STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF PROFESSIONAL )

REGULATION, CONSTRUCTION )

INDUSTRY LICENSING BOARD, )

)

Petitioner, )

)

vs. ) CASE NO. 82-570

)

ISAAC BUTLER, )

)

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 November 16, 1982, in Ocala, Florida. The transcript was filed on December 22, 1982. The Petitioner requested time within which to submit proposed findings of fact and conclusions of law, and 15 days after the filing of the transcript was allowed.

Proposed findings were received from the Petitioner within the time allowed, as extended, and these have been adopted. Nothing was submitted by or on behalf of the Respondent. By stipulation, the time for issuance of this Recommended Order was extended to February 2, 1983.

APPEARANCES

For Petitioner: John O. Williams, Esquire

547 North Monroe Street, Suite 204 Tallahassee, Florida 32301

For Respondent. None

By Notice of Hearing issued on August 11, 1982, the Respondent was advised that a final hearing would be conducted on his request for a hearing that was made in the Election of Rights form signed by him on September 28, 1981.

Subsequently, an Amended Hearing Notice was issued on September 16, 1982, rescheduling the final hearing for November 16, 1982. These notices were directed to the Respondent at RFD 1, Box 752, Anthony, Florida 32617 which is the address given by him on his Election of Rights form. None of the notices was returned by the Post Office as undeliverable.

At the time and place designated in the Amended Notice of Hearing, after waiting 15 minutes for an appearance, the Respondent did not arrive. Thus, the hearing took place as noticed.

By Administrative Complaint filed on September 17, 1981, the Department of Professional Regulation charged the Respondent, Isaac Butler, with violation of Section 489.129 (1)(f), Florida Statutes, in that he knowingly combined or

conspired with an unlicensed person by allowing his registration to be used by an unlicensed person with the intent to evade the provisions of the contracting practice act.

The Petitioner also charged the Respondent with violation of Section 489.129(1)(e), Florida Statutes, in that he aided or abetted an unlicensed or uncertified person to evade the provisions of the contracting license law.

The complaint further charged that the Respondent violated Section 489.129(1)(g), Florida Statutes, in that he was not acting in the capacity of a contractor under a registration issued in the name of the registrant as set forth on the issued registration, or in accordance with the personnel of the registrant as set forth in the application for the registration.

Finally, the Respondent was charged with violation of Section 489.119(1), Florida Statutes, in that if an individual proposes to contract in his own name, then registration may be issued only to that individual.

In support of the allegations in the Administrative Complaint, the Petitioner presented the testimony of Sweet E. Glover, who contracted to have a house built for herself, and Robert Maxwell, an investigator with the Department of Professional Regulation. Five exhibits were offered and received in evidence.

FINDINGS OF FACT

1. The Respondent is a registered building contractor, having been issued license number RB 0010555.

   
   

2. On December 12, 1980, Benjamin Kyler entered into a contract with Sweet

   E. Glover to construct a house for her at 2020 Southwest First Street, Ocala, Florida.

   
   

3. At no time material hereto was Benjamin Kyler properly licensed to perform contracting in the State of Florida.

   
   

4. The Respondent obtained the building permit to enable Benjamin Kyler to perform the construction contract with Sweet Glover.

   
   

5. Benjamin Kyler received approximately $1,650, but he performed only a minimal amount of construction on the Glover residence.

   
   

6. The Respondent knew that Benjamin Kyler was engaged in the construction of a residence for Sweet Glover, and the Respondent also knew that Benjamin Kyler was not licensed to contract in the State of Florida.

   
   

7. The Respondent was paid a fee for pulling the building permit for Benjamin Kyler.

   
   

   CONCLUSIONS OF LAW

   
   

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

   
   

9. The Construction Industry Licensing Board is charged with carrying out the provisions of Chapter 489, Florida Statutes. Part I of this Act sets the

   standards for licensure in the field of construction contracting, and provides for disciplinary proceedings when the prescribed standards have been violated. Pursuant to Section 489.129(1)(f), Florida Statutes, the Board is authorized to revoke or suspend the certificate or registration of a contractor, or to impose an administrative fine not exceeding $1,000, or other sanctions, if a contractor is found guilty of knowingly combining or conspiring with an uncertified or unregistered person by allowing his certificate or registration to be used by any uncertified or unregistered person with intent to evade the provisions of the Act.

   
   

10. Section 489.129(1)(g), Florida Statutes, authorizes the above penalties upon proof that a contractor acted in the capacity of a contractor under a name other than as certified or registered.

    
    

11. Section 489.129(1)(e), Florida Statutes, authorizes the above penalties if a contractor is found guilty of aiding or abetting an unlicensed person to evade the provisions of the contracting license law.

    
    

12. Section 489.119(1), Florida Statutes, prescribes that if an individual proposes to contract in his own name, then registration or certification may be issued only to that individual.

    
    

13. The evidence presented by the Petitioner supports a finding that the Respondent is guilty of violating Section 489.129(1)(e) and (f), Florida Statutes. The Respondent knew that Benjamin Kyler was performing contracting in the State of Florida without a license, and the Respondent received a fee for pulling the permit for Benjamin Kyler. Thus, the Respondent knowingly conspired with Benjamin Kyler, an unlicensed person, to evade the provisions of the contracting statute, and he knowingly aided and abetted Benjamin Kyler to evade the provisions of the licensing law.

    
    

14. However, insufficient evidence was presented to support a finding of guilt on the charges that the Respondent violated Section 489.129(1)(g) and Section 489.119(1) Florida Statutes.

RECOMMENDATION

From the foregoing Findings of fact and Conclusions of Law, it is RECOMMENDED that the Respondent, Isaac Butler, be found guilty of violating

Section 489.129(1)(e) and 489.129 (1)(f), Florida Statutes, and that his license be revoked.

THIS RECOMMENDED ORDER entered on this 1st day of February, 1983.

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 1st day of February, 1983.

COPIES FURNISHED:

John O. Williams, Esquire

547 North Monroe Street Suite 204

Tallahassee, Florida 32301

Mr. Isaac Butler RFD 1, Box 752

Anthony, Florida 32617

Fred Roche, Secretary Department of Professional

Regulation

130 North Monroe Street Tallahassee, Florida 32301

James Linnan, Executive Director Construction Industry Licensing

Board

Post Office Box 2 Jacksonville, Florida 32202

Docket for Case No: 82-000570

Orders for Case No: 82-000570