STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF PROFESSIONAL )

REGULATION, CONSTRUCTION )

INDUSTRY LICENSING BOARD, )

)

Petitioner, )

)

vs. ) CASE NO. 83-1230

)

DAMIAN C. DAVIS, )

)

Respondent. )

)

RECOMMENDED ORDER

This case was heard pursuant to notice on June 28, 1983, in Tampa, Florida, by Stephen F. Dean, assigned Hearing Officer of the Division of Administrative Hearings. This case was presented on an Administrative Complaint which alleged that the Respondent, Damian C. Davis, violated Section 489.129(1)(f), Florida Statutes, by knowingly combining or conspiring with an uncertified and unregistered person to allow his certificate to be used by said uncertified and unregistered person with the intent to evade the provisions of Chapter 489, Florida Statutes; violated Section 489.129(1)(g), Florida Statutes, in that he acted as a contractor other than in the name set forth on his certificate; and violated Section 489.129(1)(j), Florida Statutes, by contracting in the name of a business entity without first having qualified the name of the business entity with the Construction Industry Licensing Board.

APPEARANCES

For Petitioner: Stephanie A. Daniel, Esquire

Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32301

For Respondent: Damian C. Davis, pro se

1310 West Charter Street Tampa, Florida 33602

ISSUES

The issues presented are as follow:

1. Did the Respondent allow his registration to be used by an unlicensed and unregistered person to evade the provisions of Chapter 489, Florida Statutes?

   
   

2. Did the Respondent combine and conspire to allow his registration to be used by an unlicensed or unregistered person to evade the provisions of Chapter 489, Florida Statutes?

3. Did the Respondent engage in contracting in a name other than set forth on his certificate?

   
   

4. Did the Respondent engage in contracting in a name of a business entity without first qualifying that business entity with the Construction Industry Licensing Board?

The parties submitted post hearing findings of fact in the form of a proposed recommended order and correspondence. To the extent that the proposed findings of fact have not been included in the factual findings in this order, they are specifically rejected as being irrelevant, not being based upon the most credible evidence, or not being a finding of fact.

FINDINGS OF FACT

1. The Respondent, Damian C. Davis, is a certified general contractor holding license number CG C007059 issued by the Construction Industry Licensing Board through the Department of Professional Regulation.

   
   

2. On or about August 29, 1980, the Respondent obtained building permit number B 45383 from the City of Tampa Building Department for construction to be performed by George Lacey at 910 East Osborne Street, Tampa, Florida, the residence of Martha Smith George Lacey was at that time uncertified and unregistered and was the contractor in fact on the work to be done for Martha Smith at 910 East Osborne Street in Tampa.

   
   

3. The Respondent arranged for all building inspections by inspectors of the City of Tampa and was on the building site when said inspections were conducted. All work was approved by building inspectors of the City of Tampa, and there were no code problems.

   
   

4. Subsequent to the completion of the work by Lacey, the owner had a problem with a leak over a sliding glass door which Lacey had contracted to repair. When this matter was brought to the Respondent's attention by officials of the Tampa Building Department, the Respondent fixed the leak to the owner's complete satisfaction.

   
   

5. The building permit obtained by the Respondent was issued in the Respondent's name. All work the Respondent performed was done in the Respondent's name.

   
   

6. The Respondent and Lacey frequently worked together in joint ventures; however, this was not such a project.

   
   

   CONCLUSIONS OF LAW

   
   

7. The Construction Industry Licensing Board has authority to discipline its registrants and licensees pursuant to the provisions of Chapter 489, Florida Statutes. This Recommended Order is entered pursuant to the authority of Section 120.57(1), Florida Statutes.

   
   

8. The facts present a simple case of the Respondent "loaning" his license to George Lacey, who was the contractor in fact on the job for which the Respondent pulled the building permit. This is a classic violation of Sections 489.129(1)(f) and (e), Florida Statutes. However, because the Respondent pulled the building permit in his own name, he did not violate Sections 489.129(1)(g) and (j), Florida Statutes.

9. In mitigation, when contacted and advised that the owner had a problem with the work which had been done on the permit he had pulled, the Respondent immediately corrected the problem to the owner's satisfaction. The owner had nothing but praise for the Respondent's handling of the matter. Further, there was a prior history of joint ventures between the Respondent and Lacey. Because of this, the Respondent did not view this instance as the "loan" of his license. The Respondent failed to realize that the effect of his conduct was to permit an unlicensed person to engage in contracting.

RECOMMENDATION

Having found the Respondent, Damian C. Davis, guilty of one count (one offense) of violating Sections 489.129(1)(e) and (f), Florida Statutes, and considering the Respondent's prompt action to satisfy the owner, it is recommended that the Respondent be given a letter of reprimand and assessed a civil penalty of $500.

DONE and RECOMMENDED this 28th day of July, 1983, in Tallahassee, Leon County, Florida.

STEPHEN F. DEAN, 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 28th day of July, 1983.

COPIES FURNISHED:

Stephanie A. Daniel, Esquire Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32301

Mr. Damian C Davis

1310 West Charter Street Tampa, Florida 33602

Frederick Roche, Secretary Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32301

James Linnan, Executive Director Construction Industry Licensing Board

Post Office Box 2 Jacksonville, Florida 32202

================================================================= AMENDMENT TO AGENCY FINAL ORDER

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

STATE OF FLORIDA

DEPARTMENT OF PROFESSIONAL REGULATION CONSTRUCTION INDUSTRY LICENSING BOARD

DEPARTMENT OF PROFESSIONAL REGULATION,

Petitioner,

vs. CASE NO. 19791

DOAH CASE NO. 83-1230

DAMIAN C. DAVIS DAVIS & SEXTON, INC.

1302 West Sligh Avenue Tampa, Florida 33604,

Respondent.

/

AMENDMENT TO FINAL ORDER

The Final Order entered on September 22, 1983 in this cause incorrectly stated the fine imposed upon the Respondent. The correct amount is $250.00, to be paid within 30 days of this Order.

DONE AND ORDERED in Jacksonville, Florida, this 30th day of November , 1983.

FLORIDA CONSTRUCTION INDUSTRY LICENSING BOARD

Henry Bachara, Chairman

Docket for Case No: 83-001230

Orders for Case No: 83-001230