STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF PROFESSIONAL )

REGULATION, CONSTRUCTION )

INDUSTRY LICENSING BOARD, )

)

Petitioner, )

)

vs. ) CASE NO. 82-1637

)

KARL F. KARLSON, JR., )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a formal administrative hearing was conducted in this matter on October 8, 1982, in Miami, Florida. The following appearances were entered: Stephanie A. Daniel, Tallahassee, Florida, appeared on behalf of the Petitioner, Department of Professional Regulation, Construction Industry Licensing Board; and Albert Zemlock, Miami, Florida, appeared on behalf of the Respondent, Karl F. Karlson, Jr.

On or about May 7, 1982, the Petitioner issued an Administrative Complaint against the Respondent. Petitioner is seeking to suspend or revoke the Respondent's license to practice contracting under the laws of the State of Florida, or to take other appropriate disciplinary action against the Respondent. The Respondent requested a formal administrative bearing, and the matter was forwarded to the office of the Division of Administrative Hearings for the assignment of a hearing officer and the scheduling of a hearing. The final hearing was originally scheduled to be conducted on September 8, by notice dated July 15, 1982. The parties requested that the hearing be scheduled at a later date, and by notice dated August 6, the final hearing was rescheduled to be conducted as set out above.

At the final hearing, Petitioner appeared with counsel. Counsel moved for a continuance of the hearing on the grounds that he had learned only the day before that the hearing was to be conducted on October 8. The motion for continuance was denied for the reasons stated on the record at the hearing. The Petitioner called the following witnesses: Angel R. Alvarez, a carpenter who is employed with Southern Bilt Kitchens & Baths, Inc.; Patricia Stewart, a home owner who entered into a contract with Southern Bilt for construction of an addition to her house; Rose Brown, the Supervisor of the Permit Records Section of the Dade County Building and Zoning Department; and Nellie Neaves, the Custodian of Records in the Contractor Section of the Dade County Building and Zoning Department. Petitioner's Exhibits 1, 2, and 4 were offered into evidence and received. Petitioner's Exhibit 3 was offered into evidence and rejected.

The parties have submitted post-hearing legal memoranda which include proposed findings of fact and conclusions of law. The proposed findings and conclusions have been adopted only to the extent that they are expressly set out in the Findings of Fact and Conclusions of Law which follow. They have been

otherwise rejected as not supported by the evidence, contrary to the better weight of the evidence, irrelevant to the issues, or legally erroneous.

ISSUES

The issues in this proceeding are whether the Respondent has violated provisions of Florida Statutes pertaining to the licensing of contractors as alleged in the Administrative Complaint, and, if so, what disciplinary action should be imposed.

FINDINGS OF FACT

1. The Respondent has been licensed in Florida as a general contractor since November, 1970. At all times material to this proceeding, the Respondent qualified A & E Builders, Inc., and Maury Daniel Construction Company under his general contractor's license. During March, 1982, Respondent qualified Southern Bilt Kitchens & Baths, Inc. ("Southern Bilt"), under his general contractor's license. Prior to March, 1982, Petitioner had not applied to qualify Southern Bilt under his contractor's license.

   
   

2. Angel Alvarez is now and at all material times was the owner and president of Southern Bilt. Neither Alvarez nor Southern Bilt was registered or certified as a contractor with the Construction Industry Licensing Board. Alvarez has been licensed in Dade County only as a miscellaneous carpenter.

   
   

3. For a period of time which included the years 1980 and 1981, the Respondent received payments from Southern Bilt to obtain building permits so that Southern Bilt could engage in various construction projects. Respondent was not otherwise employed or involved with Southern Bilt, and he did not participate in the operations, management, or control of the company. Respondent would receive payments from Southern Bilt, the amount of which varied depending upon the nature of the project, in exchange for obtaining building permits. Southern Bilt did not have persons in its employ who were qualified to obtain building permits. Southern Bilt utilized Respondent's services solely for the purpose of obtaining building permits.

   
   

4. During October, 1980, Patricia Stewart, a resident of Miami, Florida, entered into a contract with Angel Alvarez, who represented Southern Bilt. The contract was for Southern Bilt to construct an addition to Mrs. Stewart's home. Alvarez and Southern Bilt were not qualified to obtain a building permit to complete the project. The Respondent obtained a building permit for the construction as the qualifier for A & E Builders, Inc. The permit was issued on January 15, 1981. Except for obtaining the permit, neither the Respondent nor A & E Builders, Inc., was involved in the project in any manner. Difficulties arose during construction of the project. Mrs. Stewart had paid a substantial portion of the contract price. She was dissatisfied with the quality and pace of work that was being performed. She did not learn that the building permit for the addition to her home was obtained by persons other than Alvarez and Southern Bilt until after she considered the project abandoned by Southern Bilt and contacted employees of the Building and Zoning Department in Dade County.

   
   

   CONCLUSIONS OF LAW

   
   

5. The Division of Administrative Hearings has jurisdiction over the parties and the subject matter of this proceeding. Sections 120.57(1) and 120.60, Florida Statutes.

6. During the course of the hearing, the Petitioner offered into evidence what purported to be a copy of the contract between Southern Bilt and Mrs. Stewart. The exhibit was marked for identification as Petitioner's Exhibit 3. It was rejected from evidence. Mrs. Stewart brought a copy of the contract to the hearing. This was the document from which Petitioner's Exhibit 3 was copied through some photocopying method. The copy of the contract that Mrs. Stewart brought to the hearing was totally illegible. The copy which was marked for identification as Petitioner's Exhibit 3 is more legible, but is blurred and difficult to decipher. No evidence was presented to explain how a copy could be more legible than the original from which it was taken. Petitioner's Exhibit 3 was therefore deemed not to be credible evidence of the provisions of the contract. The Findings of Fact set out above respecting the contract between Southern Bilt and Mrs. Stewart are based upon the testimony of Mr. Alvarez and Mrs. Stewart.

   
   

7. By obtaining a building permit so that Angel Alvarez and Southern Bilt could perform construction on Mrs. Stewart's home, the Respondent violated the provisions of Section 489.129(1)(e), Florida Statutes. The Respondent in effect allowed Alvarez and Southern Bilt to operate as contractors without being properly certified and licensed as required by the provisions of Chapter 489, Florida Statutes.

   
   

8. The Respondent's conduct constitutes a violation of Section 489.129(1)(f), Florida Statutes. Respondent in effect allowed his contractor's certificate to be used by Southern Bilt. Respondent had no active participation in the operations, management, or control of the company. The Respondent knowingly combined with an uncertified and unregistered person to allow his certificate to be used in violation of Chapter 489.

   
   

9. The Respondent is charged in the Administrative Complaint with violating the provisions of Sections 489.129(1)(g) and (j). These allegations are not supported by the evidence. In order for the Respondent's conduct to constitute violations of these sections, it would be necessary to establish that the Respondent was in effect doing business as Southern Bilt Kitchens & Baths, Inc., in connection with the Stewart project. It appears that the Respondent's only role in the transaction was to obtain a building permit. It was never his intention to perform any of the work under the contract between Southern Bilt and Mrs. Stewart.

RECOMMENDED ORDER

Pursuant to the foregoing Findings of Fact and Conclusions of Law, it is, hereby,

RECOMMENDED:

That a final order be entered by the Construction Industry Licensing Board finding the Respondent guilty of violating the provisions of Sections 489.129(1)(e) and (f), Florida Statutes, as alleged in the Administrative Complaint; suspending the Respondent's general contractor's certification for a period of sixty days; and imposing an administrative fine in the amount of

$1,000 against the Respondent.

RECOMMENDED this 1st day of December, 1982, in Tallahassee, Florida.

G. STEVEN PFEIFFER Hearing Officer

Division of Administrative Hearings Department of Administration

2009 Apalachee Parkway

Tallahassee, Florida 32301

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 1st day of December, 1982.

COPIES FURNISHED:

Stephanie A. Daniel, Esquire Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32301

Albert J. Zemlock, Esquire

19 West Flagler Street Miami, Florida 33130

Mr. Samuel R. Shorstein Secretary

Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32301

Mr. James Linnan Executive Director

Construction Industry Licensing Board

Department of Professional Regulation

Post Office Box 2 Jacksonville, Florida 32202

================================================================= AGENCY FINAL ORDER

=================================================================

STATE OF FLORIDA DEPARTMENT OF PROFESSIONAL REGULATION CONSTRUCTION INDUSTRY LICENSING BOARD

DEPARTMENT OF PROFESSIONAL REGULATION,

Petitioner,

vs. DPR CASE NO. 0019246

DOAH CASE NO. 82-1637

KARL F. KARLSON

SOUTHERN BILT KITCHEN AND BATHS,

Inc. CG 0001776

14600 N.W. 7th Avenue North Miami, Fl. 33168

MAURY DANIEL CONSTRUCTION COMPANY CG CB010776

11166 Deerfield Road

Cincinnati, Oh 45242

Respondent.

/

FINAL ORDER

This matter came an to be heard by the Construction Industry Licensing Board on March 10, 1983, in Jacksonville, Florida. An administrative hearing held pursuant to Section 120.57(1), Florida Statutes, resulted in the issuance of a Recommended Order (attached hereto as Exhibit A), which was reviewed by the Board. Petitioner filed exceptions to said order. Upon consideration of the Recommended Order, Exceptions and following a review of the complete record in the proceeding, it is ORDERED:

1. The findings of fact in the Recommended Order are approved and adopted and incorporated herein by reference.

   
   

2. The conclusions of law in the Recommended Order are approved and adopted and incorporated herein by reference. The Board rejects Petitioner's exceptions to the conclusions of law.

   
   

3. The recommendation of penalty of the Recommended Order is approved and adopted and incorporated herein by reference. The Board rejects the exceptions filed by Petitioner.

THEREFORE. it is Ordered and Adjudged that the certified general contractor's licenses of the Respondent be and are hereby suspended for a period of sixty (60) days and that the Respondent pay a $1,000 administrative fine.

DONE and ORDERED this 29th day of March, 1983.

FLORIDA CONSTRUCTION INDUSTRY LICENSING BOARD

John Henry Jones, Chairman

Docket for Case No: 82-001637

Orders for Case No: 82-001637