STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF PROFESSIONAL )

REGULATION, )

)

Petitioner, )

)

vs. ) CASE N0.84-3443

)

KENNETH H. CAIATA, )

)

Respondent. )

)

RECOMMENDED ORDER

This cause came on for hearing on December 11, 1984, in Naples, Florida, before Diane A. Grubbs, the Hearing Officer designated by the Division of Administrative Hearings.

APPEARANCES

For Petitioner: H. Reynolds Sampson

Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32301

For Respondent: No appearance by respondent.

ISSUE

Did respondent fail to properly supervise, direct and manage the contracting activities of the business of which he is the qualifier, and if so, what disciplinary action should be taken against respondent's contracting license?

BACKGROUND

By administrative complaint dated September 5, 1984, respondent was charged with violating Section 489.129(1)(j), Florida Statutes, by not materially complying with the provisions of Section 489.119(2) and (3), Florida Statutes, by failing to properly supervise, direct and manage the contracting activities of the business of which he is the qualifier. Specifically, the complaint alleges that respondent is the licensed qualifier for Custom Concrete of Naples, Inc., that Rodney Velez, an officer of Custom Concrete of Naples, Inc., contracted with the Patersons to build a home for them for $38,500.00, that respondent obtained the permit, and that at no time did respondent supervise, direct or manage the construction activities.

On September 25, 1984, respondent executed an election of rights form by which he disputed the allegations of fact in the administrative complaint and requested a formal hearing pursuant to Section 120.57(1), Florida Statutes. On the election of rights form the respondent gave a Florida address and an Ohio

address, and the notice of hearing was sent to both addresses. However, the respondent failed to appear at the hearing and filed nothing in this cause after the election of rights form.

At the hearing, petitioner called nine witnesses and nine exhibits were introduced into evidence. 1/

Petitioner timely filed proposed findings of fact and conclusions of law which, to the extent they have not been incorporated herein, are found to be cumulative, immaterial, unnecessary or not supported by the evidence.

FINDINGS OF FACTS

1. At all times material to this proceeding the respondent was a certified building contractor licensed by the State of Florida and the qualifying agent for Custom Concrete of Naples, Inc. (Custom Concrete). Rodney Velez was the president of Custom Concrete and licensed only in concrete--concrete forming, placing and finishing. Susan Velez, Rodney Velez's wife, was an officer of Custom Concrete.

   
   

2. On April 23, 1983, Custom Concrete, by and through Rodney Velez, entered into a contract with Mark and Penny Paterson to construct a home for

   $38,550.00. Mrs. Paterson had previously met Rodney Velez in the course of her work, and Velez had told her that he was a builder. Mrs. Paterson had suggested that Velez look at a floor plan that she and her husband had, and after certain negotiations, including a change of floor plan, the contract was entered into.

   During the course of the negotiations Mrs. Paterson never talked to the respondent and was unaware that the respondent was involved or would be involved in the construction of the home. Mrs. Paterson believed that Rodney Velez was the "builder"; however, the construction of the Paterson home was beyond the scope of Velez's concrete license.

   
   

3. The respondent signed the application to secure the building permit for the Paterson residence, although he did not personally appear to procure the building permit. The clerk of the contractor's licensing section of the building code compliance department relied on the signature on the application because it was notarized. The notary was Susan Velez.

   
   

4. Respondent did not supervise or direct the construction of the Paterson home. Neal Jackson, president of the company who did the electric work on the home, was unaware that respondent was involved in the project until well after the house was finished. Although it is usual for a supervisor or superintendent to be at the job site some of the time, Jackson never saw the respondent or Velez at the job site. Jeff Allain, the carpenter who did the framing and certain other work, was on the job site five or six days and saw the respondent once during the framing of the structure "just generally looking around." The respondent didn't say anything to Allain. David Isom did drywall work on the house. He had no contact with the respondent and did not see him at the construction site. Mrs. Paterson went by the construction site quite often and realized that the job was not being properly supervised. Velez was rarely there, and Mrs. Paterson never saw the respondent. The workmen on the site would ask the Patersons when Velez would be there because they had questions concerning the work. Neither of the building inspectors saw anyone supervising at the job site, although usually no one is at the job site when an inspection is made.

5. Two days after the Patersons moved into their house, they compiled a "punch list" of the items that needed to be completed or corrected. The list was given to Velez, but the work was not corrected to the Paterson's satisfaction. Although Velez did not give the "punch list" to respondent, Velez discussed the problems with the respondent. Respondent did not take any steps to remedy the problems and said he thought "a lot of it was nonsense." Velez told respondent that he, Velez, would take care of it.

   
   

6. Because of the unresolved problems with the house, Mrs. Paterson finally called the licensing board to file a complaint against Rodney Velez. At that time, she was informed that Rodney Velez was not the contractor; the contractor was the respondent. This was the first time that Mrs. Paterson was aware that the respondent was involved with the construction of the house. All of the Patersons dealings had been with Velez, and all checks for construction payments were made out to Velez personally. 2/

   
   

7. Even though the Patersons had not received satisfaction from Custom Concrete for the problems with the house, they signed the closing papers because Velez threatened to evict them. At closing the Patersons received a lien release from Custom Concrete which released all work prior to March 9, 1984. Subsequently, Velez filed a claim of lien against the Paterson property for work completed on February 9, 1984.

   
   

   CONCLUSIONS OF LAW

   
   

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

   
   

9. Section 489.129, Florida Statutes, authorizes the Construction Industry Licensing Board to revoke or suspend the registration or certificate of a contractor and impose an administrative fine, place a contractor on probation, or reprimand or censure a contractor if the contractor is found guilty of committing any of the acts enumerated in that section. One of the enumerated acts is the "[failure in any material respect to comply with the provisions of [Chapter 489]". Section 489.129(1)(j), Florida Statutes. The Administrative Complaint charges that respondent failed to comply with Section 489.119(2) and

   (3) because he failed to properly supervise, direct and manage the contracting activities of the business of which he is the qualifier.

   
   

10. Section 489.105(4), Florida Statutes (1983), defines "qualifying agent" as:

    
    

    "[A] person who posseses the requisite skill, knowledge, and

    experience, and has the responsibility, to supervise, direct, manage, and control the contracting activities of the business entity with which he

    is connected; who has the responsi- bility to supervise, direct, manage, and control construction activities on a job for which he has obtained a building permit; and whose

    technical and personal qualifications have been determined by investigation

    and examination as provided in this act..."

    Section 489.119(2) requires that any applicant proposing to engage in contracting as a corporation, partnership or other business entity must apply through a qualifying agent. The application must show that the qualifying agent is legally qualified to act for the business and that "he has authority to supervise construction undertaken by such business organization". The registration or certification is issued in the name of the qualifying agent.

    Section 489.119(3)(a) states that if a qualifying agent ceases to be affiliated with the business organization the business shall notify the department.

    Section 489.119(3)(b) requires that the qualifying agent inform the department if he proposes to engage in contracting in his own name or in affiliation with another business organization.

    
    

11. In Alles v. Department of Business Regulation, 423 So.2d 624 (Fla. 5th DCA 1982) the district court discussed the purpose of the requirement that a business organization act through a qualifying agent:

    
    

    "The obvious purpose of these statutes allowing a company to act as a contractor through a licensed contractor

    is to insure that projects undertaken by a company are to be supervised by

    one certified and licensed by the board.

    To allow a contractor to be the "qualifying agent" for a company without placing any requirement on the contractor to exercise any supervision over the company's work done under his license would permit a contractor to loan or rent his license to the company. This would completely circumvent the legis- lative intent that an individual, certified as competent, be professionally responsible for supervising construction work on jobs requiring a licensed contractor. Thus, the Board was correct in determining that appellant had a statutorily imposed professional duty, as sole qualifying agent of record of Univel, to supervise all of Univel's projects."

    
    

12. In the instant case the petitioner carried its burden of proving by clear and convincing evidence that respondent did not supervise, direct or manage the contracting activities of Custom Concrete, the company for which he was the qualifying agent. The failure to properly perform his duties as a qualifying agent under Section 489.119 constitutes a violation of Section 489.129(1)(j), Florida Statutes, for which disciplinary action is authorized.

RECOMMENDATION

Based upon the foregoing findings of fact and conclusions of law it is recommended that respondent be found guilty of violating Section 489.129(j), Florida Statutes, that he be fined $1,000.00, and that his license be suspended for 60 days from the date the Construction Industry Licensing Board enters its final order in this case.

DONE and ORDERED this 30th day of January, 1985, in Tallahassee, Florida.

DIANE A. GRUBBS

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 30th day of January, 1985.

ENDNOTES

1/ Petitioner's Exhibit No. 3, the "punch list" prepared by the Patersons was apparently mixed with the papers Mrs. Paterson brought to the hearing and was inadvertently taken with her when she left the hearing. Therefore, petitioner's Exhibit No. 3 is not a part of the record, and it is not material to the determination of the issue in this cause.

2/ Respondent, a personal friend of Velez, received no money from the house construction. Although Velez offered respondent $200 or $300 for "his time", respondent refused to take any money.

COPIES FURNISHED:

H. Reynolds Sampson, Esquire Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32301

Mr. Kenneth Caiata c/o American Air 4466 Werner Road

Cleveland, Ohio 44105

and

636 14th Avenue South Naples, Florida 33940

Mr. James Linnan Executive Director

Construction Industry Licensing Board

Post Office Box 2 Jacksonville, Florida 32202

Mr. Fred Roche, Secretary

Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32301

Docket for Case No: 84-003443

Orders for Case No: 84-003443