STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

STATE OF FLORIDA, FLORIDA )

CONSTRUCTION INDUSTRY )

LICENSING BOARD, )

)

Petitioner, )

)

vs. ) CASE NO. 79-2173

) TOMAS PEREZ, d/b/a LIFETIME ) CHEMICALS OF AMERICA, INC., )

)

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 case on March 13, 1980, in Fort Myers, Florida.

APPEARANCES

For Petitioner: Barry Sinoff, Esquire

2400 Independent Square

Jacksonville, Florida 32202

For Respondent: Tomas Perez, in Proper Person

2395 West 12th Avenue Hialeah, Florida 33010

Appearing on Michael Harold Arfaras, Salesman Behalif of Lifetime Chemicals of America, Inc.

Lifetime Chemicals 820 Southwest 20th Avenue of America, Inc. Miami, Florida 33135

ISSUE

At issue herein is whether or not the Respondent/Licensee, Tomas Perez, d/b/a Lifetime Chemicals of America, Inc. (Lifetime), engaged in conduct which will be set forth hereinafter in detail, which warrants the Florida Construction Industry Licensing Board (Board) to take disciplinary action respecting his license and to impose an administrative fine based on said alleged conduct.

FINDINGS OF FACT

Based upon my observation of the witnesses and their demeanor while testifying, the arguments of counsel and the entire record compiled herein, the following relevant facts are found.

1. Tomas Perez, d/b/a Lifetime Chemicals of America, Inc. (Respondent), is a certified general contractor who holds license No. CGCA 04170, which is

   active. On September 24, 1975, Mr. Perez used his license to qualify Lifetime Chemicals of America, Inc., as the entity through which he would conduct his business activities (Petitioner's Exhibit 1). On August 15, 1978, Lifetime Chemicals of America, Inc. , entered into an agreement with James Laughery of Fort Myers, Florida, for a franchise agreement to use Lifetime's license in the immediate area of Fort Myers, Florida (Petitioner's Exhibit 5). That agreement provides, among other things, that Respondent Lifetime authorized James Laughery to use its license in the Fort Myers area for a fee of $50.00 per job or

   $1,500.00. The agreement does not provide, nor was any evidence offered to establish that Respondent Perez played any supervisory or managing role in agent Laughery's contracting activities in the Fort Myers area.

   
   

2. During October of 1978, Mr. Andrew Szarfran entered into an agreement with Respondent's agent, Laughery, to perform certain roofing repairs to his residence for the sum of $1,000.00. Mr. Szarfran paid Laughery $500.00 and Laughery abandoned the project prior to completion (Testimony of Szarfran and Petitioner's Composite Exhibit 4). Mr. Szarfran engaged the services of another contractor to complete the project.

   
   

3. On May 17, 1979, the Lee County Construction Board reviewed a complaint filed against Respondent by the Szarfrans. Based on that review, the Lee County Construction Board revoked Respondent's licensing privileges in the county at its June, 1979, meeting (Petitioner's Exhibits 3 and 4 and testimony of witnesses Richard M. McDole and Maxine Allred, Administrative Director of Court Enforcement and Permit Clerk, respectively, for Lee County).

   
   

4. On or about October 17, 1978, Respondent's agent, Laughery, also entered into an agreement with Mr. and Mrs. Arthur Swanson for the erection of aluminum siding to the exterior walls of their residence for a full price of

   $5,000.00. The Swansons gave Respondent's agent, Laughery, a downpayment of

   $2,500.00 and agent Laughery abandoned the project prior to the commencement of any work (Petitioner's Exhibits 7 and 8 and testimony of Mrs. Swanson).

   
   

5. Richard Newmes, the chief inspector for building and zoning, Cafe Coral, Florida, testified that the Construction Industry Licensing Board for Cape Coral, Florida, revoked Respondent's contractor license on January 17, 1979, based on his violation of Cape Coral Code Section 5-1/2 - 21(J), to wit: "Failure to make good faulty workmanship or materials performed or installed to evade performance of the contract or specifications as agreed upon." (Petitioner's Exhibit 9.)

   
   

6. On or about January 4, 1979, Lifetime Chemicals of America, Inc., became aware of its agent, James Laughery's mismanagement of funds and his failure to honor contractual obligations he had entered in the Fort Myers area. Respondent and its agent Laughery therefore entered into an agreement which rendered the franchise agreement between the parties null and void. Agent Laughery, in said agreement, promised to pay, from his commissions due, monies owed to Lifetime Chemicals, Inc., which apparently was brought about due to the restitution that Lifetime Chemicals had made to customers whom agent Laughery had defaulted.

   
   

7. As mitigating evidence, it was noted that the Respondent, Tomas Perez, was not party to or familiar with the activities and/or difficulties that the designated agent for Lifetime Chemicals of America, Inc., James Laughery, was encountering in the Fort Myers vicinity before early January, 1979. As soon as Respondent became aware of Laughery's problems, steps were immediately taken to

   halt such acts insofar as they related to Respondent (Testimony of Tomas Perez and Michael Arfaras).

   
   

   CONCLUSIONS OF LAW

   
   

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

   
   

9. The parties were duly noticed pursuant to the notice provision of Chapter 120, Florida Statutes.

   
   

10. The authority of the Petitioner is derived from Chapter 468, Florida Statutes, and Rule Chapter 21E-5, Florida Administrative Code.

    
    

11. Based on the foregoing findings of fact, competent and substantial evidence was offered to establish that the Respondent engaged in conduct which establishes that he (Perez), through its agent, Laughery, aided and abetted an uncertified or unregistered person to violate Section 468.112, Florida Statutes, as more particularly set forth in Section 468.112(2)(b), Florida Statutes; that such conduct included a diversion of funds in violation of Section 468.112(2)(e), Florida Statutes; that he (Respondent) has been the subject of disciplinary action by the construction licensing boards of Cape Coral and Lee County, Florida, in violation of Section 468.112(2)(f), Florida Statutes, and finally that Respondent, based on the foregoing violations, materially violated the provisions of Section 468.112(2)(g), Florida Statutes.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law and the mitigating evidence which revealed that although the Petitioner is authorized and in fact holds the qualifier license of a registered entity responsible for the acts of its agents, in view of the undisputed evidence which reflects that neither Respondent Perez or Respondent Lifetime Chemicals of America, Inc., in any manner benefited from the acts of its agents and in fact attempted to thwart the illegal acts of its agent as soon as such became known, it is hereby

RECOMMENDED:

l. That the Respondent, Tomas Perez's Certified General Contractor's license, CGCA 04170, be placed on probation for a period of one (1) year.

2. That the Respondents, Tomas Perez and Lifetime Chemicals of America, Inc. , be issued a written letter of reprimand.

RECOMMENDED this 24th day of April, 1980, in Tallahassee, Florida.

JAMES E. BRADWELL, 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 24th day of April, 1980.

COPIES FURNISHED:

Barry Sinoff, Esquire 2400 Independent Square

Jacksonville, Florida 32202

Tomas Perez

2395 West 12th Avenue Hialeah, Florida 33010

Michael Harold Arfaras 820 S.W. 20th Avenue Miami, Florida 33135

Mr. J. K. Linnan Executive Director

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. CASE NO. 79-2173

THOMAS PEREZ, CGCA 04170

Respondent.

/

FINAL ORDER

FLORIDA CONSTRUCTION INDUSTRY LICENSING BOARD

This matter came for final action by the Florida Construction Industry Licensing Board on August 15, 1980, in Ft. Myers, Florida.

The Board, having reviewed the complete record in this proceeding, hereby adopts the Findings of Fact and Conclusions of Law of the Hearing Officer and

they are incorporated by reference in this Final Order. However, the Board hereby rejects the Recommendation of the Hearing Officer. Said Recommendation fails to consider the seriousness of the offense as well as the harm to members of the public as reflected in the record of this proceeding. Moreover, the Board finds that the mitigating factors noted by the Hearing Officer with respect to the intent of the Respondent do not serve to outweigh the grave consequences of Respondent's violations of the statutes. THEREFORE

IT IS ORDERED AND ADJUDGED that the certified general contractor's license of Respondent Thomas Perez, CGCA 04170, be and is hereby revoked, and shall not be considered for reissue until proof of compliance with the Cape Coral Construction Industry Licensing Board and the Lee County Construction Board, and proof of restitution to the consumers named in the Administrative Complaint are furnished to the Florida Construction Industry Licensing Board. It is further ordered that Respondent pay an administrative fine of $500.00

DONE AND ORDERED this 15th day of August, 1980.

FLORIDA CONSTRUCTION INDUSTRY LICENSING BOARD

BY: JOHN HENRY JONES

CHAIRMAN

Docket for Case No: 79-002173

Orders for Case No: 79-002173