STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF PROFESSIONAL )

REGULATION, CONSTRUCTION )

INDUSTRY LICENSING BOARD, )

)

Petitioner, )

)

vs. ) CASE NO. 82-2858

)

DOMINIC D'ALEXANDER, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, an administrative hearing was held before Arnold H. Pollock, Hearing Officer with the Division of Administrative Hearings, at 11:00

a.m. on February 21, 1983, in Daytona Beach, Florida. The issue for determination at the hearing was whether the Respondent's license to practice contracting under the laws of the State of Florida should be suspended, revoked, or otherwise disciplined for the reasons set out in the Administrative Complaint.

APPEARANCES

For Petitioner: Charles F. Tunnicliff, Esquire

Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32301

For Respondent: Mr. Dominic D'Alexander, pro se

Post Office Box 4580

South Daytona, Florida 32021 INTRODUCTION

By Administrative Complaint dated August 26, 1982, Respondent was charged with a violation of Section 489.129(1)(e), Florida Statutes (1981), by aiding and abetting an unlicensed person to evade the statutes; Section 489.129(1)(f), by conspiring to facilitate that unlicensed person's evasion of the statutes; Section 489.129(1)(j) , by violating Sections 489.119(2) and (3), by failing to properly qualify a business; and Section 489.129(1)(g), by acting in the capacity as a contractor under a name other than that which appeared on his license.

In support of the allegations, Petitioner introduced the testimony of Anna

R. McClellan, William O. Respoli, Laurier T. Poulin, Isaac W. Johnston, Gunter

1. Bless, and Philip T. Hundemann, and Petitioner's Exhibits 1 through 15. Respondent testified in his own behalf and introduced Respondent's Exhibits A through C.

   FINDINGS OF FACT

   
   

   1. At all times pertinent to the issues in this hearing, Respondent was a licensed building contractor, whose license is No. CBC014467. His certification as an individual by the Florida Construction Industry Licensing Board was initially dated August 16, 1979. In February, 1981, he requested his second license be registered qualifying Jeff Webb Homes, Inc.; and in September, 1982, the license was changed from Jeff Webb Homes, Inc., to Intervest Construction, Inc.

      
      

   2. On April 23, 1981, Anna Ray McClellan contracted with Regency Central, Inc., for the construction and purchase of a single family residence located at Lot 5, Devonwood Subdivision, Volusia County, Florida.

      
      

   3. David L. Martin is president of Regency Central, Inc., and neither he nor Regency Central, Inc., are or have ever been registered or certified by the Florida Construction Industry Licensing Board to engage in the business of contracting in the State of Florida.

      
      

   4. On June 5, 1981, Respondent applied for a residential construction permit for Lot 5, Devonwood Subdivision, listing Regency Central, Inc., as the owner of the property, and himself, with License No. CBC014467, as the contractor.

      
      

   5. Actual contracting for the construction at Lot 5, Devonwood Subdivision, was accomplished by Regency Central, Inc. Three separate addenda to the construction/purchase contract calling for modifications to the specifications of construction were signed, not by Respondent, but by David L. Martin for Regency Central, Inc.

      
      

   6. Major subcontracts on the construction including plumbing, electrical, and heating and air conditioning, were entered into between the subcontractors and Regency Central, Inc., and not Respondent. Subcontractors looked to Regency Central for payment, and not to Respondent. A claim of lien filed on ,September 9, 1981, for central air conditioning and heating work on the property in question reflects the work was done under contract with Regency Central, Inc., David L. Martin, President.

      
      

   7. During construction of the house, Ms. McClellan visited the construction site several times a week at different hours of the day. She recalls seeing Respondent in the area only twice, the first time being the day the contract for purchase was signed, and the second being the day the slab was poured. Her dealings at the site were with the supervisor, Dan Haley, who indicated to her that he worked for Regency Central, Inc.

      
      

   8. Respondent was interviewed by Philip T. Hundemann, an investigator for the Florida Department of Professional Regulation, in late March, 1982, at Respondent's home. During the course of the interview, Respondent admitted that he met David L. Martin when Martin rented office space in a building that Respondent had constructed and owned. During the course of conversations, Martin suggested to Respondent that he, Martin, had ninety-nine lots available for building and that if Respondent would pull the construction permit for the Lot 5 project, he would get a contract from Martin to build on the other ninety- nine lots. Respondent admitted that he did not supervise the contract, that he did pull the permit, and that he was in violation of the law and had prostituted his license. His defense was, at that time, that he was hungry to get a big construction contract with Martin. Though after he pulled the permits his

      agreement was to work on the site for the rate of ten dollars per day with the supervisor, Mr. Haley, he was there only infrequently.

      
      

   9. Respondent now modifies the admissions made previously to Mr. Hundemann. He now states he was heavily involved with the construction project on a daily basis either in his office or on the construction site, not only as a contractor, but also as sales broker. While he admits what he did was in violation of the law and was foolish, he did not intend to break the law.

      
      

   10. Respondent's involvement with Ms. McClellan's project was not as contractor as indicated in the permit he pulled. He had very little contact with that project until Martin abandoned the project and left the area.

       
       

       CONCLUSIONS OF LAW

       
       

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

       
       

   12. Respondent is alleged to be in violation of Sections 489.129(1)(e), (f), (g), and (j), Florida Statutes (1981), in that he allegedly aided an unlicensed person in evasion of the Florida Statutes; knowingly conspired with Martin to facilitate Martin's evasion of the Construction Practice Act of the Florida Statutes; violated Sections 489.119 (2) and (3) in that he failed to qualify a business; and acted in the capacity of a contractor under a name other than that which appeared on his license.

       
       

   13. Section 489.129(1), Florida Statutes (1981), in its various subsections, proscribes certain conduct by contractors. Subsection (e) of that section permits disciplinary action for "[aiding or abetting any uncertified or unregistered person to evade any provision of this act."

       
       

   14. The "act" referred to consists of Sections 489.101 through 489.131, Florida Statutes (1981), which attempts to regulate the construction and home improvement industries in this state. Under the terms of the statute, each individual engaged in the business of contracting in the State shall be either certified or registered. Certification requirements are found in Section 489.111, Florida Statutes. The more restrictive and less significant registration is provided for in Section 489.117, Florida Statutes.

       
       

   15. In the instant case, the evidence fails to show that Mr. Martin, who had the money and the contracts, had the sine qua non to engage in the business of building homes for sale to the public; that is, either certification or registration. The evidence does show, however, and Mr. D'Alexander's admission to Mr. Hundemann confirms, that he, hoping to get a big construction contract from Mr. Martin, took out the permits to construct the home on Lot 5 of the project involved. This permitted construction to be commenced, and the evidence presented by the State indicates that Respondent had very little to do with it. There is little doubt that for whatever purpose, he allowed his license to front for Mr. Martin. Having done this, he cannot now avoid responsibility for his actions by claiming he was the contractor all along, when' the evidence indicates to the contrary.

   16. Subsection (f) of the statute prohibits a registrant or certified contractor from:

       
       

       Knowingly combining or conspiring with an uncertified or unregistered person by allowing one's certificate or regis- tration 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 participa- tion 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.

       
       

   17. The evidence which supports the finding that Mr. D'Alexander violated Subsection (e) of the section in question also supports a violation finding here. The subcontractors all testified that they dealt exclusively with Mr. Martin, and not at all with Respondent. Ms. McClellan dealt almost exclusively with Mr. Martin, and it was only when Martin disappeared that Respondent, realizing his license was on the line, stepped in and assumed any responsibility for Ms. McClellan's project. His testimony that he was on the site on a daily basis and heavily involved in the Devonwood project loses much of its impact when one considers his follow-on comment, "as broker in charge of sales." Unfortunately for the Respondent, he is not being evaluated on his participation as a sales manager, but as a contractor; and there is no evidence at all that, aside from pulling the permit, he exercised any control over the construction of Ms. McClellan's home. Therefore, it is clear that a violation of Subsection (f) has also been established.

       
       

   18. In Subsection (g), which reads:

       
       

       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 appli- cation for the certificate or registra- tion, or as later changed as provided in this act,

       
       

       a contractor is prohibited from acting as such under a name other than that which appeared on his license. My review of the evidence indicates that Mr. D'Alexander's license is issued in that name. The Petitioner thoroughly and effectively established that Respondent did not act as contractor on the house being built for Ms. McClellan. Having established the Respondent's culpability for a violation of the Act by not acting as contractor, it is impossible to also conclude that he acted as a contractor under Martin's company's name.

       Therefore, this allegation is deemed unsupported by the facts found.

   19. Respondent is also alleged to have violated Subsection (j), which permits discipline for "[f]ailure in any material respect to comply with the provisions of this act."

       
       

   20. The complaint in this case defines the violation here as a failure to properly qualify a business in violation of Sections 489.119(2) and (3). I must presume here that Petitioner is relying on the de facto arrangement between Martin and the Respondent to bring Respondent into Martin's future development operations, which was, presumably, the quid pro quo for the use of Respondent's license on the McClellan house. Respondent admits, when he went to work with Martin, Martin already had everything lined up with the subcontractor, supplies and the like. Working with Martin, out of Martin's office, Respondent helped choose the plans, worked on modifications, and did other things, as well. Yet, it was Martin's project, and Respondent's consideration was experience, rather than tangible compensation. Even so, the investment of Respondent's license and the expectation of future reward generated a sufficient business organization as to require compliance with the statute, which did not happen. None of the statutory requirements were met, and evidence of a violation is clear.

RECOMMENDATION

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

That Respondent's, Dominic D'Alexander's, license as a certified building contractor be suspended for one year, but that, upon the payment of a $500 administrative fine, the execution of the suspension be deferred for a period of three years, with provision for automatic recission.

RECOMMENDED this 21st day of March, 1983, in Tallahassee, Florida.

ARNOLD H. POLLOCK, 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 21st day of March, 1983.

COPIES FURNISHED:

Charles F. Tunnicliff, Esquire Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32301

Mr. Dominic D'Alexander Post Office Box 4580

South Daytona, Florida 32021

Mr. James Linnan Executive Director

Construction Industry Licensing Board Department of Professional Regulation Post Office Box 2

Jacksonville, Florida 32201

Mr. Fred Roche Secretary

Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32301

Docket for Case No: 82-002858

Orders for Case No: 82-002858