STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF PROFESSIONAL )

REGULATION, CONSTRUCTION )

INDUSTRY LICENSING BOARD )

)

Petitioner, )

)

vs. ) CASE NO. 82-2386

)

HENRY L. HUGGINS )

)

Respondent. )

)

RECOMMENDED ORDER

This case was heard before the Division of Administrative Hearings by its designated Hearing Officer Michael Pearce Dodson, on June 8, 1983 in Orlando, Florida. The following appearances were entered:

APPEARANCES

For Petitioner: Stephanie A. Daniel, Esquire

Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32301

For Respondent: Chandler R. Muller, Esquire

Warren W. Lindsey, Esquire MULLER AND KIRKCONNELL, P.A.

Post Office Box 2728

Winter Park, Florida 32790 BACKGROUND

These proceedings began on July 12, 1982 when the Secretary of the Department of Professional Regulation signed an Administrative Complaint which alleged that Respondent aided or abetted an unlicensed person to evade the provisions of the contracting license law. Respondent Henry L. Huggins requested a formal administrative hearing on the allegations in the Administrative Complaint and on August 30, 1982 the case was forwarded to the Division of Administrative Hearings for the assignment of a Hearing Officer and the scheduling of a final hearing. That hearing which was initially set on November 15, 1982 was continued several times at the request of both Petitioner and Respondent. During the continuances they conducted settlement negotiations.

Since it was initially filed the Administrative Complaint has been amended twice. Count II has been added to allege that Respondent engaged in the business of contracting without being duly registered or certified and Count II was later amended to include an allegation that because of the facts set out in the Administrative Complaint there was continued evidence that Respondent was guilty of misconduct or deceit in the practice of his profession.

At the final hearing Petitioner presented the testimony of witnesses and offered Exhibits 1-9 into evidence. Exhibits 1, 2, 4, 5 and 6 were so received. A ruling on Petitioner's Exhibit 7 was reserved until this Order. The exhibit is now received into evidence. Respondent presented his omen testimony and offered Respondent's Exhibits 1 and 2 which were received into evidence.

Subsequent to the final hearing both parties have filed Proposed Recommended Orders containing proposed findings of fact. They have each been given careful consideration here. To the extent that the proposed findings are not reflected in this Order, they are rejected as being either not supported by the weight of credible admissible evidence, or as being irrelevant to the issues determined here. 1/

FINDINGS OF FACT

1. Respondent Henry Huggins is presently licensed by the Construction Industry Licensing Board as a certified general contractor under license number CO C003466. He first received his license in November of 1972 and has since been continuously licensed. His license was however suspended for a period of one year beginning on May 16, 1980. That suspension was by an Order of the Florida Construction Industry Licensing Board. In October of 1981 Mr. Huggins renewed his license on inactive status but changed it to active status in December 1981. His license continued to be active and he is the qualifying agent for Florida Petroleum Services, Inc., in Winter Park Florida.

   
   

2. In the fall of 1980 Mr. Albert Dupre agreed to do some home renovation work for Dr. Charles Gill at Dr. Gill's residence located at 2193 Turkey Run, Winter Park, Florida. Mr. Dupre completed the work and shortly thereafter in the spring of 1981 he and Dr. Gill entered into another oral contract whereby Mr. Dupre would construct an upstairs addition to Dr. Gill's home. The addition included the installation of a bathroom and another bedroom. In exchange for these services Dr. Gill "traded off" dental work for Mr. Dupre's wife and agreed to pay an additional $12,000 or $13,000.

   
   

3. At Mr. Dupre's request the construction permit for the upstairs addition was obtained by the Respondent Henry L. Huggins. At all times material Albert Dupre has held no contracting licenses authorizing him to individually perform the work called for by his agreement with Dr. Gill. During the time in question, that is April 1981, Respondent did not himself have an active contractor's license due to his suspension by the Construction Industry Licensing Board. He was authorized by the qualifying agent for Roberts Insurance Contractors to obtain building permits under the qualifying agent's license in order to undertake building projects for Roberts.

   
   

4. Roberts Insurance Contractors was not a party to the agreement between Dr. Gill and Mr. Dupre for the up stairs addition to Dr. Gill's home. On April 7, 1981 Respondent obtained building permit number 7487 from the City of Winter Park, Florida, which authorized the construction of a bedroom and bathroom addition on the property of Dr. Charles Gill in Winter Park, Florida. Respondent obtained that permit on behalf of Mr. Dupre because of their friendship and their previous business associations dating back to the mid- 1970's

   
   

5. Respondent did not supervise or otherwise participate in the construction of Dr. Gill's addition until the work was complete and Dr. Gill made a complaint to several regulatory bodies about Mr. Dupre's work. This

   complaint centered around the earlier air conditioning project; but once notified that there were difficulties concerning the project, Respondent, along with Mr. Dupre, completed all unfinished items and corrected all defects. As a result of Respondent's willingness to remedy those defects Dr. Gill has requested that all charges against Mr. Huggins here be dropped.

   
   

   CONCLUSIONS OF LAW

   
   

6. The Division of Administrative Hearings has jurisdiction over the parties and the subject matter of this case. Sections 120.57(1) and 455.225(4), Florida Statutes (1983).

   
   

7. The Administrative Complaint, as amended, alleges that Respondent has subjected himself to discipline by violating the terms of Section 489.129(1), Florida Statutes (1979) which provides in part:

   
   

   1. The board may revoke, suspend, or

      deny the issuance or renewal of the certi- ficate or registration of a contractor or impose an administrative fine not to ex- ceed $1,000, place the contractor on pro bation, reprimand or censure, a contractor if the contractor is found guilty of any of the following acts:

      * * *

      (e) Aiding or abetting any uncertified or unregistered person to evade any pro- vision of this act.

      * * *

      (j) Failure in any material respect

      to comply with the provisions of this act.

      * * *

      (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.

      
      

8. Petitioner has proven a violation of paragraph (e) above as alleged in the Amended Administrative Complaint. Section 489.117, Florida Statutes (1979) provides that any person engaging in the business of contracting (with a few exceptions not material here) shall be registered or certified by the Construction Industry Licensing Board. Mr. Dupre was engaging in the business of contracting when he constructed the second story addition to Dr. Gill's residence. Mr. Dupre was not licensed, but Mr. Huggins obtained the construction permit from the City of Winter Park in order to enable Mr. Dupre to perform the project. In this manner, Mr. Huggins aided or abetted Mr. Dupre in evading the provisions of Chapter 489, Florida Statutes (1979).

   
   

9. Paragraph (j) of Section 489.129, Florida Statutes (1979) provides grounds for discipline if the license holder fails to comply with the provisions of Chapter 489. Because paragraph (e) above makes it a disciplinary offense to aid or abet an uncertified or unregistered person to evade the provisions of this chapter, I conclude that acting contrary to paragraph (e) is a failure in a material respect to comply with Chapter 489. When Respondent pulled the permit for Mr. Dupre he violated paragraph (j).

10. The Amended Administrative Complaint also charges Respondent with a violation of paragraph (m) in that he is alleged to be guilty of misconduct in the practice of contracting. This charge against Respondent must fail. There is no evidence that Respondent himself was engaging in the practice of contracting when, on behalf of Mr. Dupre, he secured the construction permit from the City of Winter Park. Had Respondent been engaging in the business of contracting this would be an entirely different case. The prosecution would be for contracting while having his license suspended; not for aiding an unlicensed person to contract. While Respondent certainly was guilty of misconduct relating to the business of contracting, he was not in the practice of contracting on April of 1981 with respect to Dr. Gill's house addition.

    
    

11. Respondent's violation of Chapter 489 is not an extraordinarily egregious one. In the end Dr. Gill was not damaged. He wrote a letter to the Department requesting that all charges against Mr. Huggins be dropped. The evidence is also clear chat Mr. Huggins did not pull the construction permit for any wicked reason. He did it out of a misguided sense of friendship. Nevertheless his error, however venial, is a violation of Chapter 489, Florida Statutes. For these reasons an appropriate penalty for his transgression is a suspension of his license for a period of two (2) years.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions Law, it is RECOMMENDED:

That the Construction Industry Licensing Board enter a Final Order suspending the license of Henry L. Huggins as a certified general contractor for a period of two (2) years from the date of the Board's Final Order.

DONE and RECOMMENDED this 17th day of February, 1984, in Tallahassee, Florida.

MICHAEL PEARCE DODSON

Hearing Officer

Division of Administrative Hearings The Oakland Building

2009 Apalachee Parkway

Tallahassee, Florida 32301

(904) 488-9673

Filed with the Clerk of the Division of Administrative Hearings this 17th day of February, 1984.

ENDNOTE

1/ Except to the extent consistent with these findings of fact, the Department's proposed findings of fact are rejected as either being not supported by competent substantial evidence, being contrary to the greater weight of the evidence, or being irrelevant.

COPIES FURNISHED:

Stephanie A. Daniel, Esquire Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32301

Chandler R. Muller, Esquire and Warren U. Lindsey, Esquire MULLER AND KIRKCONNELL, P.A.

Post Office Box 2728

Winter Park, Florida 32790

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

Jacksonville, Florida 32202

Frederick Roche, Secretary Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32301

Docket for Case No: 82-002386

Orders for Case No: 82-002386