STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF PROFESSIONAL )

REGULATION, CONSTRUCTION )

INDUSTRY LICENSING BOARD, )

)

Petitioner, )

)

vs. ) CASE NO. 81-2972

)

ROBERT JEROME FILER, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, WILLIAM B. THOMAS, held a formal hearing in this case on June 25, 1982, in Miami, Florida. The transcript was received and filed on July 16, 1982, and the parties were allowed 15 days thereafter to submit proposed findings of fact and conclusions of law. These have been timely filed and have been considered. Where not adopted, they were found to be irrelevant or contrary to the weight of the credible evidence. The parties waived the time constraint for issuance of this Recommended Order.

APPEARANCES

For Petitioner: Harold M. Braxton, Esquire

45 South West 36th Court Miami, Florida 33135

For Respondent: Samuel Schoninger, Esquire

9300 South Dadeland Boulevard Miami, Florida 33156

By Administrative Complaint filed on August 13, 1981, the Petitioner seeks to discipline the Respondent on six counts of alleged violations of Chapter 489, Florida Statutes, which regulates the construction industry in Florida.

Specifically, each of these counts presents the following five issues for determination, namely, (1) whether the Respondent aided and abetted an uncertified or unregistered person to evade the registration and qualifying provisions of the statute; (2) whether the Respondent knowingly combined or conspired with an uncertified person by allowing that person to use the Respondent's certificate to qualify a building project; (3) whether the Respondent acted in the capacity of a contractor under any certificate except in the name of the certificate holder; (4) whether the Respondent failed to properly qualify a corporation for the purpose of developing and building a project; and (5) whether the Respondent abandoned a construction project without notice or just cause.

The Petitioner presented four witnesses, including one of the purchasers of property in the project which is the subject of this proceeding, the project manager or superintendent, the general partner of the subject project, and the Respondent. Ten exhibits were received in evidence. The Respondent testified in his own behalf in defense of the charges against him.

Based upon the stipulations of the parties, the testimony and evidence presented, and the observed candor and demeanor of the witnesses, the following are found as facts.

FINDINGS OF FACT

1. The Respondent, Robert J. Filer, is a certified general contractor, holding license number CG C002063 and license number CG CA02863 issued by the Construction Industry Licensing Board. The Respondent is also licensed as an architect in the State of Florida, but the charges in the Administrative Complaint are not directed to his license to practice architecture.

   
   

2. During the year 1978 a real estate project known as Silver Woods began to build houses in Palm Beach County. This project was a development of Silver Woods, Ltd., a limited partnership. The objective was the construction and sale of 60 homes.

   
   

3. The Respondent was hired pursuant to an oral agreement to design the houses, 1/ review shop drawings, secure building permits, inspect the houses, and execute certain bank documents and permit applications.

   
   

4. The Respondent pulled the building permits in the name of Sun State Enterprises, a company owned entirely by him, although Sun State Enterprises was not connected with the Silver Woods project. Building permits were pulled in this manner for five of the six dwellings as set forth in the Administrative Complaint.

   
   

5. The Respondent had qualified Sun State Enterprises at the beginning of the project. Subsequently, when it became evident that the project was failing because the houses could not be constructed profitably for the prices at which they had been sold, the Respondent filed a change of status report and qualified Silver Woods, Ltd. This was done pursuant to advice to the Respondent from an investigator for the Department of Professional Regulation. However, the Respondent never pulled any permits in the name of Silver Woods, Ltd.

   
   

6. Work on the Silver Woods project stopped in October of 1979 without any notice to prospective owners, and Silver Woods, Ltd., filed for bankruptcy.

   
   

7. The Respondent was listed on several documents as the contractor for the project. Moreover, he executed construction loan agreements in the capacity of contractor for the purpose of fulfilling the requirements of lending institutions for providing additional funds to the project. The Respondent knew these documents, with his signature as contractor, were required before the loan proceeds could be disbursed.

   
   

8. The Respondent contends that he is exempt from the requirements of Chapter 489, Florida Statutes, because he was acting as an architect rather than as a contractor. He also contends that he acted as a construction manager, instead of a contractor. However, the Respondent had no authority to hire or fire employees, or to sign checks for Silver Woods, Ltd., or to make management decisions relative to the project. These are functions that are performed by

   construction managers; they were not part of the Respondent's duties. As an architect, the Respondent is exempt from Chapter 489, Florida Statutes, but as a contractor he is not. The substantial, competent evidence in the record does not support a conclusion that the Respondent acted either as an architect or as a construction manager in connection with the pulling of permits for the Silver Woods project.

   
   

   CONCLUSIONS OF LAW

   
   

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

   
   

10. Section 489.129, Florida Statutes, sets forth specific acts which constitute cause for disciplinary action against contractors. Among these are "aiding and abetting any uncertified or unregistered person to evade any provision of this act" [subsection (1)(e)], and "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" [subsection (1)(f)]. When the Respondent failed to qualify Silver Woods, Ltd., and qualified Sun State Enterprises instead, and allowed the project to proceed under the qualification of Sun State Enterprises, he violated these two proscriptions of the statutes.

    
    

11. The statutory definition of a qualifying agent is set forth in Section 489.105(4), Florida Statutes, as follows:

    
    

    "(4) Qualifying agent means a person who possesses the requisite skill, knowledge and experience to supervise, direct, manage and control the contracting activities of the business entity with which he is connected. . ."

    
    

    The purpose of having a qualifying agent is to assure that a project has a responsible party to provide redress to aggrieved persons. Thus, this statute requires a qualifying agent to be a contractor with the requisite skills and experience.

12. Section 489.129(1)(f), Florida Statutes, provides: ". . .[W]hen 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."

    
    

    Since the Respondent had nothing to do with the operations, management, or control of Silver Woods, Ltd., he has violated the provisions of this statute.

13. Section 489.129(1)(g), Florida Statutes, makes it a violation to "[a]ct in the capacity of a contractor under any certificate or registration issued hereunder except in the name of the certificate holder or registrant." By executing construction loan documents and a change of status form as contractor on the project, the Respondent acted in the capacity of a contractor on behalf of Silver Woods, Ltd., although the certificate holder was Sun State Enterprises. Thus, the Respondent violated this part of the statute.

    
    

14. Another act constituting cause for disciplinary action is the failure in any material respect to comply with the provisions of these statutes.

    Section 489.129(1)(j), Florida Statutes. Since the Respondent failed to qualify Silver Woods Ltd., until the project appeared to be in financial difficulty, in violation of the statutory requirements, he also violated Section 489.121(1)(j), Florida Statutes.

    
    

15. When work on the Silver Woods project stopped in October of 1979 without notice to the persons who had contracted for residences, the construction project became abandoned. Section 489.129(1)(k), Florida Statutes, provides that a "project is to be considered abandoned after 90 days if the contractor terminates said project without notification to the prospective owner. . .". When the Respondent undertook to act as the qualifying agent, he assumed responsibility for the project, including its abandonment. Section 489.129(1)(k), Florida Statutes, makes the abandonment of a construction project "in which the contractor is engaged or under contract as a contractor" further grounds for disciplinary action. The Respondent has also violated this provision.

RECOMMENDATION

Based upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED that license number CO C002063 and license number CG CA02063

held by the Respondent, Robert Jerome Filer, be revoked.

THIS RECOMMENDED ORDER entered on this 6th day of August, 1982, in Tallahassee, Florida.

WILLIAM B. THOMAS, 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 6th day of August, 1982.

ENDNOTE

1/ This function was performed in the Respondent's capacity as an architect, and is not a material factor in this proceeding.

COPIES FURNISHED:

Harold M. Braxton, Esquire

45 South West 36th Court Miami, Florida 33135

Samuel Schoninger, Esquire 9300 South Dadeland Boulevard Miami, Florida 33156

Docket for Case No: 81-002972

Orders for Case No: 81-002972