STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

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

)

Petitioner, )

)

vs. ) CASE NO. 83-037

)

FREDERICK G. GERVIA, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was held in this matter before Marvin

1. Chavis, duly designated Hearing Officer of the Division of Administrative Hearings on May 18, 1983, in Miami, Florida.

   
   

   APPEARANCES

   
   

   For Petitioner: Harold M. Braxton, Esquire

   45 Southwest 36th Court Miami, Florida 33135

   
   

   For Respondent: Frederick G. Gervia

   2810 Southwest 78th Court Miami, Florida 33155

   
   

   ISSUES AND BACKGROUND

   
   

   This case concerns the issue of whether the Respondent's license as a certified general contractor should be suspended, revoked, or otherwise disciplined for multiple violations of Chapter 489 of the Florida Statutes. Specifically, the Respondent is charged with having been found guilty of a crime which relates directly to the practice of contracting in violation of 489.129(1)(b)(1979); willfully or deliberately disregarding and violating the applicable building code in violation of Florida Statute 489.129(1)(d)(1979); aiding and abetting an unlicensed person in his evasion of the Contracting Practice Act in violation of 489.129 (1)(e)(1979); knowingly combining or conspiring with an unlicensed person by allowing Respondent's license to be used by said unlicensed person with the intent to evade the provisions of the Contracting Practice Act in violation of Florida Statute 489.129 (1)(f)(1979); and, violating Florida Statute 489.129(1)(j)(1979) by failing to renew his license every two years and by failing to supervise a construction project.

   
   

   At the formal hearing, the Petitioner called as witnesses the Respondent, Frederick G. Gervia, Leroy S. Duncan, John Knezevich, and Evodio Llevado.

   Respondent testified on his own behalf and also called as a witness Mr. L. Perry

   Curtis. Petitioner offered and had admitted without objection eight exhibits. The Respondent offered no exhibits into evidence.

   
   

   FINDINGS OF FACT

   
   

   1. The Respondent is a certified general contractor holding License No. CG C003114. Respondent is also a registered general contractor having been issued License No. RG 0009802. Respondent's license CGC003114 was delinquent as of December 7, 1981, and had not been renewed for the 1981-83 licensing period.

      
      

   2. On October 11, 1981, Fiberglass Pools of South Florida, Inc. entered into a contract with Mr. Leroy Duncan to construct a fiberglass pool at Mr. Duncan's residence located at 1385 N.W. 192nd Terrace, Miami, Florida.

      
      

   3. On November 10, 1981, Respondent applied for a building permit (see Petitioner's Exhibit 2) for the pool construction at Mr. Duncan's home. The Respondent signed the application in the block designated "Signature of Qualifier or Owner-Builder". The application named Gervia Construction Company, address 2810 S.W. 78th Court as the building contractor. Gervia Construction Company was neither the general contractor nor a subcontractor in connection with the construction of the Duncan pool.

      
      

   4. At the time that he applied for the building permit, Respondent was qualifying agent for Gervia Construction Company, 2810 S.W. 78th Court, Miami, Florida 33155. The Respondent has made no request to qualify under either of his licenses as the qualifying agent for Fiberglass Pools of South Florida, Inc. Neither Fiberglass Pools of South Florida, Inc. or its principals were licensed.

      
      

   5. Prior to and during construction, Mr. Leroy Duncan had no dealings at all with the Respondent or Gervia Construction Company. Mr. Duncan's dealings were primarily with Douglas Lake of Fiberglass Pools of South Florida, Inc. Mr. Duncan observed a substantial portion of the construction, but was not present during the form work for the deck. At no time did Mr. Duncan observe the Respondent working on the construction of the pool at his home.

      
      

   6. The only work performed by Mr. Gervia on the Duncan pool contract was to check the plumbing prior to the county inspection. The pool was actually installed by two principals of Fiberglass Pools of South Florida, Inc. and two helpers. These persons were neither supervised nor controlled by the Respondent during construction.

      
      

   7. During the time period October 11, 1980, through initial construction of the Duncan pool, the Respondent was employed by Fiberglass Pools of South Florida, Inc. at a salary of $350 per week. One of his duties was to pull permits. Although the Respondent was also hired to supervise all field construction, at the time the Duncan pool was contracted for and constructed, his supervisory status had been eliminated. The Respondent performed no supervisory duties in connection with the Duncan pool construction.

      
      

   8. All payments from Mr. Duncan, including two checks totaling $950 and a cash payment of $6,230 were made to Fiberglass Pools of South Florida, Inc. No payments were made to the Respondent or Gervia Construction Company. Mr. Gervia did not hire or fire any of the persons who worked on the Duncan pool and kept no records relating to payments received or monies spent on the job at the Duncan residence.

   9. Subsequent to the pool being completed, substantial problems and flaws in the Duncan pool developed. The following problems were present in the pool: (See Petitioner's Exhibit 5.)

      
      

      1. Seven patches on South wall, below water line, are rough, discolored and flaking. The largest two are approximately 12" in diameter and 12" x 4".

      2. There is a very small depression in the shallow end seat.

      3. The pool flange at the ladder is full of depres- sions, making the edge very rough.

      4. Flange cracks at three corners are excessive and need repair. The Southwest corner has a vertical crack down the wall about 1'. See exhibits II, III, IV, and V.

      5. The pool wall thickness at corners was 3/8" but north, south and west wall were 7/32" to 1/4" thick.

      6. Several dark circles about 2" in diameter are located around perimeter flange and show where holes were drilled and patched poorly. . .

1. Four hydrostatic valves seem high to effectively counteract buoyancy, but approved plan approves 1' above floor at deep end plus one valve in main

   drain [could not check with pool full]. See notes 9, 10 & 11 - William Meyers plan.

2. 13' x 30' x 72" pool actually measures 12'-11" x 29'-8" x 71 1/8" deep.

3. Vertical floor variations in shallow end are about

   1 3/4". Seems depressions occur between ribs.

4. A small bow occurs at Northwest corner near surface of water. Area covers about 18" square.

5. Some concrete voids occur beneath pool lip.

1. Pursuant to an agreement with Mr. Duncan, the Respondent and Fiberglass Pools of South Florida, Inc. have repaired those items listed in paragraph 9 in an excellent manner and to the full satisfaction of the owner, Leroy Duncan.

   
   

2. On November 17, 1982, the Respondent was convicted in the County Court of Dade County, Florida, of unlawfully aiding and abetting an unlicensed contractor in violation of Section 10-22(h) of the Metropolitan Dade County Code. Adjudication of guilt was withheld and Respondent was required to pay a

   $500 fine.

   
   

3. The Respondent has been a licensed certified general contractor in the State of Florida since November, 1971, and has had no other charges or actions against his license. There have also been no other complaints filed with the Petitioner regarding the Respondent.

   
   

   CONCLUSIONS OF LAW

   
   

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

5. Florida Statute 489.129 empowers the Construction Industry Licensing Board to suspend, or revoke, or otherwise discipline the license of a contractor who commits any of the enumerated acts set forth in Section 489.129.

   
   

6. As a grounds for discipline, Florida Statute 489.129 (1)(b) provides:

   
   

   Being convicted or found guilty, regardless of adjudication, of a crime in any juris- diction, which directly relates to the practice of contracting or the ability to practice contracting.

   
   

   The conviction of Respondent on November 17, 1982, was a conviction by the County Court in and for Dade County, Florida, of unlawfully aiding and abetting an unlicensed contractor on November 13, 1981, in violation of the Metropolitan Dade County Code, Section 10-22(h). That conviction arose out of the Respondent's actions in connection with the Duncan pool construction and is a conviction of a crime which directly relates to the practice of contracting.

   Such conviction, therefore, constitutes a violation of Florida Statute 489.129(1)(b)(1979) as alleged in the administrative complaint.

   
   

7. On November 10, 1981, Respondent applied for a building permit for the pool construction at Mr. Duncan's home. The Respondent signed the application as the qualifier and entered the name of Gervia Construction Company as the contractor on the job. Neither the Respondent nor Gervia Construction Company exercised any control or supervision over the construction of the pool at the Duncan home and the sole purpose of the Respondent applying for the permit was to enable Fiberglass Pools of South Florida, Inc. and its principals to obtain a permit and perform contracting work for Mr. Duncan in the construction of his pool. Neither the Respondent nor Gervia Construction Company was the contractor on the job. The work and construction was actually performed by two principals of Fiberglass Pools of South Florida, Inc. and two helpers. The actions of the Respondent enabled unlicensed individuals and an unlicensed corporation to enter into a contract and construct a pool at the Duncan residence.

   
   

8. Florida Statute 489.129(1)(d), (e), and (f)(1979) provide that a contractor's license may be disciplined for the following acts:

   
   

   1. Willful or deliberate disregard and violation of the applicable build- ing codes or laws of the state or of any municipalities or counties thereof.

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

   3. 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.

      
      

      The Metropolitan Dade County Code Section 10-22(h)(3) makes it unlawful for any contractor to obtain a permit for any work in which he does not actually supervise, direct, and control the construction or installation covered by such permit. The actions of the Respondent in allowing his license to be used for

      the purpose of obtaining a permit which enabled unlicensed persons to contract and perform construction constitutes a violation of Florida Statute 489.129(1)(d), (e), and (f)(1979) as alleged in the administrative complaint.

      
      

9. Respondent is also charged with violating 489.129 (1)(j)(1979) which provides that failure in any material respect to comply with the provisions of Chapter 489 will serve as a grounds for discipline. Florida Statute 489.115(3)(a) requires that a contractor renew his license every two years. By failing to renew his license for the 1981 - 1983 licensing period, Respondent has violated Florida Statute 489.115(3)(a) and has thus violated Florida Statute 489.129(1)(j)(1979) as alleged in the administrative complaint. The evidence failed to show a violation of Florida Statute 489.119(2) as alleged in the administrative complaint.

   
   

10. Penalty: License revocation is an extreme and drastic penalty which should be applied in the most flagrant cases. Taylor v. State Beverage Department, 194 So.2d 321 (Fla. 2d DCA 1962). In the instant case, although there are multiple charges of violations of Section 489.129, Florida Statutes, these actually arise out of one wrongful act. This was the action of Mr. Gervia, the Respondent, in using his license to obtain a permit for a job on which he was neither the contractor nor the person who would supervise and control the construction. The actual construction that was performed was defective but has been corrected and thus, the damage to Mr. Duncan has been corrected. There have been no other actions taken against the license of the Respondent during the 12 years in which he has been a licensed contractor. In light of these circumstances, an appropriate punishment in this case is a six- month suspension of the Respondent's license and a $250.00 fine.

RECOMMENDATION

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

That the Respondent be found guilty of those specific violations as set forth in the Conclusions of Law above and that his license as a certified general contractor be suspended for a period of six months and that the Respondent be required to pay an administrative fine of $250.00.

DONE and ENTERED this 20th day of July, 1983, in Tallahassee, Florida.

MARVIN E. CHAVIS, 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 20th day of July, 1983.

COPIES FURNISHED:

Harold M. Braxton, Esquire

45 Southwest 36th Court Miami, Florida 33135

Frederick G. Gervia

2810 Southwest 78th Court Miami, Florida 33155

Mr. Fred Roche Secretary

Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32301

Mr. James Linnan Executive Director Construction Industry

Licensing Board Post Office Box 2

Jacksonville, Florida 32202

Docket for Case No: 83-000037

Orders for Case No: 83-000037