STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

FLORIDA CONSTRUCTION INDUSTRY ) LICENSING BOARD, )

)

Petitioner, )

)

vs. ) CASE NO. 77-785

)

RONALD PINTACUDA, )

)

Respondent. )

)

RECOMMENDED ORDER

This case was presented by agreement of the parties upon the transcript of the proceedings before the Palm Beach County Construction Industry Licensing Board. Due to difficulties in obtaining the original transcript and the exhibits considered by the Board, the Recommended Order in this cause has been unduly delayed. Although it is apparent from the transcript that the exhibits presented to the Hearing Officer are not complete, in consideration of the delays in obtaining the record presented and the correspondence relative to completion of the record, the record is herewith closed.

APPEARANCES

For Petitioner: Barry Sinoff, Esquire

1010 Blackstone Building

Jacksonville, Florida 32202

For Respondent: Alan J. Ciklin, Esquire

Post Office Box 3704 Professional Plaza

West Palm Beach, Florida 33402 ISSUE

The Florida Board's Administrative complaint alleged Pintacuda had violated Section 468.112(2)(b) and (f) by aiding and abetting any uncertified or unlicensed person to evade any action having been taken by a county.

FINDINGS OF FACT

1. The record presented consists of a transcript of the proceedings before the Palm Beach County Construction Industry Licensing Board considering allegations against Ronald Pintacuda and a portion of the exhibits presented to that Board during the proceedings. The record does not contain the Administrative Complaint or other charging documents upon which the Palm Beach County Construction Industry Licensing Board proceeded against Ronald Pintacuda. The allegations against Pintacuda are summed up in a statement by Mr. Flynn, prosecuting attorney for the Board on page 6 of the transcript. The prime contention of the prosecution and the proceeding before the local board was that

   Pintacuda was guilty of aiding and abetting an unlicensed company to avoid the provisions of the building code by virtue of a specific agreement referred to throughout the transcript but which was not made a part of the evidentiary record presented to the Hearing Officer. Mr. Ciklin, counsel for Mr. Pintacuda, refers on page 5 to three charges outstanding against Pintacuda before the local board, and in his summation at page 38 outlines these as follows:

   
   

   1. Willful and deliberate disregard of the applicable building codes or law;

   2. Combining or conspiring with an uncertified or unregistered person (by allowing one's certificate or registration to be used by any uncertified or unregistered person with the intent to evade the provisions of this part); and

   3. Acting in the capacity of a contractor under someone else's certificate except

      for the name of the certificate holder.

      
      

2. In the absence of a charging document or a statement of charges having been read into the record, Mr. Ciklin's outline of the charges considered by the local board against Ronald Pintacuda are taken as true and accurate.

   
   

3. The critical element in consideration of this case is the time sequence of the events. The sequence of events between Ronald Pintacuda and Ralph Howell began in 1974, when Howell approached Pintacuda about forming a construction business. C Pinta & Howell, Inc., was created in a corporate reorganization from an inactive corporation, Martin & Pinta, Inc., in January, 1975. Martin & Pinta, Inc., was a corporation formed by John Martin and Ronald Pintacuda in which John Martin was president and Ronald Pintacuda vice-president. John Martin, a Canadian, ceased participation in the business upon his return to Canada, and the corporation went into an inactive status. In January, 1975, Ralph Howell approached Ronald Pintacuda about forming a construction corporation. This resulted in the formation of Pinta & Howell, Inc. Because of domestic problems, Ralph Howell's father, Alexander Howell, served as president of Pinta and Howell, Inc. Ralph Howell was construction superintendent of this corporation and was the primary manager of the Howell interests in the corporation.

   
   

4. Pintacuda participated actively in the business affairs of Pinta & Howell, Inc., from January, 1975, until December, 1975. Although it is not explicitly stated in the transcript, it is apparent that Pintacuda decided to cease his active role in Pinta & Howell, Inc., in December, 1975. At that time Pintacuda entered an agreement with Alexander Howell which was the basis of an allegation of combining or conspiring with an uncertified or unregistered person by allowing one's certificate or registration to be used by any uncertified or unregistered person with intent to evade the provisions of the law. Although this agreement is not a part of the exhibits presented to the Hearing Officer, a portion of that agreement was read into the record by Mr. Pintacuda at page 29 of the transcript. That portion of the agreement provided as follows:

   
   

   Agreement between Ronald Pintacuda and Alexander Howell--That Ronald Pintacuda and Alexander Howell, officers of Howell & Pinta, Inc. stipulate that Howell & Pinta, Inc. shall not conduct any business unless both parties agree in writing to

   such business. This includes, but is not limited to, the signing of any contracts or financial obligations.

   
   

5. The basis of the complaints upon which the prosecution of Pintacuda was based, arose in early 1970, when Ralph and Gerald Howell accepted contracts in behalf of Tri-County Marine Construction, Inc., and pulled permits from local authorities in the name of Pinta & Howell, Inc. In addition, Ronald Pintacuda is charged with obtaining four building permits in the name of Pinta & Howell, Inc., for construction contracts taken by Tri-County Marine Construction, Inc. (Tri-County Marine).

   
   

6. After the formation of Pinta & Howell, Inc., Ralph Howell who was an officer in Tri-County Marine suggested to Pintacuda that Tri-County Marine be made, an affiliate or subsidiary of Pinta & Howell, Inc. Pintacuda concurred in this, and Howell had the advertising, letterhead, contracts, and yellow page advertisement for Tri-County Marine altered to reflect that Tri-County Marine was an affiliate or subsidiary of Pinta & Howell, Inc. Documentary evidence concerning the corporate status of Pinta & Howell, Inc., and Tri-County Marine which was presented to the local board was not made a part of the exhibits presented to the Hearing Officer. However, testimony of witnesses at the proceeding based upon those exhibits indicate that there was no record in the Secretary of State's office of any corporate interrelationship between Pinta & Howell, Inc., and Tri-County Marine, Inc. The testimony of Pintacuda and the contracts presented in support of the Board's case do show that Tri-County Marine represented itself to the public and functioned as an affiliate or subsidiary of Pinta & Howell, Inc. This affiliation was even recognized by the Board's prosecuting attorney, Mr. Flynn, at page 6 when he stated ". . . Tri- County Marine Construction, Inc. is an affiliate of Pinta & Howell, Inc."

   
   

7. Initially, efforts in January, 1976, to contact Pintacuda by local Board authorities and investigators of the Florida Construction Industry Licensing Board were unsuccessful. From the testimony of Mr. Verner, investigator for the Construction Industry Licensing Board, many telephone and personal messages left with Mr. Ralph Howell and his secretary were not passed on to Mr. Pintacuda. When Mr. Pintacuda was eventually contacted by Mr. Verner, Mr. Pintacuda was cooperative, forthright, and took immediate steps to deregister as qualifier for Pinta & Howell, Inc., in an effort to prevent further abuses by Ralph and Gerald Howell.

   
   

8. The Palm Beach County Construction Industry Licensing Board did not find Ronald Pintacuda guilty of any of the three allegations charged. The action to revoke the license of Ronald Pintacuda was on a motion by Mr. Barrett at page 41 of the transcript which does not recite a finding regarding Pintacuda's guilt of any of the allegations against him. It was this motion which was seconded and passed by the Board. The local board therefore revoked the license of Ronald Pintacuda without a finding of guilt on any of the complaints against him.

   
   

   CONCLUSIONS OF LAW

   
   

9. The Florida Construction Industry Licensing Board has charged Ronald Pintacuda with aiding and abetting an unlicensed contractor to evade any provision of the Construction Industry Licensing Law contrary to the provisions of Section 468.112(2)(b) and with having had disciplinary action taken against him by any municipality, city, or county contrary to the provisions of Section 468.112(2)(f), Florida Statutes.

10. With regard to the alleged violation that disciplinary action was taken against Ronald Pintacuda by the Palm Beach County Construction Industry Licensing Board, as stated above, the action taken by that Board was not based upon a finding of guilt of any of the three allegations against him. Further, the language of Mr. Barrett's motion upon which Pintacuda's license was revoked does not constitute any substantive offense under the state law.

    
    

11. Regarding the alleged allegation that Ronald Pintacuda aided or abetted an unlicensed contractor to evade the provisions of the Construction Industry Licensing Law, the evidence presented at the hearing fails to prove this allegation.

    
    

12. The evidence introduced indicates that Ronald Pintacuda did pull four construction permits in the name of Howell and Pinta, Inc., for construction undertaken upon contracts with Tri-County Marine Construction, Inc. However, the testimony and evidence presented shows that both Pintacuda and Howell conducted the business affairs of Pinta & Howell, Inc., and Tri-County Marine Construction, Inc., and acted as though Tri-County Marine Construction, Inc., were a subsidiary or affiliate of Pinta & Howell, Inc. While Tri-County Marine Construction, Inc., may not have been legally an affiliate of Pinta & Howell, Inc., the offense of aiding and abetting is one requiring specific criminal intent. The fact that the officers of the corporations conducted their corporate affairs in a manner consistent with the affiliation of Tri-County Marine Construction, Inc., with Pinta & Howell, Inc., shows that Pintacuda's pulling these permits in the name of Pinta & Howell, Inc., was not intended to aid or abet Tri-County Marine Construction, Inc., in evading the provisions of the Florida Construction Licensing Law.

    
    

13. Regarding the agreement between Ronald Pintacuda and Alexander Howell, the actual document was not presented to the Hearing Officer. From the testimony presented at the hearing, the agreement was not with Ralph Howell as alleged in the Board's complaint, but with his father, Alexander Howell. Further, no evidence was presented regarding what services Pintacuda was to perform for the corporation in return for the receipt of $250 per month. There is no statutory prohibition against employment of a qualified person by a corporation. The testimony does indicate that Ronald Pintacuda was an officer of Pinta & Howell, Inc., and was the qualifier for this corporation until June of 1976, therefore, the corporation was legally qualified to pull permits. The testimony regarding the agreement indicates that Pintacuda retained the right to approve all business conducted by Pinta & Howell, Inc., between December of 1975, and June of 1976. Testimony in the record also shows that Ronald Pintacuda met and discussed the plans with the architect for the construction for which he pulled four permits.

    
    

14. Section 468.107(2) provides that the licensed individual qualifying a partnership, corporation, business, trust or other legal entity, will be legally qualified to act for the business organization in all matters connected with its contracting business and has authority to supervise construction undertaken by such business organization. There is no evidence in the record that Ronald Pintacuda lacked the authority to supervise the construction or was legally unqualified to act for the business organization. He met with the architect and discussed the jobs, and he absolute veto power on work being undertaken. The testimony in the record regarding the construction for which these four permits were pulled indicated that they were all successfully completed without any liens against them.

15. While there is substantial testimony indicating that other construction was undertaken by Tri-County Marine Construction, Inc., under permits pulled in the name of Pinta & Howell, Inc., by Ralph and Gerald Howell, there is no evidence that Ronald Pintacuda was aware that this occurred. Such actions were absolutely contrary to the agreement between Ronald Pintacuda and Alexander Howell. The Board's own investigator testified that Howell and his office staff did not pass his messages on to Pintacuda. This indicates that Howell sought to keep these activities a secret from Pintacuda, who when he learned of them, immediately took action to deregister and disqualify Pinta & Howell, Inc. Pintacuda cannot be held responsible in this proceeding for the violation by Ralph Howell and Gerald Howell of the written agreement which was secreted from him.

RECOMMENDATION

Based upon the foregoing findings of fact and conclusions of law and review of the proceedings before the Palm Beach County Construction Industry Licensing Board, the Hearing Officer recommends that no action be taken by the Florida Construction Industry Licensing Board against the license of Ronald Pintacuda.

DONE and ORDERED this 23rd day of February, 1978, in Tallahassee, Florida.

STEPHEN F. DEAN, Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304

(904) 488-9675

COPIES FURNISHED:

Barry Sinoff, Esquire 1010 Blackstone Building

Jacksonville, Florida 32202

Alan J. Ciklin, Esquire Post Office Box 3704 Professional Plaza

West Palm Beach, Florida 33402

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

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

FLORIDA CONSTRUCTION INDUSTRY LICENSING BOARD,

Petitioner,

vs. DIVISION OF ADMINISTRATIVE

HEARINGS, DOCKET NO. 77-785

RONALD PINTACUDA dba TRI-COUNTY MARINE CONSTRUCTION, INC., CG C005834, 6561

Katherine Road, West Palm Beach, Florida 33406,

Respondent.

/

FINAL ORDER OF

FLORIDA CONSTRUCTION INDUSTRY LICENSING BOARD

This cause came before the FLORIDA CONSTRUCTION INDUSTRY LICENSING BOARD at its regular meeting on August 4, 1978.

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 appear.

THE FLORIDA CONSTRUCTION INDUSTRY LICENSING BOARD on August 4, 1978, after

reviewing a complete transcript of the minutes of the Palm Beach County Construction Industry Licensing board, and after the Respondent stipulated and agreed to waive his right to appeal, by motion duly made and seconded, voted to suspend the certified general contractor's license of RONALD PINTACUDA for a period of one (1) year. It is therefore,

ORDERED that the certification of respondent RONALD PINTACUDA, Number CG C005834, be and is hereby suspended for period of one (1) year.

Dated this 10th day of August, 1978.

FLORIDA CONSTRUCTION INDUSTRY LICENSING BOARD

BY: JOHN HENRY JONES, PRESIDENT

Docket for Case No: 77-000785

Orders for Case No: 77-000785