STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

FLORIDA CONSTRUCTION INDUSTRY ) LICENSING BOARD, )

)

Petitioner, )

)

vs. ) CASE NO. 77-1442

)

STEPHEN J. BOROVINA, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, James E. Bradwell, held a public hearing in this cause on September 28, 1977, in West Palm Beach, Florida.

APPEARANCES

For Petitioner: Barry S. Sinoff, Esquire

1010 Blackstone Building

Jacksonville, Florida 32202

For Respondent: Stephen J. Borovina, Appearing Pro se

2347 Southeast Monroe Street Stuart, Florida 33494

ISSUE

The Florida Construction Industry Licensing Board, Petitioner, seeks to revoke the registered contractor's license of Stephen J. Borovina, Respondent, based on allegations, which will be set forth in detail hereafter, that he engaged in conduct violative of Chapter 468, Florida Statutes. The issue presented is whether or not the Respondent aided or abetted and/or knowingly combined or conspired with Mr. Howard North, an uncertified or unregistered contractor, to evade the provisions of Chapter 468.112(2)(b), and (c), Florida Statutes, by allowing North to use his certificate of registration without having any active participation in the operations, management, or control of North's operations. Based on the testimony adduced during the hearing and the exhibits received into evidence, I make the following:

FINDINGS OF FACT

1. The Respondent is a certified general contractor who holds license no. CGC007016, which is current and active. On or about July 25, 1976, Mr. and Mrs. Julius Csobor entered into a contract with Mr. and Mrs. Howard North for the construction of a home in Martin County, Florida, for a total price of $35,990. Neither Mr. or Mrs. North are certified or registered contractors in the State of Florida. (Petitioner's Composite Exhibit #2). Respondent applied for and was issued a permit by the Martin County Building Department to construct a

   residence for the Csobors at the same address stipulated in the contract between the Csobors and the Norths, i.e., Northwest 16th Street, Palm Lake Park, Florida. (Petitioner's Composite Exhibit #1). Howard North, a licensed masonry contractor for approximately nine (9) years was contacted by the Csobors through a sales representative from a local real estate firm. It appears from the evidence that North had previously constructed a "spec" house which the local realtor had sold and thus put the Csobors in contact with Mr. North when they were shown the "spec" house built by North. Evidence reveals that North contacted Borovina who agreed to pull the permit "if he could get some work from the job and could supervise the project". Having reached an agreement on this point, North purchased the lot to build the home for the Csobors and he orally contracted with the Respondent to, among other things, pull the permit, supervise construction, layout the home and do trim and carpentry work. North paid Respondent approximately $200 to layout the home for the Csobors. By the time that North had poured the slab and erected the subfloor, the Csobors became dissatisfied with his (North's) work and demanded that he leave the project.

   According to North, Respondent checked the progress of construction periodically. Prior to this hearing, the Csobors had never dealt with Respondent in any manner whatsoever. According to Csobor, North held himself out as a reputable building contractor.

   
   

2. A contractor is defined in relevant part as any person who, for compensation, undertakes to, or submits a bid to, or does himself or by others, construct, repair, etc. . . . real estate for others. . . Chapter 468.102(1), Florida Statutes. Applying this definition to the facts herein, it appears that the Respondent, at least in a literal sense, satisfied the requirements and obligations of a contractor, as defined in Chapter 468.102, Florida Statutes. Thus, he contracted with North to oversee and/or supervise the project for the Csobors which he fulfilled, according to the testimony of North. Said testimony was not refuted and thus I find that no effort was made by Respondent to evade any provision of Chapter 468, Florida Statutes. Accordingly, I shall recommend that the complaint filed herein be dismissed in its entirety.

   
   

   CONCLUSIONS OF LAW

   
   

3. The Division of Administrative Hearings has jurisdiction over the subject matter and the parties to this action. Chapter 120.57(1), Florida Statutes.

   
   

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

   
   

5. Insufficient evidence was adduced during the hearing herein to establish that the Respondent engaged in conduct violative of Chapter 468.112(2)(b) or (c), Florida Statutes, as alleged in the administrative complaint filed herein.

RECOMMENDATION

Based on the foregoing findings of fact and conclusions of law, it is hereby recommended that the complaint filed herein be dismissed in its entirety.

RECOMMENDED this 4th day of November, 1977, in Tallahassee, Florida.

JAMES E. BRADWELL

Hearing Officer

Division of Administrative Hearings

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

COPIES FURNISHED:

Barry S. Sinoff, Esquire 1010 Blackstone Building

Jacksonville, Florida 32202

Stephen J. Borovina

2347 Southeast Monroe Street Stuart, Florida 33494

1. J. Hoskinson, Jr.

   Chief Investigator

   Florida Construction Industry Licensing Board

   Post Office Box 8621 Jacksonville, Florida 32211

   
   

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

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

   FLORIDA CONSTRUCTION INDUSTRY LICENSING BOARD,

   
   

   Petitioner,

   
   

   vs. DIVISION OF ADMINISTRATIVE

   HEARINGS, DOCKET NO. 77-1442

   STEPHEN J. BOROVINA, CG C007016,

   2347 S. E. Monroe Street, Stuart, Florida 33494,

   
   

   Respondent.

   /

   
   

   This cause came before the FLORIDA CONSTRUCTION INDUSTRY LICENSING BOARD at its regular meeting on February 10, 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 not appear

   
   

   The FLORIDA CONSTRUCTION INDUSTRY LICENSING BOARD on February 10, 1978,

   after reviewing a complete transcript of the Administrative Hearing, by motion duly made and seconded voted to revoke the certified general contractor's license of STEPHEN J. BOROVINA. It is therefore,

   
   

   ORDERED that the certification of respondent STEPHEN J. BOROVINA, Number CG C007016, be and is hereby revoked.

   
   

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

   
   

   DATED this 13th day of February, 1978.

   
   

   FLORIDA CONSTRUCTION INDUSTRY LICENSING BOARD

   
   

   BY:

   JOHN HENRY JONES, President

   
   

   =================================================================

   SECOND AGENCY FINAL ORDER

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

   STEPHEN J. BOROVINA, CG C007016,

   
   

   Respondent/Appellant,

   
   

   vs. DIVISION OF ADMINISTRATIVE

   HEARINGS, DOCKET NO. 77-1442

   FLORIDA CONSTRUCTION INDUSTRY LICENSING BOARD,

   
   

   Petitioner/Appellee.

   /

   
   

   This cause came before the Florida Construction Industry Licensing Board at its regular meeting on August 3, 1979. The 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 3, 1979, after reviewing a complete transcript of the Administrative Hearing, by motion duly made and seconded, voted to revoke the certified general contractor's license of Stephen J. Borovina, No. CG C007016. On February 13, 1978, the certification of respondent, Stephen J. Borovina, No. CG C007016, was revoked by order of the Florida Construction Industry Licensing Board.

   
   

   On April 25, 1979, the District Court of Appeal of the State of Florida, Fourth District, in Case Number: 78-527, reversed the final order of the Florida Construction Industry Licensing Board. That Court remanded the above captioned case to the Board to further consider the matter and enter such order as it may be advised in conformity with Section 120.57(1)(b)(9), Florida Statutes (1977).

   
   

   In accordance with the decision of the Florida District Court of Appeal, Fourth District, the Board has reconsidered the above captioned matter and finds as follows:

   
   

   1. The Board rejects the recommended order as the agency's final order.

      
      

   2. The Board adopts the first paragraph of the hearing officer's finding of fact. The Board, however, rejects the findings of fact found in the second paragraph of the hearing officer's findings. The second paragraph states as follows:

      
      

      A contractor is defined in relevent(sic) part as any person who, for compensation, undertakes to, or submits a bid to, or does

      himself or by others, construct, repair, etc. real estate for others...Chapter 468.102(1), Florida Statutes. Applying this definition to the facts herein, it appears that the Respondent, at least in a literal sense, satisfied the requirements and obligations

      of a contractor, as defined in Chapter 468.102, Florida Statutes. Thus, he contracted with North to oversee and/or supervise the project for the Csobors which he fulfilled, according to the testimony of North. Said testimony was not refuted and thus I find that no effort was made by Respondent to evade any provision of Chapter 468, Florida Statutes. Accordingly, I shall recommend that the complaint filed herein be dismissed in its entirety.

      The findings of fact found in the above-quoted paragraph were not based upon competent substantial evidence. The competent substantial evidence supports a finding that the respondent, Stephen J. Borovina, did not supervise the project and that Borovina evaded the provisions of Chapter 468, Florida Statutes. The following evidence supports the Board's position: There was no written agreement entered into between Howard North and the respondent which indicated that the respondent was to supervise the construction of the Csobors' house (T- 14); It was conceded at the hearing that the only subcontractors or draftmen who worked on the Csobors' house were contracted solely by Howard North and they had no contract whatsoever with the respondent (T-19, 25); The respondent never advised or informed Mr. and Mrs. Csobor that he was the contractor on the job. (T-51); At all times during the act of construction of the house, Mr. and Mrs.

      Csobor were under the impression that Howard North was the contractor (T-44-51).

      
      

      It is, therefore, ORDERED:

      1. That the certification of respondent, Stephen J. Borovina, Number CG 0007016, be and is hereby revoked.

         
         

      2. Respondent is hereby notified that he has thirty (30) days after the date of the Final Order to appeal pursuant to Chapter 120, Florida Statutes, and the Florida Appellate Rules.

Dated this 3rd day of August, 1979.

FLORIDA CONSTRUCTION INDUSTRY LICENSING BOARD

BY:

JOHN HENRY JONES, President

Docket for Case No: 77-001442

Orders for Case No: 77-001442