STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

FLORIDA CONSTRUCTION INDUSTRY ) LICENSING BOARD, )

)

Petitioner, )

)

vs. ) CASE NO. 76-782

)

ROBERT E. FIELD )

d/b/a REFIELD CONSTRUCTION, )

)

Respondent. )

)

RECOMMENDED ORDER

This cause came on for hearing before the undersigned on July 21, 1976, in West Palm Beach, Florida. The parties were noticed according to the notice provisions of Chapter 120 and all parties were afforded the right to be represented by counsel, to present oral argument and to cross examine witnesses and to introduce documentary evidence, rebuttal and/or argument.

APPEARANCES

For Petitioner: Barry Sinoff, Esquire

1010 Blackstone Building

Jacksonville, Florida 32202

For Respondent: John W. Spinner, Esquire

501 East Atlantic Avenue Delray Beach, Florida 33444

1. The Florida Construction Industry Licensing Board (hereinafter Board) filed an administrative complaint against licensee Robert E. Field, d/b/a/ Refield Construction Company who holds certified general contractor's license no. CG C004382. The Board seeks to suspend the referenced license and the licensee's right to practice thereunder based on the fact that on May 27, 1975, the licensee was arrested as alleged in the administrative complaint, by the police department of Boynton Beach, Florida for aiding or abetting an unlicensed person to evade the provisions of Chapter 5A of the Municipal Code of the City of Boynton Beach, or that licensee allowed to be used by an unlicensed person or act as an agent, partner or associate of an unlicensed person with the intent to evade the provisions of that chapter, to wit: Robert E. Field, Jr., d/b/a Refield Construction Company, Inc., did obtain a permit to construct a patio, and that said permit was used by Ralph Robert Burdge, d/b/a Leisure Masonry, which entity has no general contractor's license, and that Leisure Masonry did on March 6, 1975, construct a patio under that permit on the premises of Mr. Wilburn House, located at 1011 Southwest 18th Street, Boynton Beach, Florida. The complaint alleges further that the licensee was found guilty of said charge to which he was fined $150 for the cited violation. The Respondent, in its answer, admitted that he obtained a permit to construct a patio for the premises above referred to but denied that said permit was used by Ralph Robert Burdge;

   d/b/a Leisure Masonry, and further denied that Leisure Masonry constructed the patio (as an entity) authorized by said permit on March 6, 1975. Respondent's answer also alleges that Burdge is an employee of the Respondent (licensee) and that he (Burdge) did partake in the construction of said patio. Further, Respondent admits that on October 24, 1975, he was found guilty of violating the Boynton Beach Municipal Code for which he was fined $150 as a result of that verdict. 1/

   
   

2. Robert E. Field, is a state certified licensed general contractor and has been for approximately five years. During this time, he has built approximately 70 single family residences and/or small complexes. He requested property improvement approval from the Leisure Village Community Association, Inc., which is an association which approves all improvements to homes within the Leisure Village Community. Said approval was granted on March 5, 1975. See Respondent's Exhibit 2, incorporated by reference. The work in question involved the erection of a 20' X 10' front porch made of concrete with concrete decorator blocks. Licensee testified that he utilized the services of employees who had previously operated under the trade name of Leisure Masonry. The licensee applied for a permit from the City of Boynton Beach, Florida, on March 6, 1975 and his employees, Robert Burdge and Dennis Watkins performed the work in question at the Williams' home.

   
   

3. Section 5A-3 of the Boynton Beach Code is a code provision relating to situations in which a contractor's license is not required. The pertinent portion of that code section is 5A-3(f) which states:

   
   

   Any person who individually performs labor for another, receiving only the compensation of an hourly wage.

   
   

4. The licensee testified that when the job in question was bid on and he was awarded it, he obtained a permit and sent employees Burdge and Watkins to perform the work. They received the proceeds from the job, ordered the materials and issued him a check for his portion of the net proceeds which amounted to, as best as can be determined by the record, approximately eighteen dollars ($18). Based on the evidence presented, the Municipal Judge for the City of Boynton Beach, Florida, by submission of a letter received into evidence, indicated that the court in adjudicating Mr. Field guilty, applied the definition of "employee" in the ordinance under which the Defendant was convicted. The court determined that the individuals who were purportedly employees of Mr. Field's corporation, Refield Construction, Inc., did not meet the ordinance definition of "employee" since they, according to the evidence, were not being paid an hourly wage. The facts in this case also reveal that the licensee submitted IRS reporting forms for the employees' wages in question and that the problem, as testified by the licensee, is that the compliance inspector for Boynton Beach, and' the licensee had a personality clash which is the basis of this action.

   
   

5. Be that as it may, it is clear from the evidence that the employees in question were not being paid an hourly wage as defined by the Code provision for which the licensee was adjudicated guilty of violating. Documents submitted into evidence indicates that the licensee received proceeds from the job to reimburse the contractor for profit and overhead expenses for the Leisure Village job. The licensee admits that it was not a good business practice for him to utilize the procedure that he employed in completing the job in question however it was used in this particular case. The licensee no longer operates under this procedure and indicated at the hearing that he made no overt effort

   to evade any code violations or for that matter, violations of the Florida Construction Industry Licensing Board's rules and regulations.

   
   

6. Based on all of these facts and the entire record including the fact that the violation is at best, a technical violation, the undersigned is of the opinion that the penalty of suspension is not warranted in this case. I shall therefore recommend that the licensee be issued an oral reprimand for having engaged in the procedure utilized in this case. I shall so recommend.

   
   

   CONCLUSIONS OF LAW

   
   

7. The parties to this proceeding were noticed pursuant to the notice provisions of Chapter 120, Florida Statutes.

   
   

8. The authority of the Board is derived from Chapter 468, Florida Statutes.

   
   

9. The licensee permitted Ralph Robert Burdge to construct a patio on the premises of Mr. Wilburn under a permit that he obtained. The licensee, by not paying Burdge and Watkins an hourly wage, permitted unlicensed persons to evade the provisions of Chapter 5A of the Municipal Code of the City of Boynton Beach, Florida.

RECOMMENDATIONS

Based on the above facts and conclusions of law, I recommend that the licensee be issued an oral reprimand.

DONE and ENTERED this 20th day of September, 1976, in Tallahassee, Florida.

JAMES E. BRADWELL

Hearing Officer

Division of Administrative Hearings

530 Carlton Building Tallahassee, Florida 32304 (904) 488-9675

ENDNOTE

1/ During the course of the hearing, licensee indicated that an appeal was filed in the Circuit Court of Palm Beach County, Florida, contesting a portion of the ordinance in question, alleging that it is unvalid, unconstitutional and unenforceable and thus Defendant should be granted a new trial or in the alternative that the judgement should be set aside for said reasons. That appeal was taken on December 5, 1975, see Hearing Officer's Exhibit #1 which was submitted subsequent to the close of the hearing with the permission at the hearing off the Board's counsel.

COPIES FURNISHED:

Barry Sinoff, Esquire John W. Spinner, Esquire 1010 Blackstone Building 501 East Atlantic Avenue Jacksonville, Florida 32202 Delray Beach, Florida 33444

================================================================= AGENCY FINAL ORDER

================================================================= BEFORE THE FLORIDA CONSTRUCTION INDUSTRY LICENSING BOARD

FLORIDA CONSTRUCTION INDUSTRY LICENSING BOARD,

Petitioner,

vs. CASE NO. 76-782

ROBERT E. FIELD dba REFIELD CONSTRUCTION, CG C004382,

1891 N. Seacrest Blvd., Boynton Beach, Fla. 33435

Respondent.

/

FINAL ORDER OF FLORIDA CONSTRUCTION INDUSTRY LICENSING BOARD

This cause came before the FLORIDA CONSTRUCTION INDUSTRY LICENSING BOARD at its regular meeting on November 5, 1976.

Respondent was sent the Hearing Officer's findings and recommendations and was given at least 10 days to submit written exceptions to the recommended order. Respondent was notified of the meeting so that respondent or counsel might appear before the Board. Respondent did not appear.

The FLORIDA CONSTRUCTION INDUSTRY LICENSING BOARD on November 5, 1976 after

consideration of the findings of fact and the recommendations of the recommended order, by motion duly made and seconded voted to suspend respondent's license for the period of one year. It is therefore,

ORDERED that the certification of respondent ROBERT E. FIELD, Number CG C004302 be and is hereby suspended for a period of one year.

Respondent is hereby notified that he has 30 days after the receipt of this final order to appeal pursuant to Chapter 120, Florida Statutes, and the Florida Appellate Rules.

Harold Haimowitz President

FLORIDA CONSTRUCTION INDUSTRY LICENSING BOARD

Docket for Case No: 76-000782

Orders for Case No: 76-000782