF:
Date: 12/26/2007
Proceedings: Administrative Complaint filed.
PDF:
Date: 12/26/2007
Proceedings: Election of Rights filed.
PDF:
Date: 12/26/2007
Proceedings: Referral Letter filed.

Case Information

Judge:
SUSAN BELYEU KIRKLAND
Date Filed:
03/21/2008
Date Assignment:
03/21/2008
Last Docket Entry:
08/29/2008
Location:
Viera, Florida
District:
Northern
Agency:
Department of Business and Professional Regulation
Suffix:
PL
 

Counsels

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Related Florida Statute(s) (5):

Related Florida Rule(s) (1):