STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

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

)

Petitioner, )

)

vs. ) CASE NO. 81-2374

)

AIME L. VEILLEUX, )

)

Respondent. )

)

RECOMMENDED ORDER

This case was assigned to the Division of Administrative Hearings on September 24, 1981. On November 9, 1981, it was noticed for hearing and a Prehearing Order was entered. The Prehearing Order required the parties to exchange witness lists and lists of exhibits to be offered at the hearing, and to state what matters of fact and law were at issue. Counsel for Respondent filed his Notice of Appearance on October 7, 1981, and his witness list on October 26, 1981, together with a letter to Petitioner's Counsel addressing matters set forth in the Prehearing Order. On November 13, 1981, Respondent's Counsel moved for a continuance because of a trial conflict. A continuance was granted that date by an order which reset the hearing for February 9, 1982, and directed the parties to comply with the previously entered Prehearing Order by January 8, 1982. On February 4, 1982, Michael E. Egan, Counsel for Petitioner who had entered his appearance January 12, 1982, advised the Hearing Officer by letter that he had been unable to meet with Respondent's Counsel and would be unable to provide the prehearing stipulation until the time of hearing.

The hearing commenced on February 9, 1982, in Clearwater, Florida, as noticed. The prehearing stipulation was filed shortly after the beginning of the hearing and placed all matters of fact alleged in the Administrative Complaint at issue, to include jurisdiction of the Construction Industry Licensing Board over the violations complained of and listing all witnesses and documentary exhibits. The Petitioner Board presented its case, and after the Board had rested Respondent made a motion in the nature of a Motion for Directed Verdict, asserting that the Board had failed to present a prima facie case.

APPEARANCES

For Petitioner: Charles F. Tunnicliff, Esquire

Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32301

Michael E. Egan, Esquire

217 South Adams Street Post Office Box 1386

Tallahassee, Florida 32302

Jane E. Heerema, Esquire

217 South Adams Street Post Office Box 1386

Tallahassee, Florida 32302

For Respondent: George E. Tragos, Esquire

487 Mandalay Avenue

Clearwater Beach, Florida 33515 ISSUE

The issues are as follows:

1. Was Respondent licensed at the times involved in the allegations contained in the Administrative Complaint?

   
   

2. Did Respondent place his registration number on the contract?

   
   

3. Did Respondent abandon the construction project?

FINDINGS OF FACT

1. The Respondent entered into a contract with Anthony Cocco and his wife in August of 1977, to construct a single-family residence.

   
   

2. By June of 1978, work on the project had virtually ceased, although Respondent caused some landscaping work to be done after that date. In October, 1978, Respondent gave notice to Cocco of a default on the contract. This led to civil litigation on the contract between the parties which was unresolved at the time of the subject hearing.

   
   

3. Respondent was licensed as a residential contractor in 1970. See Petitioner's Exhibit #1. The Respondent was also licensed at the time of the hearing. See Petitioner's Exhibit #2.

   
   

4. No evidence was received that the Respondent was licensed at any time between the date he entered into the contract with Cocco and the date that Respondent gave notice of default.

   
   

5. Regarding the Respondent's licensure between August of 1977, and October, 1978, the only evidence received was the Petitioner's Exhibit #2, which states in pertinent part:

   
   

   ... Said licensee was licensed September 1970 and has been current for all years licensed.

   
   

   CONCLUSIONS OF LAW

   
   

6. The Division of Administrative Hearings has jurisdiction to hear this cause and enter this Recommended Order pursuant to Section 120.57(1), Florida Statutes. It is basic that the Construction Industry Licensing Board must have jurisdiction over the Respondent to take disciplinary action against him, and the Board bears the burden of proof to establish its jurisdiction over the Respondent.

7. The Board alleges that Respondent failed to place his license number on the contract he entered with Cocco contrary to Sections 468.112(1)(g) and 468.107(6), Florida Statutes (1978 Supp.), now Sections 489.129(1)(j) and 489.119(5), Florida Statutes (1979); and that Respondent abandoned the project without giving notice of default contrary to Section 468.112(1)(h), Florida Statutes (1978 Supp.), now Section 489.129(1)(k), Florida Statutes (1979)

   
   

8. The facts establish that the events which are the basis for the Board's action took place between August of 1977, and October, 1978, when the Respondent gave Cocco notice of default on the contract.

   
   

9. It is critical to the Board's jurisdiction under both Counts I and II, and critical to the Board's allegation that the Respondent failed to place his license number on the contract as alleged in Count I, to show that Respondent was licensed in 1977, and 1978. In support of its allegations, the Board introduced Petitioner's Exhibit #1, the affidavit of Linda D. Smith, Documents Custodian for the Department of Professional Regulation. Her affidavit states in pertinent part:

   
   

   ... Said licensee was licensed September 1970 and has been current for all years licensed.

   
   

10. The language quoted has no specific meaning based upon the definitions of "current" contained in Webster's New Collegiate Dictionary. What Ms. Smith meant is open to conjecture. The Board had the option of calling Ms. Smith as its witness, introducing its records or offering Ms. Smith's affidavit. It elected to introduce her affidavit. Said affidavit is admissible in this proceeding; however, its use prevents the cross-examination of Ms. Smith by the Respondent to clarify the quoted statement upon which the Board bases both its jurisdiction generally and the specific allegation that Respondent failed to place his license number on a contract. If one assumes that Ms. Smith meant the Respondent was licensed in 1970, and has been licensed continuously since that time (a fairly easy concept to express), then the Respondent must take the stand to refute the matter, subjecting him to hostile cross-examination and putting him in jeopardy of incriminating himself with regard to other matters in the Administrative Complaint or possible criminal violations. See Section 489.127, Florida Statutes. This is a manifest denial of due process.

    
    

11. The rules of evidence are relaxed in administrative proceedings; however, the proponent of an affidavit must be bound by the literal meaning of its affidavit or its lack of meaning, as in this case. The persons who are document custodians are not unsophisticated individuals who lack access to legal assistance in preparing legal documents. While this may seem a harsh rule on its face, for the reasons stated above it is the only ruling which can afford the protections of due process and protect the Respondent or others from waiver of their privilege against self- incrimination.

    
    

12. The Board failed to establish that the Respondent was licensed during the period from August, 1977, to October of 1978, and that it had jurisdiction over the Respondent during the period in question. Thus, the Board failed to make a prima facie case against the Respondent with regard to Counts I and II of the Administrative Complaint.

RECOMMENDATION

Therefore, based on the foregoing Findings of Fact and Conclusions of Law, the Respondent's Motion for Directed Verdict is granted, and it is recommended that this cause be dismissed.

DONE and ORDERED this 19th day of April, 1982, in Tallahassee, Leon County, Florida.

STEPHEN F. DEAN, 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 19th day of April, 1982.

COPIES FURNISHED:

Charles F. Tunnicliff, Esquire Department of Professional

Regulation

130 North Monroe Street Tallahassee, Florida 32301

Michael E. Egan, Esquire

217 South Adams Street Post Office Box 1386

Tallahassee, Florida 32302

Jane E. Heerema, Esquire

217 South Adams Street Post Office Box 1386 Tallahassee, Florida 32302

George E. Tragos, Esquire

487 Mandalay Avenue

Clearwater Beach, Florida 33515

Samuel Shorstein, Secretary Department of Professional

Regulation

130 North Monroe Street Tallahassee, Florida 32301

C. B. Stafford, Executive Director

Board of Real Estate

400 West Robinson Street Post Office Box 1900 Orlando, Florida 32802

Docket for Case No: 81-002374

Orders for Case No: 81-002374