STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

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

)

Petitioner, )

)

vs. ) CASE NO. 82-2484

)

JONAS C. MERRICKS, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, K. N. Ayers, held a public bearing in the above- styled case on November 30, 1982 at Clearwater, Florida.

APPEARANCES

For Petitioner: Jane E. Heerema, Esquire

217 South Adams Street Tallahassee, Florida 32302

For Respondent: Jonas C. Merricks, pro se

301 South Washington Avenue Clearwater, Florida 33516

By Administrative Complaint filed March 8, 1982, the Department of Professional Regulation, Construction Industry Licensing Board, Petitioner, seeks to revoke, suspend, or otherwise discipline the residential contractor's license of Jonas C. Merricks, Respondent. As grounds therefor it is alleged that Respondent has aided and abetted an uncertified person to evade Section 489.113(2), Florida Statutes, and that he failed to qualify J & J Building Company as a contractor.

At the hearing Petitioner called three witnesses, Respondent testified in his own behalf, and five exhibits were admitted into evidence.

Proposed findings submitted by Petitioner and not included below were not supportive of the evidence or were deemed unnecessary to the results reached.

FINDINGS OF FACT

1. At all times relevant hereto Jonas C. Merricks, Respondent, was licensed by the Construction Industry Licensing Board, Petitioner, as a residential building contractor.

   
   

2. In May 1981 Respondent was approached by John Oden regarding a building permit to add a room to the residence of Ms. Betty J. Wilson. Respondent

   testified he went to see Ms. Wilson to discuss the permit before pulling the permit; however, Ms. Wilson testified she did not see Respondent until after the word started. Regardless of the correct version Respondent pulled the permit for the construction knowing that he was not going to do the work.

   
   

3. On May 23, 1981 Ms. Wilson entered into a contract with John Oden to construct an additional room on her residence. This contract was modified on May 26, 1981 to enlarge the room two feet and it is this contract (Exhibit 3), upon which the work was done. The contract made no mention of Respondent or of J & J Building Company which is owned by Respondent. Under the terms of the contract Ms. Wilson was to pay Oden one-third when walls were up, one-third when the roof was on and the final one-third when the job was completed.

   
   

4. During the course of the construction Respondent appeared on the site a few times and straightened out existing problems. Ms. Wilson made all of her payments to Oden in accordance with the contract. However, she made the final payment before the work was completed. Her attempts to get Oden to satisfactorily complete the job were unsuccessful and Ms. Wilson complained to the Bureau of Consumer Affairs who referred her complaint to the Construction Industry Licensing Board which investigated and filed the complaint here under consideration.

   
   

5. No evidence was submitted that Respondent pulled permits for work done by J & J Building Company. Evidence was presented that J & J Building Company is not licensed by petitioner.

   
   

6. Respondent testified that he pulled the permit as a favor to Ms. Wilson and not for Oden, and that he did not know Oden had contracted with Ms. Wilson to do this job. However, Respondent did know that Oden was going to build the addition for Ms. Wilson; and, in his affidavit, Exhibit 5, Respondent acknowledged he had "helped out" Oden several times, that he was paid by Oden for work Respondent did on the premises, that payment for this work was made out to J & J Building Company, and that he supervised the work when he was on the premises.

   
   

   CONCLUSIONS OF LAW

   
   

7. The Division of Administrative Hearings has jurisdiction over the parties to, and the subject matter of, these proceedings.

   
   

8. Section 489.129(1), Florida Statutes, provides the board may discipline the license of a contractor if found guilty of:

   
   

   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.

      
      

9. In pulling the permit for the room to be added to Ms. Wilson's residence Respondent violated the above-quoted provisions of this statute. The evidence presented will not support a finding that Respondent violated Chapter

   489 by not qualifying J & J Building Company in the absence of evidence that J & J Building Company performed work for which registration is required.

   
   

10. From the evidence presented it appears that Respondent is a competent and qualified builder who misused his license to "help out" someone who was not qualified. Harsh disciplinary measures do not appear warranted. It is

RECOMMENDED that Petitioner issue a Final Order finding Respondent guilty of violating Section 489.129(1)(e) and (f), Florida Statutes, and suspend his residential contractor's license for a period of sixty (60) days.

ENTERED this 22nd day of December, 1982, in Tallahassee, Florida.

K. N. AYERS, 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 22nd day of December, 1982.

COPIES FURNISHED:

Jane E. Heerema, Esquire

217 South Adams Street Tallahassee, Florida 32302

Jonas C. Merricks

301 South Washington Avenue Clearwater, Florida 33516

Mr. James Linnan Executive Director

Construction Industry Licensing Board Post Office Box 2

Jacksonville, Florida 32202

Fred Roche, Secretary Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32301

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

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

STATE OF FLORIDA

DEPARTMENT OF PROFESSIONAL REGULATION CONSTRUCTION INDUSTRY LICENSING BOARD

DEPARTMENT OF PROFESSIONAL REGULATION,

Petitioner,

vs. CASE NO. 0017569

DOAH CASE NO. 82-2484

JONAS I. MERRICKS, PR0011360 PROSPERITY DEVELOPMENT COR- PORATION, PR A011360

301 SOUTH WASHINGTON AVENUE CLEARWATER, FLORIDA

Respondent.

/

FINAL ORDER

This matter came on to be heard by the Construction Industry Licensing Board on March 10, 1903, in Jacksonville, Florida. An administrative hearing held pursuant to Section 120.57(1), F.S. , resulted in the issuance of a Recommended Order (attached here to 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, with the exception of the Hearing Officer's conclusion that the evidence presented did not support a finding that Respondent violated Chapter 489 by his failure to qualify J & J Building Company in the absence of a showing that J & J Building Company performed work for which registration is required. The Board rejects this conclusion of law and adopts Petitioner's exception and finds that the evidence is uncontroverted that Respondent engaged in the business of contracting in the name of J & J Building Company but failed to qualify that organization with the Department. Respondent thus failed to comply with the provisions of Chapter 489, Florida Statutes, Sections 489.119(2) and (3), Florida Statutes, and thereby violated Section 489.129(1)(j), Florida Statutes.

   
   

3. The recommendation in the Recommended Order is rejected as inappropriate under the circumstances.

THEREFORE, it is ordered and adjudged that the registered residential contractor's licenses of the Respondent be and the same are hereby suspended for a period of one year 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

FILED

Department of Professional Regulation

Florida Construction Industry Licensing Board BOARD CLERK

CLERK:

Burt German DATE: 3/29/83

Docket for Case No: 82-002484

Orders for Case No: 82-002484