STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF PROFESSIONAL ) REGULATION, FLORIDA CONSTRUCTION ) INDUSTRY LICENSING BOARD, )

)

Petitioner, )

)

vs. ) CASE NO. 81-2194

)

ROGER S. WILLIAMS, )

)

Respondent. )

) DEPARTMENT OF PROFESSIONAL ) REGULATION, FLORIDA CONSTRUCTION ) INDUSTRY LICENSING BOARD, )

)

Petitioner, )

)

vs. ) CASE NO. 81-2375

)

FREDERICK L. SCHREINER, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was held in the above cases before the Division of Administrative Hearings by its duly designated Hearing Officer, DONALD R. ALEXANDER, on April 7, 1982, in Melbourne, Florida.

APPEARANCES

For Petitioner: John S. Kalil, Esquire and

Barry S. Sinoff, Esquire 2400 Independent Square One Independent Drive

Jacksonville, Florida 32202

For Respondents: Thomas E. Shine, Esquire

Post Office Box 1293 Melbourne, Florida 32925

BACKGROUND

By Administrative Complaint dated August 3, 1981, Petitioner, Department of Professional Regulation, Construction Industry Licensing board, has charged that Respondent, Roger S. Williams, a registered building contractor, violated Subsections 489.129(1)(d), (g), (h), (j) and (m), Florida Statutes, for which disciplinary action against his license should be taken. Specifically, it is alleged that Williams: (1) acted as a contractor under a name other than the

one under which he was registered [s. 489.129(k)(g)] and failed to comply in a material respect with the provisions of Chapter 489 by failing to properly qualify the company under whose name he was performing contracting services [s. 489.129(1)(j)], (2) failed to obtain a local certificate of competency in Brevard County before performing a contract [s. 489.129(1)(d)], (3) was guilty of misconduct, i.e. poor workmanship, in the performance of contracting [s.

489.129(1)(m)], (4) falsely held out that a company he owned was a licensed contractor [s. 489.129(1)(j)], and (5) failed to place his certificate number on a contract [s. 489.129(1)(j)].

By Administrative Complaint filed March 26, 1981, Petitioner has charged that Respondent, Frederick L. Schreiner, a certified general contractor, violated Subsections 489.119(2) and (3) and 489.129(1((d)(e) and (j), Florida Statutes, in the following respects. First, it is alleged that Schreiner failed to qualify a business organization in violation of Subsections 489.119(2) and (3). Next, he is charged with aiding or abetting an uncertified or unlicensed person to violate a provision of the act in contravention of Subsection 489.129(1)(e). Finally, it is charged that Respondent violated Subsections 489.129(1)(d) and (j) by willfully and deliberately violating a state law and by failing to comply with Subsections 489.119(2) and (3)/

Respondents disputed the allegations and requested formal hearings pursuant to the provisions of Subsection 120.57(1), Florida Statutes. Case Nos. 81-2194 and 81-2375 were transmitted to the Division of Administrative Hearings by Petitioner on September 7 and 23, 1981, respectively, with a request that a Hearing Officer be assigned to conduct a hearing. Thereafter, Notices of Hearing were issued scheduling final hearings on November 3 and 10, 1981, in Melbourne, Florida. At the request of the parties, the matters were consolidated and rescheduled for final hearing on December 3, 1981, in Melbourne, Florida. Because the parties failed to file a prehearing stipulation as required by the undersigned, the final hearing was cancelled and rescheduled to April 7, 1982, at the same location.

At the final hearing Petitioner called Jack Oleksy, Paul A. Olson, chief building official for the City of Palm Bay, and Roger Cloutier, building inspector for the City of Palm Bay, as its witnesses and offered Petitioner's Exhibits 1-14, each of which was received into evidence. Respondents testified on their own behalf, presented the testimony of Williard A. Darby and Paul Capps, and offered Respondents' Exhibits 1-6 and 8-11, each of which was received into evidence. 1/

The transcript of hearing (two volumes) was filed on May 24, 1982.

Proposed findings of fact and conclusions of law were filed by Petitioner on June 7, 1982 and have been considered in the preparation on June 7, 1982 and have been considered in the preparation of this order. 2/ Proposed findings of fact not included in this order were considered irrelevant to the issues, immaterial to the result reached, or not supported by competent and substantial evidence. At the conclusion of the hearing, the parties waived the requirement in Rule 28-5.402, Florida Administrative Code, that a recommended order be entered within 30 days after receipt of the transcript of hearing.

The issue herein is whether Respondents should be disciplined for the alleged violations set forth in the Administrative Complaints.

Based upon the entire record, the following findings of fact are determined.:

FINDINGS OF FACT

1. At all times relevant hereto, Respondent, Roger S. Williams, held registered building contractor license number RB0026339 issued by Petitioner, Department of Professional Regulation, Construction Industry Licensing board, authorizing him to perform contracting under his individual name. Respondent, Frederick S. Schreiner, held certified general contractor's license numbers CG C004811 and CG CA04811 also issued by Petitioner authorizing him to perform contracting under his individual name and under Cape Development Corporation.

   
   

2. Williams served as president of Architectural Builders, Inc. (ABI), a development firm located in Palm Bay, Florida. Schreiner was engaged in the contracting business generally in the Brevard County, Florida area. He has done construction work for ABI and Williams for the past eight or nine years. ABI held no licenses from either the state or local governments.

   
   

3. On October 31, 1979, ABI entered into a construction contract with Jack and Stella Oleksy to construct a home at 842 South Becker Street, Palm Bay, Florida. The contract was approved by R. S. Williams as president of ABI.

   
   

4. At a later undisclosed date, Williams attempted to pull a City of Palm Bay building permit on behalf of ABI. Whether the City gave formal or informal approval at that point is not clear; in any event the construction of the home began shortly thereafter. Several weeks later the City's chief building official told Williams that because he did not have local competency with the City, he could not pull a permit for a job. Williams was also advised that a recent change in state law required ABI to qualify to do business if ABI intended to construct homes within the City.

   
   

5. When told that Frederick Schreiner would be constructing the home for ABI and that Schreiner held an appropriate license, the City official told Williams to have a construction contract executed between ABI and Schreiner to build the home. Thereafter, Schreiner pulled a permit for the job and posted it on the building site. He also gave the City a contract executed by he and ABI and which was dated November 29, 1979.

   
   

6. During the course of the construction, Schreiner visited the building site approximately six to eight times. The work was done entirely by subcontractors who had been used on other construction jobs by Williams and Schreiner. The subcontractors were paid by ABI but worked under the supervision of Schreiner. When the job was completed Williams signed the final payment affidavit on which it was indicated that Williams was the contractor on the job.

   
   

7. Oleksy was on the site daily to inspect the work. He complained periodically about various aspects of the job to Roger Williams. His main complaint concerned the trusses on the roof which he contended were out of alignment causing a wavy and uneven roof line.

   
   

8. After the house was essentially completed, Oleksy lodged a complaint with Williams concerning the workmanship on the roof. Williams sent a carpenter to visit the premises who found some "variations" and worked for approximately three hours to correct the problem. He was then told by Oleksy it looked okay. Within the next few days, Oleksy again complained to Williams that the roof was wavy. Williams then sent out a roofing crew to attempt to correct the problem. After they completed their work, Williams received no further indication that

   the owner was unhappy. Williams later had a local relator familiar with the subdivision and an experienced carpenter who had framed more than 150 homes to view the roof. Both concluded the roof was of good workmanship and of similar quality to other homes in the neighborhood.

   
   

9. Oleksy later filed a complaint with the City of Palm Bay concerning his roof. The City sent its chief building official to inspect the home. He described the roof as being of "poor workmanship". The same conclusion was reached by the city building inspector who also inspected the property. Because of this, the City made the notation "Hold problem roof" in its file and did not issue a certificate of occupancy to Oleksy. However, the City did not construe the roof to constitute a violation of the building code.

   
   

10. Respondents asserted that a 1979 change in the law as to the qualification of agents caused doubt and confusion as to what was required by ABI and Williams. They also point out that if indeed a violation occurred, it was not intentional. Rather, Respondents simply desired to comply with all applicable statutes and regulations so that their construction businesses could continue to operate in a lawful manner. Other than the alleged violations herein, Respondents were not shown to have been subject to any prior disciplinary proceedings.

    
    

    CONCLUSIONS OF LAW

    
    

11. The Division of Administrative Hearings has jurisdiction of the subject matter and parties thereto pursuant to Subsection 120.57(1), Florida Statutes.

    
    

12. Separate Administrative Complaints have been issued against Respondents. Accordingly, resolution of the charges will be discussed separately hereinafter.

    
    

    1. Roger S. Williams - (Case No. 81-2194) - Five counts have been filed against Williams. However, no evidence whatsoever was adduced concerning Count IV, and that charge should be dismissed. 3/

       
       

13. Count I - In this count, it is generally alleged that Williams entered into a contract under the name of Architectural Builders, Inc. (ABI) with one Jack Oleksy to build a home, that ABI was never qualified, that Williams was acting as a contractor under a name other than the one under which he was registered, and that such actions constituted a violation of Subsections 489.129(1)(g) and 489.129(1)(j), Florida Statutes. 4/

    
    

14. Respondent readily acknowledged that neither he nor ABI were licensed to construct homes in the City of Palm Bay, and that the job was performed under Schreiner's registration. The evidence discloses that Williams did indeed sign off on the final payment affidavit as the contractor on the job, and assumed the responsibility of paying the subcontractors as bills became due. Despite his contention that he did not consider himself a building contractor on the job, it is concluded that a technical, albeit unintentional, violation of the law has occurred, and that Respondent is guilty as charged.

    
    

15. Count II - Here it is alleged Respondent did not obtain a local certificate to competency from Brevard County, and by failing to do so, has violated Subsection 489.129(1)(d), Florida Statutes, in that he willfully disregarded a local law. 5/ In order for Respondent to have violated the foregoing law, it must be shown by "substantial" evidence that he willfully or

    deliberately intended to do so. Bowling v. Department of Insurance, 394 So.2d

    165 (Fla. 1st DCA 1981). While it is true that he failed to obtain a local certificate of competency, it was not shown that his act was willful and deliberate, and with the intention of circumventing the law. Indeed, Respondent was unaware of the illegal nature of his actions until the complaint herein was filed. In the absence of any showing that the acts were willful and deliberate, it is concluded that Count II should be dismissed.

    
    

16. Count III - In Count III it is contended that the roof on Oleksy's home had "dips" and was "wavy", displayed poor workmanship, and therefore constitute misconduct in the practice of contracting within the meaning of Subsection 489.129(1)(m), Florida Statutes. The evidence is conflicting as to whether the roof was indeed improperly constructed. It is clear, however, that the roof is structurally sound. In resolving the validity of this charge, it is not necessary to determine whether the roof was good or bad, but whether Petitioner has charged Respondent with the proper element of the statute. Subsection 489.129(1)(m) makes the following acts by a licensee unlawful:

    
    

    (m) Upon proof and continued evidence that the licensee is guilty of fraud or deceit or of gross negligence, incompetency, or misconduct in the practice of contracting.

    
    

    The term "misconduct" is not defined by Chapter 489. However, it is defined in Black's Law Dictionary as follows:

    
    

    A transgression of some established and definite rule of action, a forbidden act, a dereliction from duty, unlawful behavior, willful in character, improper or wrong behavior...delinquiency, impropriety, mismanagement, offense, but not negligence or carelessness. Blacks Law Dictionary, 5th Edition (1979) (Emphasis supplied)

    
    

    Accordingly, while poor workmanship may conceivably constitute incompetency or gross negligence within the meaning of the law, it cannot reasonably be construed to fall within the definition of misconduct. This is especially true since penal statutes such as this must be strictly construed in favor of the accused. Bach v. Florida State Board of Dentistry, 378 So.2d 34 (Fla. 1st DCA 1980). Respondent may indeed be guilty of negligence or incompetency on the project in question--but he has not been charged with violating those portions of the statute. This being so, Count III should be dismissed.

    
    

17. Count IV - Respondent has admitted that he failed to place his certificate number on the contract in question. However, since Respondent was not licensed to be a contractor on the job, the undersigned concludes that he had no corresponding duty to place his certificate number on the contract. Therefore, this charge should be dismissed.

    
    

    1. Frederick L. Schreiner (Case No. 81-2375) - It is charged that Schreiner (1) failed to qualify a business organization [s. 489.119(2) and (3)],

    (2) aided or abetted an uncertified person(s) (Williams and ABI) to evade a provision of the Act [s. 489.129(1)(e)], and (3) willfully disregarded a state law and violated Chapter 489 in a material respect by failing to qualify a business organization and by aiding and abetting an uncertified person to circumvent the law [ss. 489.129(1)(d) and 489.129(1)(j)].

18. The facts disclose that Schreiner did not qualify ABI as a business organization as required by law and is guilty as charged in the complaint. However, the act was unintentional and without the purpose of circumventing the law. The same conclusion must be reached with respect to the second charge, since Schreiner unintentionally aided unregistered persons (ABI and Williams) to evade a provision in the law. The final charge alleges that Schreiner willfully and deliberately disregarded and violated a state law, and failed to comply with Chapter 489 in a material respect. The first part of the charge must fail since there was no evidence to show that Respondent willfully and deliberately violated a state law or otherwise intended to circumvent a provision of Chapter

489. The facts support a finding of guilt as to the second charge, although such violation was unintentional, and it is concluded that a violation as charged occurred.

19. A public reprimand is sufficient penalty for Respondents because (a) the illegal acts occurred during a transition period of new amendment to the law, (b) the acts were clearly unintentional, (c) no member of the public was monetarily harmed, and (d) the acts relate to a single contract in 1979 and no other blemishes on their lengthy tenure in the construction business have been shown.

RECOMMENDATION

Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that Respondent, Roger S. Williams, be found guilty as charged

in Count I, and be given a public reprimand. the remainder of the charges should be dismissed. It is further

RECOMMENDED that Respondent, Frederick L. Schreiner, be found guilty as charged of all allegations except willfully and deliberately violating a state law, and be given a public reprimand.

DONE and ENTERED this 29th day of June, 1982, in Tallahassee, Florida.

DONALD R. ALEXANDER

Hearing Officer

Division of Administrative Hearings Oakland Building

2009 Apalachee Parkway

Tallahassee, Florida 32301

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 29th day of June, 1982.

ENDNOTES

1/ An objection to Respondents' Exhibit 7 was sustained.

2/ Respondents were given an extension of time in which to file proposed findings of fact and conclusions of law. However, none were timely filed.

3/ Count IV alleges that Williams "...advertise(d) in the telephone directory yellow pages as Architectural Builders, Inc.," and by doing so, had violated Subsection 489.129(1)(j) in that he failed to comply in a material respect with a provision of Chapter 489, to wit, Subsection 489.127(1)(a).

4/ Subsections 489.129(1)(g) and (j) prohibit the following acts:

(1)(g) Acting in the capacity of a contractor under any certificate or registration issued hereunder except in the name of the certificate holder or registrant...

* * *

(1)(j) Failure in any material respect to comply with the provisions of this act.

5/ Subsection 489.129(1)(d) makes unlawful the "willful or deliberate disregard and violation of the applicable building codes or laws of the state or of any municipalities or counties thereof."

COPIES FURNISHED:

John S. Kalil, Esquire and Barry S. Sinoff, Esquire 2400 Independent Square One Independent Drive

Jacksonville, Florida 32202

Thomas E. Shine, Esquire Post Office Box 1293 Melbourne, Florida 32935

Mr. Samuel Shorstein, Secretary Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32301

Docket for Case No: 81-002194

Orders for Case No: 81-002194