vs. ) CASE NO. 84-3834
Respondent. )
This case was heard on February 27, 1985, in Sarasota, Florida. Appearing for the parties were:
For Petitioner: H. Reynolds Sampson, Esquire
In the Administrative Complaint, Petitioner alleges that Respondent has violated various portions of the statutes regulating contractors. Count One alleges that the Respondent violated section 489.129(e), Fla. Stat. (1981), by aiding and abetting an uncertified or unregistered person to evade the licensing provisions of the Contracting Act, and section 489.129(1)(f), Fla. Stat. (1981), by knowingly combining or conspiring with an unregistered or uncertified person with intent to evade the provisions of the Contracting Act. At the hearing, Petitioner withdrew that portion of Count One which alleges that Respondent failed to supervise the project. Count Two alleges that Respondent failed to call for final inspection as required by section 108.2(c), Southern Standard Building Code, as adopted by Manatee County, and that in so doing, Respondent violated section 489.129(1)(d), Fla. Stat. (1981), by willful or deliberate disregard and violation of applicable building codes or laws of the state or any county.
References in this recommended order to the transcript will be "Tr. ." FINDINGS OF FACT
The parties stipulated to the following facts, which are paragraphs from the administrative complaint:
Petitioner, Department of Professional Regulation, is the state agency charged with regulating the practice of contracting pursuant to Section 20.30, Chapter 455, and Chapter 489, Florida Statutes.
Respondent is, and has been at all times material hereto, a certified general contractor in the State of Florida having been issued license number CG CO23855. Respondent's last known address is 2216 Bayshore Garden Parkway, Bradenton, Florida 33507.
Respondent obtained the building permit for this project on June 16, 1983. Construction began on or about June 20, 1983, and lasted until approximately July 22, 1983.
On April 19, 1983, Albert Melhus contracted with C. H. Dengler to build a room addition on his home in Bradenton, Manatee County, Florida. The contract was reduced to writing consisting of Petitioner's Exhibits 1 and 2 and was signed by Dengler on April 19, 1983. The contract price was $12,500. By the terms of the contract, Dengler agreed to be responsible for the entire project, including payment for building permits. Petitioner's Exhibit 2. Dengler was not at that time, or at any time during performance of the contract, a licensed or registered contractor, and could not obtain a development permit from the City of Bradenton for this project. A permit from the City of Bradenton was required. Melhus may have known that Dengler could not get a permit when Melhus entered into the contract with Dengler, and probably did so, as will be discussed ahead, since the contract with Dengler and the application for permit by Mann were signed the same day. In any event, Melhus testified that he knew Dengler was unable to get the permit when he asked Mann to get the permit for him. (Tr. 11, 13.)
On the same day, April 19, 1983, the Respondent, Martin Mann, using his contractor license number CGC 023855, applied to the City of Bradenton for a Development Permit for the room addition work described above for Melhus. Respondent signed the application on April 19, 1983, and on the application, (Petitioner's Exhibit 10), stated that the cost of development was $12,000. Respondent obtained the permit on June 16, 1983.
Dengler and Mann had previously worked on the same construction projects at the same time, and both generally knew each other by name. Melhus was directed to Respondent Mann by Dengler. (Tr. 8, 12.) Melhus hired Mann at
$30 per hour not to exceed $500 to obtain the development permit and to help obtain a zoning variance for the project. Mann claimed that he was drawn into the project slowly, first being asked to help obtain the zoning variance, and only later asked to obtain the building permit. This is not credible, in light of the evidence, and undermines Mann's ultimate credibility. As noted above, Mann applied for the building permit on the same day that Dengler and Melhus signed their contract. Melhus then knew Dengler could not get the permit when he asked Mann to do it, which was obviously the same day, April 19, 1983, or the days just preceding. Finally, Mann himself testified that he first met Melhus at a restaurant, and that Dengler and other workers on the project were there with Melhus.
Mann testified that Melhus paid him directly, paying him $275 in cash, and that Dengler never paid Mann anything. Melhus denies this, and indicated he made all payments by check, and that his payments to Mann were made by check to Dengler. (Tr. 14, 16, 23. See also Tr. 8.) One of the payments made to Dengler included $150 earmarked for Mann for Mann's work. (Petitioner's Exhibits 3 and 4.) The above exhibits, Melhus's own testimony and demeanor, and
Melhus's prior experience as a contractor, (Tr. 10), lead the Hearing Officer to conclude that Melhus was rather careful to reduce essential elements of arrangements for this project to writing, and that Melhus in fact made all payments for the project by check to Dengler, and would not have made a payment to Mann with cash. Further, it is the conclusion of the Hearing Officer that payments would have been made by check because the project was to build a room for Melhus's sister-in-law, who was incompetent, and payments for the project were made by check out of her account by Melhus and his wife, as guardians for the sister-in-law. (Tr. 15-16; Petitioner's Exhibit 4.) The only way to believe Mann's testimony that he was paid in cash by Melhus is to believe that Melhus paid Mann twice for the same work, which is unlikely, given the above facts. Further, to believe that Mann did not know that Melhus had given $150 to Dengler for Mann, is contrary to logic. Mann was no special friend of Melhus, and had no reason to forego payment, or to fail to keep track of his hours and demand full payment for his work. It therefore is the conclusion of the Hearing Officer that Mann's testimony that he received payment from Melhus in cash is untrue, and further discredits Mann's testimony.
Melhus did not show Mann the written contract that he had with Dengler. But Mann appears to have been aware of the terms of the contract at least to the extent of knowing the estimated contract price of about $12,000. When Mann completed the application for a building permit, he stated that the project would cost $12,000. On cross examination, he was asked to explain where he came up with that estimate, and he promptly answered that it cane from the square feet involved in the job. (Tr. 104.) But on redirect, after a leading question from his own counsel, Mann changed his testimony, and volunteered that Melhus gave him the figure of $12,000. (Tr. 105-106.) The demeanor of the Respondent as he changed his testimony leads the Hearing Officer to conclude that Mann was withholding knowledge, and that Mann was in fact aware that the $12,000 figure was a contract price with Dengler.
The Respondent had available to him the plans for the project, since these were attached to the application for permit. But, if Melhus is to be believed, Mann did not have the specifications in Petitioner's Exhibit 2. (Tr. 26.) Thus, although he had listed himself as the contractor on the project on the application for permit, Mann could not have supervised the work to see that the items in the detailed specifications were in fact accomplished. Mann did come to the job site several times to see in a general way if the work was progressing properly, but his supervision consisted simply of checking with Dengler to see if Dengler was supervising the work properly. Mann's own professed lack of direct involvement in supervision of the project is consistent with the conclusion that he knew that Dengler had been given the specifications, and that Dengler was doing the supervision of the project.
It is also clear that Mann knew that his arrangement with Melhus was such that Melhus was not to make payments to Mann for payment of subcontractors or other workers on the job, and Mann did not assume any responsibility for receipt of money or distribution of money to others. Mann had no responsibility for hiring subcontractors or other employees, ordering materials, or for payments to others, and Mann and Melhus both knew of these limits to Mann's responsibility.
As discussed above, Melhus made all payments to Dengler. Included in such payments was money for payment of plumbing and electrical work, but Dengler failed to pay the subcontractors who did this work. The plumbing subcontractor was Roger L. Sexton. Sexton initially looked to Dengler for payment and sent a bill to Dengler, but over a period of time, at least several months, Dengler
failed to pay Sexton. There was no evidence that Mann received the money for Sexton from Melhus, or that Mann was supposed to pay Sexton. At some time prior to April 10, 1984, Sexton asked Mann to pay the bill. Sexton prepared a bill to Melhus on April 10, 1984, which is Respondent's Exhibit 1, and on or after that date Mann paid Sexton. The electrical subcontractor, Raymond Felske, also sent his bill to Dengler, and that invoice was dated July 20, 1983. (Petitioner's Exhibit 7.) Dengler failed to pay this bill, and on February 9, 1984, Felske obtain a judgment against Dengler for the amount due, plus costs. Melhus also did not pay Felske, and Felske tracked Mann down by means of his contractor's license number on the building permit. On April 14, 1984, Felske prepared a bill for Melhus for his judgment plus costs, and Mann paid the bill. At some point before he paid Sexton and Felske, Respondent Mann made an offer to Melhus to pay one-half of the money owed the subcontractors.
Sexton had done plumbing service work for Melhus before, and had known him for a long time. Sexton bid $800 for the work on the job site in the presence of Dengler and Melhus, and Sexton assumed that Dengler was in charge of the project. Sexton saw Dengler on the job site all the time he was there. Sexton did not have many dealings with Mann, but saw Mann on the job site about two times. Sexton himself was there two or three times.
Felske was a good friend of Melhus, and gave him a good price for the electrical work. Felske did not know either Dengler or Mann. Felske entered into an oral agreement with Dengler to do the electrical work on a time and materials basis. Dengler provided Felske with the plans, and was in charge of the project as far as Felske could tell. Felske sent his bill directly to Dengler, as discussed above. Felske's work spanned the period from July 5 to July 18, 1983, and was done by his electricians. Felske pulled his own electrical permits, and relied upon Mann's permit number to do so. Melhus suggested to Dengler the names of Sexton and Felske as potential subcontractors, but Melhus left it up to Dengler to make the choice and the arrangements for all of the work.
The work was completed correctly and without defects in late July 1983, and Melhus made his final payment to Dengler under the contract on July 29, 1983.
The Chief of Code Enforcement, City of Bradenton, Tony Asshe, interprets the contracting law to require that the contractor whose name appears on the development permit to be responsible for calling for the final inspection. On a project as small as the one in this case, the City of Bradenton does not require or use a certificate of occupancy. The building final inspection for this project was never completed, and Respondent Mann was responsible to call for the final inspection. Asshe could not tell from his own personal knowledge or from Petitioner's Exhibit 11, whether Mann in fact called for final inspection and the inspection was not completed for some reason, or whether Mann failed to call for inspection. The City of Bradenton keeps records of calls for final inspection, but no records were presented by either party. Respondent Mann testified that he tried to obtain the call records from the City, but was unsuccessful. Mann testified that he did call the City of Bradenton for an inspection for a certificate of occupancy, but was told by the person representing the City that the project was too small for a certificate of occupancy, and was told that the last inspection performed, electrical final, was all that was needed as a final inspection. The last inspection shown on the City's records, (Petitioner's Exhibit 11), is not electrical final, but plumbing
final. Since Count Two of the administrative complaint only charges the Respondent with failure to call for the final inspection, evidence as to whether or not Respondent called for the air conditioning inspections, the floor inspection, or the insulation inspection, is irrelevant.
The parties did not file proposed findings of fact and conclusions of
law.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction of these
proceedings pursuant to section 120.57(1), Fla. Stat. (1984).
The first violation charged is aiding and abetting an uncertified or unregistered person to evade the licensing provisions of the Contracting Act. The Respondent may be found to have violated this provision only if the evidence shows that he intended to participate in the violation of Dengler. Cf. J.H. v. State, 370 So. 2d 1219, 1220 (Fla. 3d DCA 1979).
The second violation charged is knowingly combining or conspiring with an unregistered or uncertified person with intent to evade the provisions of the Contracting Act. This violation requires proof of conspiracy, which requires proof both of an agreement and an intent to commit the underlying offense. Cf. Ashenoff v. State, 391 So. 2d 389, 391 (Fla. 3d DCA 1981). The agreement may be inferred from circumstantial evidence. Cf. Estraviz v. State, 366 So. 2d 803, 804 (Fla. 3d DCA 1979). There must be some evidence of plan, agreement, and communication of the agreement between the parties. Cf. Beke v. State, 423 So. 2d 417, 419 (Fla. 2d DCA 1982). Conspiracy may not be inferred from aiding and abetting alone. Cf. Ashenoff, supra, 391 So. 2d at 291. Finally, the underlying offense, intent to evade the provisions of the Contracting Law, requires proof of specific intent. Linehan v. State, 442 So. 2d 244 (Fla. 2d DCA 1983).
The third offense charged is failing to call for final inspection as required by section 108.2(c), Southern Standard Building Code, as adopted by Manatee County, thus violating section 489.129(1)(d), Fla. Stat. (1981), by willful or deliberate disregard and violation of applicable building codes or laws of the state or any county. This violation requires proof of willful or deliberate disregard for the building code provision.
Fundamental to proof of the first two violations is the question of whether the Respondent knew that Dengler would be supervising the work on this project pursuant to contractual arrangements with the owner, Melhus. Proof of the second violation requires proof that the Respondent conspired or agreed with Dengler to evade the requirements of the Contracting Act.
The evidence, mostly circumstantial, shows that the Respondent in fact knew that Dengler was unlicensed and would be supervising the project pursuant to agreement or contract with Melhus, and that the Respondent conspired with Dengler and Melhus to lend his license in order that the permit could be obtained. The following evidence compels that conclusion:
Melhus knew Dengler could not get the permit when he asked Mann to get it for him. Melhus entered into the contract with Dengler on the sane day that Mann applied for the permit.
Mann knew Dengler, and it was Dengler that suggested Mann to Melhus. Dengler could only have suggested Mann for the purpose of using Mann's contracting license to pull the permit, and that is also why Melhus followed up on Dengler's suggestion.
Mann had direct opportunity to know of Dengler's involvement before he agreed to pull the permit since he met Melhus for the first time at a restaurant in the company of Dengler and others to work on the project. It would be illogical to believe that Dengler and Melhus would not have explicitly told Mann why they needed him.
When Mann applied for the permit, he knew how much the contract price was with Dengler, which gives rise to the inference that Melhus and Dengler told Mann that Melhus had a contract with Dengler to build the room addition for
$12,000.
Mann's arrangement with Melhus, that Mann would be paid on an hourly basis for time expended, not to exceed $500, is precisely the type of arrangement that someone would make if he knew he was not responsible to supervise the project, but was hired only to lend his license to pull the permit and to appear at the proper time to help obtain a zoning variance.
Mann's claim that Melhus paid him in cash undermines Mann's credibility. Melhus paid for the room addition with trust funds. To draw on the trust funds, he had to write a check on the account. It is very unlikely that Melhus would have paid cash to Mann under these circumstances.
Mann's claim that he properly undertook supervision of the project is undercut by his admission that he never saw the detailed specifications required for the project. (Petitioner's Exhibit 2.) His supervision was thus not real, but only a cover for his conspiracy to lend his license to Dengler.
Sexton and Felske both assumed from direct observation on the work site that Dengler was in charge of the project. Neither thought Mann was in charge. Thus, Mann in fact did nothing to make the plumbing and electrical worker believe that he was their supervisor. Had Mann visited the site as he said he did, he would have seen that Sexton and Felske thought Dengler was their supervisor.
Thus, the first two violations alleged in count one of the administrative complaint are supported by competent substantial evidence, and are found to be true.
The record evidence fails to support the conclusions that the Respondent willfully and deliberately disregarded the requirement of the Southern Standard Building Code requiring him to call for the final inspection. Mr. Asshe was unable to tell from his own records whether the Respondent in fact called for final inspection, and the inspection was not completed for some reason, or whether the Respondent simply did not call. The records were not put into evidence, and the clerk in Mr. Asshe's office did not testify as to her recollection of any phone calls from the Respondent. The Respondent testified without contradiction that he in fact called for an inspection for a certificate of occupancy, and was told that the job was too small for a certificate of occupancy, and that the last inspection performed had been sufficient as a final inspection. On this record there is not enough evidence to show the violation charged.
In consideration of the foregoing, it is recommended that the Petitioner enter its final order:
DONE and ENTERED this 10th day of May, 1985, in Tallahassee, Florida.
WILLIAM C. SHERRILL, JR.
FILED with the Clerk of the Division Administrative Hearings this 10th day of May, 1985.
H. Reynolds Sampson, Esquire Department of Professional Regulation
Martin F. Mann
Simon Rosin, Esquire Pflugner, Rosin & Hendricks Post Office Box 1918 Sarasota, Florida 33578
P.O. Box 2
