STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

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

)

Petitioner, )

)

vs. ) CASE NOS. 82-1655

)

WILLIAM DOE, )

)

Respondent. )

)

RECOMMENDED ORDER

A formal hearing was held in this matter before Marvin E. Chavis, duly designated Hearing Officer of the Division of Administrative Hearings, on October 26, 1983, in Fort Lauderdale, Florida.

APPEARANCES

For Petitioner: Michael J. Cohen, Esquire

Suite 101, Kristin Building

2715 East Oakland Park Boulevard Fort Lauderdale, Florida 33306

For Respondent: William Doe, pro se

1407 Northwest 10th Place

Fort Lauderdale, Florida 33312 ISSUES AND BACKGROUND

This case concerns the issue of whether Respondent's license as a registered roofing contractor should be suspended, revoked or otherwise disciplined for multiple violations of Section 489.129, Florida Statutes (1979). At the formal hearing, the Petitioner called as witnesses Alma G. Reffett, Kay Jenkins, William F. Bennett and the Respondent, William Doe. The Petitioner offered and had admitted into evidence seven exhibits and the Respondent offered no exhibits into evidence. Counsel for the Petitioner and the Respondent submitted proposed findings of fact and conclusions of law for consideration by the Hearing Officer. To the extent that those proposed findings and conclusions are inconsistent with this order, they were rejected as not being supported by the evidence or as unnecessary to the resolution of this cause.

FINDINGS OF FACT

1. At all times material to this action, William Doe has been licensed as a registered roofing contractor holding license No. RC0027147.

2. Mr. Willie Holmes was first licensed as a registered roofing contractor in August 1981 and holds license No. RC0040336, which is active for the 1981-83 licensing period.

   
   

3. On September 19, 1979, Kay Jenkins entered into a contract with Willie Holmes d/b/a Holmes & Son Roof Service for the replacement of her tile roof at her residence located at 1212 S.W. 15th Avenue, Fort Lauderdale, Florida. The total price for the roof replacement was $3,539.00. On September 18, 1979, Ms. Jenkins paid Mr. Holmes a $1,000 down payment.

   
   

4. On approximately October 1, 1979, the work began on Ms. Jenkins' roof. After the work began, Mr. Doe became involved. Mr. Doe, beginning on the first day of work, was on the job. However, when the tile was placed on the roof, only Mr. Holmes was present. Mr. Doe removed the old roof and put the tar and gravel on the roof.

   
   

5. On December 19, 1979, the building permit was obtained for this job by William Doe. The building permit listed William Doe & Sons Roofing Co. as the contractor and is signed by William Doe.

   
   

6. The tile was installed in January 1980 and during the work Ms. Jenkins complained to Mr. Holmes that she did not feel the tile was being installed properly. The roof was completed at the end of January 1980. Mr. Holmes corrected some of the problems with the tile by chiseling away concrete from the tile. Ms. Jenkins refused to pay $1,000 of the original contract price. The remaining balance of $1,000 was never paid.

   
   

7. After the roof was completed, it leaked. Mr. Homes came out and fixed the leaks. Later, other leaks developed. Mr. Doe's brother came out several times and in October 1980 all leaks were corrected and the roof was fine. In July 1980 Ms. Jenkins filed a complaint with the local contractor examining board.

   
   

8. Mr. Doe went out to the Jenkins' home shortly after the job was finished and checked for leaks. He and Mr. Holmes at that time did some repair work. Mr. doe then instructed his brother to go out the next time it rained and look for leaks. Mr. Doe also accompanied Mr. William F. Bennett, Chief Building Inspector, to the Jenkins' home and agreed at that time to repair the leaks. Relative to other years, 1980 was a dry year and the leaks could only be detected when it rained.

   
   

9. Mr. Doe and Mr. Holmes are friends and have worked together on other jobs. Because of the $1,000 retained by Ms. Jenkins, Mr. Doe received no money for the work he did on the job. All payments made by Ms. Jenkins were made to Mr. Holmes. In January 1980 Ms. Jenkins had the roof inspected by Building Inspection and Consulting Services, Inc., which gave her an estimate of

   $1,095.00 to correct all defects found in the new roof system.

   
   

10. Section 48-6 of the City of Fort Lauderdale Ordinances provides:

    
    

    It shall be unlawful for any person or firm to engage in the business or act in the capacity of a contractor, subcontractor, superintendent, master, or journeyman, as hereinafter defined, anywhere within the limits of the city without a current valid certificate of competency issued by the

    examining board having jurisdiction over the several trades concerned.

    
    

11. Mr. Doe was not aware in December 1979 that it was improper or unlawful for him to obtain a building permit for the Jenkins job.

    
    

    CONCLUSIONS OF LAW

    
    

12. The Division of Administrative Hearings has jurisdiction over the subject matter and the parties of this action.

    
    

13. Section 489.129, Florida Statutes (1979), empowers the Florida Construction Industry Licensing Board to suspend, revoke, or otherwise discipline the certificate or registration of a contractor found to have committed any one of those acts enumerated in Section 489.129.

    
    

14. In the instant case, Count One of the Administrative Complaint charges the Respondent with a violation of Section 489.129(1)(d), Florida Statutes (1979), which provides as a ground for disciplinary action:

    
    

    Willful or deliberate disregard and violation of the applicable building codes or laws of the state or of any municipalities or counties thereof.

    
    

    The evidence did not establish any particular building code violated by Respondent or any willful or deliberate disregard by Respondent of the local building code or ordinances. Therefore, Respondent must be found not guilty of the charge alleged in Count One.

    
    

15. Count Two of the Administrative Complaint charges Respondent with committing acts which constitute violations under Section 489.129(1)(e), (f),

    1. and (j), Florida Statutes (1979). Those prohibited acts include:

       
       

       1. Aiding or abetting any uncertified or unregistered person to evade any provision of this act.

       2. 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.

       3. 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.

    * * *

    (j) Failure in any material respect to comply with the provisions of this act.

    
    

    The provision of Chapter 489 which Respondent has allegedly failed to comply with is Section 489.119(2) and (3), Florida Statutes (1979), which provides:

    
    

    (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.

    
    

16. The facts in this case reveal that on December 19, 1979, the Respondent obtained a building permit for the Jenkins roof replacement and obtained the permit in the name of his own company, William Doe & Sons Roofing Company. The actual contractor on the job was Mr. Holmes. At the time the building permit was obtained, Mr. Holmes was not licensed as a roofing contractor. Without the aid of Mr. Doe, the contractor on the Jenkins job, Mr. Holmes, could not have obtained the necessary building permit and therefore could not have performed the work. Section 489.113(2), Florida Statutes (1979), prohibits any person from engaging in contracting in Florida without a proper license. Respondent is therefore guilty of a violation of Sections 489.129(1)(e) and (f), Florida Statutes (1979).

    
    

17. The evidence clearly established that Mr. Doe never held himself out as an agent, employee, or owner of any interest in Holmes & Sons Roof Service. He obtained the building permit in his own company's name and it was not proven that he did business in any name other than William Doe & Sons Roofing Company, a name which he had properly registered. Based upon these facts, Respondent is not guilty of a violation of Sections 489.129(1)(g) and (j), Florida Statutes (1979).

    
    

18. Count Three of the Administrative Complaint charges Respondent with violating Sections 489.129(1)(k) and (m), Florida Statutes (1979). These actions state as grounds for disciplinary action:

(k) 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 owner 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.

The evidence established that Mr. Holmes and Mr. Doe went to the Jenkins' home right after the job was completed and checked for leaks and made some repairs. Mr. Holmes then went back out several times after that initial repair visit.

Mr. Doe accompanied a building official to the Jenkins' home and sent his brother out several times to try to locate any leaks and make repairs. All

leaks were repaired in October 1980. All of these attempts at repair were made in spite of the fact that the owner, Ms. Jenkins, had held back $1,000 of the contract price for the purpose of correcting any defects. In light of Ms.

Jenkins' refusal to pay the balance because she desired to use that amount for corrections, it is very questionable whether Mr. Holmes or Mr. Doe had any obligation to return and make repairs. The evidence clearly established that Mr. Doe was not guilty of violating Sections 489.129(k) and (m), Florida Statutes (1979), and therefore must be found not guilty of Count Three of the Administrative Complaint.

RECOMMENDATION

Based upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED that a final order be entered finding Respondent guilty of the charge alleged in Count Two as stated above and imposing an administrative fine of $200. It is further recommended that Respondent be found not guilty of Counts One and Three and that those counts be dismissed.

DONE AND ORDERED this 30th day of March 1984 in Tallahassee, Florida.

MARVIN E. CHAVIS

Hearing Officer

Division of Administrative Hearings The Oakland Building

2009 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 30th day of March 1984.

COPIES FURNISHED:

Michael J. Cohen, Esquire Suite 101, Kristin Building

2715 East Oakland Park Boulevard Fort Lauderdale, Florida 33306

Mr. William Doe 1407 NW 10th Place

Fort Lauderdale, Florida 33311

James Linnan, Executive Director Construction Industry Licensing Board Post Office Box 2

Jacksonville, Florida 32202

Fred M. Roche, Secretary

Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32301

Docket for Case No: 82-001655

Orders for Case No: 82-001655