STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

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

)

Petitioner, )

)

vs. ) CASE NO. 81-2771

)

CLARENCE O. NIELSON, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, William E. Williams, held a formal hearing in this cause on March 17, 1982, in Deland, Florida.

APPEARANCES

For Petitioner: Barry S. Sinoff, Esquire and

John S. Kalil, Esquire 2400 Independent Square

Jacksonville, Florida 32202-5064

For Respondent: Michael L. Brewer, Esquire

399 Canal Street Post Office Box 832

New Smyrna Beach, Florida 32069

By Administrative Complaint dated August 6, 1981, the Florida Construction Industry Licensing Board ("Petitioner") charged Respondent, Clarence O. Nielsen ("Respondent") with violating numerous provisions of Chapters 468 and 489 of the Florida Statutes. Respondent disputed the factual allegations of the Administrative Complaint and requested a formal hearing pursuant to Section 120.57(1), Florida Statutes. By Notice of Hearing dated December 21, 1981, final hearing was scheduled for March 17, 1982.

At the final hearing, Petitioner called William R. Roach, Irvon E. Corwin, Clyde Pirtle, Charles Byrd, and Dorothy Pullins Robles, and offered Petitioner's Exhibits 1 through 4, each of which was received into evidence. Respondent Nielsen testified in his own behalf.

Both counsel for Petitioner and for Respondent have submitted proposed findings of fact for consideration by the Hearing Officer. To the extent that those proposed findings are not included in this Recommended Order, they have been specifically rejected as either being irrelevant to the issues in this cause, or as not having been supported by the facts of record.

ISSUES PRESENTED

1. Whether the Respondent, a registered general contractor, violated Section 489.129(1)(e), Florida Statutes, (1979), by aiding and abetting an unlicensed person to evade the provisions of Part II, Chapter 468, Florida Statutes.

   
   

2. Whether the Respondent violated Section 489.129(1)(f), Florida Statutes (1979), by knowingly combining or conspiring with an unlicensed person by allowing his license to be used by an unlicensed person.

   
   

3. Whether Respondent violated Section 489.129(1)(g), Florida Statutes (1979), by acting in the capacity of a contractor under a name other than that listed on his license.

   
   

4. Whether Respondent violated Section 489.129(1)(d) Florida Statutes (1979), by failing to properly qualify his company pursuant to Section 489.119(2) and (3), Florida Statutes (1979).

FINDINGS OF FACT

1. Respondent holds currently active registered general contractor's license No. RG0005734 in the name of "Clarence O. Nielsen."

   
   

2. On June 9, 1978, Respondent entered into a written Joint Venture Agreement with Walter J. Howard with respect to a dwelling on property owned by Mr. Howard in Volusia County, Florida. This agreement provided as follows:

   
   

   For proposed construction on a lot owned by Mr. Walter Howard at 200 Howard Ave. N.S.B. This construction to be undertaken as a joint venture

   between Walter Howard and C. O. Nielsen.

   
   

   Division of any profits from this venture to be shared as follows; [sic] A ten percent profit on total sale to Mr. Howard based on total cost of lot and loan costs and all material and labor (including Mr.

   Howard's salary). Should any profit remain from sale of property it shall be divided equally between Mr. Howard and Mr. Nielsen.

   
   

3. On June 28, 1978, Walter Howard signed and filed with the Clerk of the Circuit Court of Volusia County, Florida, a Notice of Commencement indicating construction of improvements which were the subject of the aforementioned Joint Venture Agreement.

   
   

4. On July 10, 1978, Volusia County Building Permit No. 16379B was issued to Respondent, and listed "Nielsen Construction Company" as the contractor on the project to be constructed on Mr. Howard's property as aforesaid. As previously mentioned, Respondent is licensed only in the name of "Clarence O.

   Nielsen." Respondent admitted, however, that he had registered the name "Nielsen Construction Company" as a fictitious name in compliance with Section 865.09(2)(b) Florida Statutes, although no evidence of such compliance was furnished to Petitioner.

   
   

5. It is uncontradicted in the record of this proceeding that Respondent was on the job site which is the subject matter of this proceeding from two to three times a week during the course of construction. Respondent supervised work while it was in progress, and called for periodic inspections to be made by the Volusia County Department of Building. Respondent was in fact observed to be on the job site by officials of the Volusia County Department of Building on at least two of the several occasions when they made periodic inspections.

   These inspections were made by officials of the Volusia County Department of Building on July 11, 1978; July 20, 1978; July 25, 1978; August 3, 1978; October

   9, 1978; and December 29, 1978.

   
   

6. Although Mr. Howard was frequently on the job site; signed the Notice of Commencement; obtained financing from First Federal Savings and Loan Association in New Smyrna Beach, Florida; made draw requests to that financial institution; and submitted an affidavit on December 29, 1978, indicating that all outstanding liens concerning the project had been satisfied, there is absolutely no direct, credible evidence of record in this proceeding to contradict Respondent's assertion that he took an active part as a contractor in the construction of the improvements on the property.

   
   

7. Sometime in either October or November of 1978 Mr. Howard was contacted by the eventual purchaser of the home. Negotiations between Mr. Howard and the purchaser culminated in a down payment being made on the home in early December of 1978. The purchaser moved into the home on December 19, 1978, and later experienced problems with the construction of the house. The purchaser lodged complaints concerning the construction of the house with the Volusia County Department of Building, which apparently ultimately led to these charges being filed against Respondent.

   
   

   CONCLUSIONS OF LAW

   
   

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

   
   

9. Section 489.129(1), Florida Statutes, provides, in pertinent part, as follows:

   
   

   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 $1,000, 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 a state or of any municipalities or counties thereof.

      2. Aiding or abetting any uncertified or unregistered person to evade any provisions 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 under 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.

      * * *

      (j) Failure in any material

      respect to comply with the provisions of this act. (Emphasis added.)

      
      

10. Section 489.119, Florida Statutes, provides, in part, as follows:

    
    

    1. If an individual proposes to engage in contracting in his own name, registration or certification may be issued only to that individual.

    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 entities 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 certificate,

       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. (Emphasis added.)

       
       

11. Based upon the foregoing findings of fact, it is specifically concluded, as a matter of law, that there is insufficient evidence in the record in this cause to establish a violation by Respondent of any of the requirements of Section 489.129(1), Florida Statutes. In fact, there is no credible evidence to contradict Respondent's testimony that he was directly involved in the day- to-day conduct of the construction of the improvements in question in this proceeding or that he in any fashion used his license or allowed his license to be used by any unlicensed person in violation of Section 489.129(1), Florida Statutes.

    
    

12. By pulling the building permit in this cause under the name of "Nielsen Construction Company," Respondent technically violated Section 489.119(2), Florida Statutes, by engaging in the construction business under a name other than that name in which he was registered, and by failing to furnish evidence to the Board of compliance with the fictitious name statute, Section 865.09(2)(b), Florida Statutes. The record in this cause does not establish that this violation by Respondent was committed with any intention to mislead, or that it in fact did mislead anyone.

Accordingly, it is

RECOMMENDED that a final order be entered by the Department of Professional Regulation, Construction Industry Licensing Board, cautioning Respondent against any future use of the fictitious name, "Nielsen Construction Company," without complying with the aforementioned requirements of law, and that the remaining allegations of the Administrative Complaint be dismissed.

DONE AND ENTERED this 21st day of October,1982, at Tallahassee, Florida.

WILLIAM E. WILLIAMS

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 21st day of October, 1982.

COPIES FURNISHED:

Barry S. Sinoff, Esquire and

John S. Kalil, Esquire 2400 Independent Square

Jacksonville, Florida 32202-5064

Michael L. Brewer, Esquire

399 Canal Street Post Office Box 832

New Smyrna Beach, Florida 32069

James Linnan, Executive Director Construction Industry Licensing

Board

Post Office Box 2 Jacksonville, Florida 32202

Samuel R. Shorstein, Secretary Department of Professional

Regulation

130 North Monroe Street Tallahassee, Florida 32301

Docket for Case No: 81-002771

Orders for Case No: 81-002771