STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

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

)

Petitioner, )

)

vs. ) CASE NO. 81-2615

)

LOUIS C. EDER, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings by its duly designated Hearing Officer, SHARYN L. SMITH, held a formal hearing in this case on December 13, 1982, in West Palm Beach, Florida. The following appearances were entered:

APPEARANCES

For Petitioner: Harold M. Braxton, Esquire

45 Southwest 36th Court Miami, Florida 33135

For Respondent: John T. Christiansen, Esquire

CHRISTIANSEN JACKNIN & TUTHILL

Post Office Box 3346

West Palm Beach, Florida 33402 ISSUE

The issue for determination in this case is whether the Respondent Louis C. Eder's license should be suspended, revoked or otherwise disciplined for the acts alleged in the Administrative Complaint filed August 31, 1981.

At the final hearing, Dennis Ecks, Dominic Sicilian and Louis C. Eder testified for the Petitioner. Petitioner's Exhibits 1-12 were offered and admitted into evidence. 1/

The Respondent presented no witnesses but offered one exhibit, which was admitted into evidence.

Proposed Recommended Orders have been submitted by the parties. To the extent that the proposed findings submitted by the parties are not reflected in this Order, they are rejected as being not supported by competent and substantial evidence or as being irrelevant to the issues determined here.

FINDINGS OF FACT

1. The Respondent Louis C. Eder (hereafter Respondent) is a registered building contractor holding license number RB 0010762.

   
   

2. At all times pertinent to this proceeding, the Respondent was the qualifying agent for Lujack Construction Company.

   
   

3. On September 11, 1979, Dennis Ecks, a complainant in this proceeding, entered into a written contract with Abco Contracting and Construction Company, through its agent Jack Greenblatt, for remodeling his residence for the sum of

   $5,200.

   
   

4. The permit for the Ecks job was pulled by the Respondent in the name of Lujack Construction Company.

   
   

5. Ecks paid $4,900 to Abco for the job. He withheld $300 to compensate for the failure of Abco to install a screen door.

   
   

6. Ecks paid the $4,900 directly to Abco and never met or spoke to the Respondent during the time the contract was being negotiated and executed.

   After the job was started, the Respondent sent letters to Ecks rescinding the permit for the job and orally communicated his concern that Ecks should exercise caution in his business dealings with Abco.

   
   

7. The Respondent received no monies from either Ecks or Abco for the Ecks' job.

   
   

8. On January 21, 1980, Dominic Sicilian, the other complainant in this proceeding, entered into a written contract with Abco General Contracting and Construction Company, through its agent, Jack Greenblatt, to enclose a carport for $11,675.

   
   

9. The permit for the Sicilian job was pulled by the Respondent in the name of Lujack Construction Company.

   
   

10. Sicilian paid $9,000 of the contract sum directly to Abco.

    
    

11. This job was abandoned after approximately fifty percent of the construction work was completed,

    
    

12. Sicilian, like Ecks, had no discussions with the Respondent before the contract was executed.

    
    

13. Approximately one year after the contract was executed, Sicilian spoke to the Respondent concerning his problems with Abco. At that time the Respondent offered to finish the job for the remainder of the contract price.

    
    

14. Additionally, shortly after Abco started the job, the Respondent informed Sicilian, both orally and in writing, that he would not be working on the job because he had not been paid by Abco and Sicilian should exercise caution in his business dealings with Abco.

    
    

15. Both Ecks and Sicilian believed that they were dealing with Abco and neither had any knowledge of Lujack Construction or its relationship to Abco.

16. The Respondent did not enter into construction contracts with either Ecks or Sicilian.

    
    

17. The Respondent began working for Abco in the capacity of foreman. Shortly after commencing employment with Abco, the Respondent was requested by Abco to obtain permits for pending jobs due to a problem Abco encountered in obtaining permits. The problem resulted from Abco maintaining a business in an area zoned noncommercial.

    
    

18. Approximately two weeks after commencing employment with Abco, the Respondent's relationship with Abco changed and he became the contractor on the job under the name Lujack Construction Company, a name which the Respondent had used for many years.

    
    

19. Shortly after commencing work at Lujack Construction, the Respondent quit when he was not paid from the first draw.

    
    

20. The Respondent terminated his relationship with Abco and notified Ecks and Sicilian that he was no longer working on the job due to non-payment and was rescinding the permits which he had pulled.

    
    

21. The Respondent attempted without success to as certain the proper procedure to terminate the permits by directing inquiries to the Cooper City Building Department, Broward County Building Department, Palm Beach County Building Department and the Palm Beach County Construction Industry Licensing Board and the Department of Professional Regulation.

    
    

22. The Respondent has been a licensed general contractor for fourteen years. During that period of time, he has built hundreds of homes in the Palm Beach area. Other than the complaints filed in the instant case, the Respondent has not been the subject of any previous complaint or disciplinary proceeding.

    
    

    CONCLUSIONS OF LAW

    
    

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

    
    

24. By a five-count Complaint, the Respondent is charged with violating Sections 489.129(1)(d), (f), (g), (h), (j), (k), (m) and 489.119(2) and (3), Florida Statutes (1979), which provide as follows:

    
    

    489.129 Disciplinary proceedings.--

    1. The board may revoke, suspend, or deny the issuance or renewal of the

       certificate or registration of a contractor or impose an administrative fine not to exceed $1000, place the contractor on probation, reprimand or censure, a contractor if the contractor is found guilty of any of the following acts:

       * * *

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

          or laws of the state or of any municipalities or counties thereof,

       2. Aiding or abetting any uncertified

          or unregistered person to evade any provision of this act.

       3. Knowingly 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 this act. When a certificate holder or registrant allows his certificate or registration to be used by one or more companies without having any active

          participation in the operations, management, or control of said companies, such act constitutes prima facie evidence of an intent to evade the provisions of this act.

       4. Acting in the capacity of a contractor under any certificate or registration

          issued hereunder except in the name of the certificate holder or registrant as set

          forth on the issued certificate or registration, or in accordance with the personnel

          of the certificate holder or registrant as set forth in the application for the certificate or registration, or as later changed as provided in this act.

       5. Diversion of funds or property received for prosecution or completion of a specified construction project or operation when as a result of the diversion the contractor is or will be unable to fulfill the terms of his obligation or contract.

          * * *

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

          2. Abandonment of a construction project in which the contractor is engaged or under contract as a contractor. A project is to

          be considered abandoned after 90 days if the contractor terminates said project without notification to the prospective opener and without just cause,

          * * *

          (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.

          489.119 Business organizations; qualifying agents.--

          * * *

    2. If the applicant proposes to engage in contracting as a partnership, corporation, business trust, or other legal entity, the applicant shall apply through a qualifying agent; the application shall state the name of the partnership and of its partners, the name of the corporation and of its officers and directors, the name of the business trust and

       its trustees, or the name of such other legal entity and its members; and the applicant shall furnish evidence of statutory compliance if

       a fictitious name is used. Such application shall also show that the qualifying agent is legally qualified to act for the business organization in all matters connected with its contracting business and that he has authority to supervise construction undertaken by such business organization. The registration or certification, when issued upon application

       of a business organization, shall be in the name of the qualifying agent, and the name of the business organization shall be noted thereon.

       (3)(a) The qualifying agent shall be certified or registered under this act in order for the business organization to be certified or registered in the category of the business conducted for which the qualifying agent is certified or registered. If any qualifying agent ceases to be affiliated with such business organization, he shall so inform the department.

       In addition, if such qualifying agent is the only certified or registered individual affiliated with the business organization, the business organization shall notify the

       department of the termination of the qualifying agent and shall have a minimum of 60 days from the termination of the qualifying agent's affiliation with the business organization in which to employ another qualifying agent.

       The business organization may not engage in contracting until a qualifying agent is employed.

       1. The qualifying agent shall inform the department in writing when he proposes to engage in contracting in his own name or in affiliation with another business organization, and he or such new business organization shall supply the same information to the department as required of applicants under this act.

       2. Upon a favorable determination by

       the board, after investigation of the financial responsibility, credit, and business

       reputation of the qualifying agent and the new business organization, the department shall issue, without an examination, a new certificate or registration in the qualifying agent's name, and the name of the new business organization shall be noted thereon.

       
       

       Count One

       
       

25. In count one, the Respondent is alleged to have abandoned the Sicilian job and diverted funds from this project in violation of Sections 489.129(1)(h)

    and (k), Florida Statutes (1979), and as a result could not fulfill a contractual obligation.

    
    

26. The evidence produced at trial demonstrates that the Respondent notified Sicilian that he was terminating his involvement in this project due to non payment by Abco. The Respondent met the requirements of Section 489.129(1)(k), Florida Statutes, by informing the owner of his intended abandonment and having just cause for such abandonment.

    
    

27. No evidence was introduced to show that the Respondent received any monies from Sicilian or Abco for this job. The statute by necessary implication requires that funds be received in order for any funds to be diverted.

    
    

    Count Two

    
    

28. The Respondent is alleged in count two to have aided and abetted an unlicensed person to evade the provisions of the contracting licensing law, Section 489.129(1)(e), Florida Statutes (1979), to have knowingly conspired with an unlicensed person and allowed his license to be used to evade the provisions of the contracting licensing law, Section 489.129(1)(f), Florida Statutes (1979), to have engaged in the contracting business under a name other than that registered, Section 489.129(1)(g). Florida Statutes (1979), and to have failed to properly qualify a company under which he was doing business, Sections 489.129(1)(j) and 489.119(2) and (3), Florida Statutes (1979).

    
    

29. Section 489.129(1)(e) and (f), Florida Statutes (1979), prohibit a licensed contractor from aiding, abetting or conspiring with any unlicensed person to evade the provisions of Chapter 489, Florida Statutes. Insufficient evidence was introduced at the final hearing to establish that Abco was unlicensed or uncertified. 2/ Further the Respondent pulled the permits in the name of Lujack Construction Company, a name that is registered. The record fails to reflect that the Respondent ever qualified or attempted to qualify Abco.

    
    

    Count Three

    
    

30. In count three, the Respondent is alleged to have violated Section 489.129(1)(k), Florida Statutes (1979), prohibiting abandoning a construction project without giving notice and without just cause, and Section 489.129(1)(h), Florida Statutes (1979), prohibiting diversion of funds received for completion of a project.

    
    

31. The evidence produced at trial demonstrates that the Respondent terminated his work on the Ecks job for just cause with notice to the owner and, therefore, met the requirements of Section 489.129(1)(k), Florida Statutes (1979). Similarly, the Respondent did not violate Section 489.129(1)(h), Florida Statutes (1979), since neither Ecks nor Abco gave any funds to the Respondent for either project.

    
    

    Count Four

    
    

32. The determination by the Hearing Officer that official recognition cannot be taken of an uncertified, undated copy of the Broward County Code effectively precludes consideration of count four which charges the Respondent with violating Section 9-8(a) of the Broward County Code, and Section 489.129(1)(d), Florida Statutes (1979), prohibiting the willful or deliberate

    disregard and violation of the applicable building codes or laws of any municipality or counties thereof.

    
    

    Count Five

    
    

33. Respondent is charged in count five with a continuous course of misconduct in the practice of contracting by virtue of the allegations contained in counts one-four, in violation of Section 489.129(1)(m), Florida Statutes (1979). This count requires a finding that the Respondent is guilty of some or all of the previous counts. By necessary implication, this count cannot be prosecuted separately and since the Respondent has been found to have not violated counts one-four, this count should also be dismissed.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED:

That a Final Order be entered by the Petitioner Construction Industry Licensing Board dismissing the Administrative Complaint filed against Respondent Louis C. Eder.

DONE and ENTERED this 15th day of March, 1983, in Tallahassee, Florida.

SHARYN L. SMITH, 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 15th day of March, 1983.

ENDNOTES

1/ At the final hearing, ruling was reserved on Petitioner's request that official recognition be taken of a copy of Section 9.8 of the Broward County Code, The Respondent objected to the request since the copy was not certified and no evidence was presented demonstrating that the code provision was in effect at the time of the alleged offense. Sections 90.203(2) and 90.204(2), Florida Statutes, permit judicial notice to be taken of local code provisions so long as a court is furnished with sufficient pertinent and reliable information to enable it to take judicial notice of such documents. A witness which the Respondent had subpoenaed at the final hearing to establish that the code provisions offered were in effect at the time of the acts alleged, failed to appear. Under such circumstances, a copy of an uncertified and undated code provision does not constitute material of which official recognition may be taken. See Section 120.61, Florida Statutes.

2/ In support of the contention that Abco was unlicensed at the time the permits were polled, the Petitioner cites the Respondent's testimony at the

final hearing to the effect that he knew Abco could not pull permits. However, the Respondent testified that he believed Abco was licensed but was unable to pull permits because it was running a business in a non-commercial area. (See TR at 64-66) The burden of proving the non existence of licensure as required by the statute rests with the Petitioner. The evidence produced to support this element of the charge is legally insufficient, even assuming, arguendo, the unbelievability of the Respondent's testimony. Cf. Bowling v. Department of Insurance, 394 So.2d 165, 175 (Fla. 1st DCA 1981).

COPIES FURNISHED:

Harold M. Braxton, Esquire

45 Southwest 36th Court Miami, Florida 33135

John T. Christiansen, Esquire CHRISTIANSEN JACKNIN & TUTHILL

Post Office Box 3346

West Palm Beach, Florida 33402

James Linnan, Executive Director Construction Industry Licensing

Board

Post Office Box 2 Jacksonville, Florida 32202

Fred Roche, Secretary Department of Professional

Regulation 130 North Monroe Street Tallahassee, Florida 32301

Docket for Case No: 81-002615

Orders for Case No: 81-002615