STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

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

)

Petitioner, )

)

vs. ) CASE NO. 82-1999

)

SAMMIE H. EVANS, )

)

Respondent. )

)

RECOMMENDED ORDER

This matter came on for hearing on November 4, 1982, in Lake City, Florida, before the Division of Administrative Hearings and its duly appointed Hearing Officer, R. T. Carpenter. The parties were represented by:

APPEARANCES

For Petitioner: John O. Williams, Esquire

547 North Monroe Street Tallahassee, Florida 32301

For Respondent: M. Blair Payne, Esquire

327 North Hernando Street Post Office Drawer 1707 Lake City, Florida 32055

ISSUE

This matter arose on Petitioner's Amended Administrative Complaint which charges Respondent with aiding an unlicensed person to evade Florida contracting licensing law and with conspiracy in using his general contractor's license to further such unlawful purpose. The parties submitted proposed findings of fact which have been incorporated herein to the extent they are relevant and consistent with the evidence.

FINDINGS OF FACT

1. Respondent is a registered general contractor, having been issued license number RG 0013006.

   
   

2. On January 6, 1978, Respondent obtained Dixie County building permit No. 335 for the construction of Evans Square Shopping Center located in Cross City, Florida.

   
   

3. After purchasing the raw land and securing the building permit, Respondent was unable to borrow the funds needed for construction of the

   shopping center, and thereafter sold his interest in the project to Allied American Properties of Florida, Inc. (Allied).

   
   

4. On May 15, 1978, Respondent entered into a contract with Allied to construct the Evans Square Shopping Center.

   
   

5. On May 22, 1978, Respondent entered into a con- tract with Raymond H. Moody, individually, and Florida Gulf Coast Construction Co., Inc., acting by and through its President, Raymond H. Moody, who were to perform the actual construction of the Evans Square Shopping Center.

   
   

6. At the time of contracting, Moody and Florida Gulf Coast Construction Co., Inc., were unlicensed to perform the type of construction outlined in the contract. Florida Gulf Coast Construction Co., Inc., eventually obtained proper licensure but did so subsequent to the period at issue here.

   
   

7. In the contract agreement with Florida Gulf Coast Construction Co., Inc., and Moody, Respondent agreed that he would assist in obtaining necessary permits and local government services required for the construction of the Evans Square Shopping Center.

   
   

8. Subsequent to the signing of the May 22, 1978, contract, Respondent learned from Moody that neither he nor Florida Gulf Coast Construction Co., Inc., was properly licensed to perform the type of construction for which they had contracted. Respondent took no immediate action based on this information.

   
   

9. Moody and/or Florida Gulf Coast Construction Co., Inc., continued to perform construction activities with the use of Respondent's building permit and contractor's license.

   
   

10. Respondent received in excess of $50,000.00 with regard to the May 22, 1978, contract which included payment for the building permit he had previously obtained. He did not, however, receive reimbursement for the several hundred thousand dollars he had invested in this project before the sale to Allied.

    
    

    CONCLUSIONS OF LAW

    
    

11. Section 489.129, Florida Statutes (1979), 1/ provides in part:

    
    

    1. The board may revoke, suspend, or deny the issuance or renewal of the certificate or regis- tration 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. 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.

          
          

12. Respondent aided Raymond H. Moody and Florida Gulf Coast Construction Company, Inc., for an apparently brief period to continue construction of the Evans Square Shopping Center after he learned that neither the individual nor the company held the required contractor's license. His admitted lapse is at least partly attributable to the fear that his investment in this project would be lost if he disrupted progress over the license issue. After realizing he would indeed lose most of his investment, Respondent disassociated himself from the enterprise.

    
    

13. Respondent knew that Moody and Florida Gulf Coast Construction Company, Inc. were unlicensed, but continued to allow them to operate under his building permit and contractor's license. In so doing, Respondent was guilty of the conduct condemned in both Subsections 489.129(1).(e) and 489.129(4)(f), quoted above.

RECOMMENDATION

From the foregoing, it if

RECOMMENDED that Petitioner enter a Final Order finding Respondent guilty as charged in the Amended Administrative Complaint and suspending his general contractor's license for a period of one year.

DONE and ENTERED this 30th day of December, 1982, in Tallahassee, Florida.

R. T. CARPENTER, 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 30th day of December, 1982.

ENDNOTE

1/ The pertinent provisions were previously set forth in Subsections 468.112(2)(b) and (c) , F.S. (Supp. 1978).

COPIES FURNISHED:

John O. Williams, Esquire

547 North Monroe Street Tallahassee, Florida 32301

M. Blair Payne, Esquire

327 North Hernando Street Post Office Drawer 1707 Lake City, Florida 32055

James Linnan, Executive Director Florida Construction

Industry Licensing Board

P.O. Box 2 Jacksonville, Florida

Samuel R. Shorstein, Secretary Dept. of Professional Reg.

130 North Monroe Street Tallahassee, Florida 32301

Docket for Case No: 82-001999

Orders for Case No: 82-001999