STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

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

)

Petitioner, )

)

vs. ) CASE NO. 83-3402

)

RUBEN S. ARES, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, an administrative hearing was held before Diane D. Tremor, Hearing Officer with the Division of Administrative Hearings, on April 13, 1984, in Orlando, Florida. The issue for determination in this proceeding is whether disciplinary action should be taken against respondent's license as a certified general contractor for violations of Chapter 489, Florida Statutes.

APPEARANCES

For Petitioner: Stephanie A. Daniel, Esquire

Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32301

For Respondent: Aldo Icardi, Esquire

Post Office Box 879 990 Lewis Drive

Winter Park, Florida 32790 INTRODUCTION

By an Administrative Complaint filed on September 26, 1983, respondent Ruben S. Ares was charged with violations of Section 489.119(2) and (3), and 489.129(1)(e), (f), (g) and (j), Florida Statutes (1979), in connection with the construction of four single family residences in Seminole County, Florida.

In support of the factual allegations in the Complaint, the petitioner presented the testimony of Joseph Kantor, Donald W. Flippen, Bobby J. Hunter, Sr., Susan Gertel, Geren R. Thomas and Larry W. Morrill. Petitioner's Exhibits

1 through 11 and 13 through 16 were received into evidence. Respondent testified on his own behalf and his Exhibits A and B were received into evidence.

Subsequent to the hearing, both parties submitted proposed findings of fact and proposed conclusions of law. To the extent that the parties' proposed findings of fact are not incorporated into this Recommended Order, they are rejected as being either not supported by competent substantial evidence adduced

at the hearing, irrelevant or immaterial to the issues in dispute or as constituting legal argument as opposed to findings of fact.

FINDINGS OF FACT

1. Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant facts are found:

   
   

2. At all times relevant to this proceeding, respondent Ruben S. Ares was a certified general contractor in the State of Florida holding license number CG CO 14769.

   
   

3. Sentinel Building Company of Central Florida, Inc. was engaged in the business of building residential homes for sale. It was the practice of Sentinel Building to buy the land, engage the services of a general contractor to obtain a building permit and help in the supervision and consultation on construction and sell the hones built to others. The contractors were paid a fee of between $250 and $500 per residence for obtaining permits and providing consultation and services. The Vice-President of Sentinel Building was responsible for hiring and paying subcontractors and suppliers. Sentinel Building was not a Florida licensed general contractor, nor was it qualified by respondent or other Florida registered or certified licensee to engage in the business or contracting in Florida.

   
   

4. Respondent Ares was not an officer, stockholder, member of the board of directors or employee of Sentinel Building Company. In 1980, respondent entered into an agreement with Sentinel Building to act as the general contractor for the con- struction of at least four residences. His responsibilities were to supervise the construction of the hones and obtain all necessary permits, including the original building permit and the final certificate of occupancy. The responsibility for engaging subcontractors and ordering and purchasing materials and supplies remained with Sentinel Building Company. Respondent was paid a fixed fee of $350 per house.

   
   

5. During the period of time in which four residences in Seminole County were constructed, respondent held another full time job with a building company for which he worked 43 to 44 hours per week. His activity with Sentinel Building consisted of obtaining permits and periodic checks on the construction work. According to respondent, his inspections on construction activity occurred once every three to ten days and consumed approximately too to four hours of respondent's time per week.

   
   

6. In 1980 and 1981, respondent applied for and obtained building permits for four single-family residences in Delmar Estates, Seminole County. The applications and permits listed Sentinel Building as the owner of the property and respondent Ruben S. Ares as the contractor. At least one of the four homes was under a contract of sale prior to construction. Three of the four purchasers were under the impression that the homes were built by Sentinel Building. None of the three had ever met respondent Ares, nor were they aware that he was the general contractor.

   
   

   CONCLUSIONS OF LAW

   
   

7. Respondent is charged with violations of Sections 489.119 (2) and (3) and 489.129(1)(e), (f), (g) and (j), Florida Statutes, in connection with his activities with Sentinel Building Company of Central Florida, Inc. The Construction Industry Licensing Board has the authority to revoke, suspend or

   otherwise discipline the certificate or registration of a contractor if he is found guilty of violating any of the provisions of Section 489.128(1), Florida Statutes, but bears the burden of proving its charges by competent substantial evidence.

   
   

8. Section 489.129(1)(j) makes failure to comply with the provisions of Chapter 489 grounds for disciplinary action. Petitioner charges that respondent failed to qualify a corporation, Sentinel Building, prior to engaging in the business of contracting thereunder, in violation of Section 489.119(2) and (3), Florida Statutes. Those statutory provisions require a business organization proposing to engage in contracting as a partnership, corporation, business trust or other legal entity to apply, through a qualifying agent, for registration or certification. Subsection (3) of Section 489.119 goes on to prescribe the qualifications and duties of the qualifying agent for the business organization. Section 489.119 is simply not applicable to the facts of the case. At no time did respondent attempt to engage in contracting as a business organization. At no time did respondent attempt to act as qualifying agent for that entity. Section 489.119 imposes no duty on a licensed contractor to seek or require the registration or certification with regard to the four residences at issue, that is a matter between it and the Florida Construction Industry Licensing Board.

   
   

9. Respondent is also charged with acting in the capacity of a contractor under a name other than set forth on his certification, in violation of Section 489.129(1)(g) . The evidence illustrates this charge to be without foundation. Respondent applied for and obtained permits under his own name. Sentinel Building was simply listed as the owner, and the name "Ruben S. Ares" was listed as the contractor.

   
   

10. Respondent is further charged with violations of subsections (e) and

1. of section 489.129(1), which make the following actions grounds for discipline:

   
   

   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.

When a certificate holder or registrant allows his certificate or registration to be used by one or more companies without having any active participation 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.

The evidence demonstrates that neither Sentinel Building Company of Central Florida, Inc. nor its principals were registered or certified contractors in Florida at the time four single-family residences were being constructed in Seminole County, Florida. The evidence also demonstrates that respondent had no active participation in the operations, management or control of Sentinel Building. Respondent's "supervision" over construction was, at best, minimal.

Respondent obtained all necessary permits for these four residences. It is concluded that these homes were, in fact, being built by Sentinel Building and that Company was engaged in the business of contracting without registration or

certification. By obtaining permits under his own certificate for the construction being performed, respondent was aiding and abetting Sentinel Building to evade the provisions of Chapter 489, Florida Statutes, which prohibits a person from engaging in the business of contracting without a license. Section 489.113(2), Florida Statutes. This constitutes a violation of Section 489.129(1)(e), Florida Statutes, for which disciplinary action is warranted. By allowing his certificate to be utilized in this manner, respondent is also guilty of knowingly combining with an uncertified and unregistered person to evade the licensing requirements of Chapter 4889, in violation of Section 489.129(1)(f), Florida Statutes.

RECOMMENDATION

Based upon the findings of fact and conclusions of law recited herein, it is RECOMMENDED that respondent be found guilty of violating Section 489.129(1)(e) and (f), Florida Statutes, that an administrative fine in the amount of $1500 be imposed against respondent and that the remaining charges of the Administrative Complaint be dismissed.

Respectfully submitted and entered this 22nd day of June, 1984, in Tallahassee, Florida.

DIANE D. TREMOR, 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 June, 1984.

COPIES FURNISHED:

Stephanie A. Daniel, Esquire Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32301

Aldo Icardi, Esquire

P.O. Box 879 990 Lewis Drive

Winter Park, Florida 32790

James Linnan Executive Director

Construction Industry Licensing Board Post Office Box 2

Jacksonville, Florida 32202

Docket for Case No: 83-003402

Orders for Case No: 83-003402