STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

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

)

Petitioner, )

)

vs. ) CASE NO. 85-1963

)

VICTOR S. DAVIS, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, William R. Cave, held a public hearing in the above-styled case on September 30, 1985, in Key West, Florida.

APPEARANCES

For Petitioner: Nancy M. Snurkowski, Esquire

Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32301

For Respondent: No Appearance

By Administrative Complaint filed October 9, 1984 but amended by order on August 5, 1985 on Petitioner's Motion To Amend Administrative Complaint Petitioner seeks to revoke, suspend or otherwise discipline the delinquent license of· Respondent, Victor S. Davis as a registered general contractor in the State of Florida. As grounds therefor, it is alleged that: (1) Respondent engaged in business or acted in the capacity of a contractor without being duly registered or certified; (2) Respondent contracted beyond the scope of his license (3) Respondent failed to qualify a company before engaging in contracting and (4) Respondent acted in a name other than set forth in his license.

In support of the charges, Petitioner presented the testimony of Robert G. Wolf, John A. Lobato, Gregory H. O'Berry and Phillip A. Braeunig. Petitioner's Exhibits Nos. 1-10 were received into evidence at the hearing. Petitioner was allowed ten (10) days to file Exhibit No. 11 but by order of October 15, 1985 was given until October 30, 1985 to file the exhibit and by the same order all other time frames were extended.

Respondent, Victor S. Davis failed to appear at the hearing although Respondent had been given proper notice of the hearing by the undersigned at two (2) different addresses, one (1) of the addresses being the address given by Respondent on his Election of Rights Form. Neither of the notices of hearing were returned to the undersigned as being undeliverable.

The Petitioner submitted posthearing Proposed Findings of Fact. A ruling has been made on each proposed findings of fact in the Appendix to this Recommended Order.

FINDINGS OF FACT

Upon consideration of the oral and documentary evidence adduced at the hearing, the following facts were found:

1. At all times material to these proceedings, the Respondent, Victor S. Davis, held a registered general contractor's license, numbered RG 0013635 issued by the State of Florida, Department of Professional Regulation, Construction Industry Licensing Board in April, 1973.

   
   

2. At all times material to these proceedings, Respondent's general contractor's license, number RG 0013635, was in a delinquent status and had been in a delinquent status since July 1, 1977.

   
   

3. Respondent failed to renew his license after June 30, 1975 but in May, 1976 made application to reinstate license number RG 0013635 which was approved and reinstated on an active status by Petitioner in May, 1976 and issued to Respondent, Victor S. Davis, qualifying Conch Construction Corp., of Key West, Florida. There was no evidence that the reinstated license was issued for Monroe County, Florida or that Respondent ever held a certificate of competency for Monroe County, Florida.

4. At all times material to these proceedings, Respondent was an officer (Secretary) of Classic Marketing and Development, Inc. (Classic).

   
   

5. On July 28, 1983, the Respondent, as Secretary of Classic, entered into a contract with William Dees to construct a shell home on the Dees' property located at Lot 14, Block 7, Breezeswept Estates, Ramrod Key, Florida for a contract price of

   $27,000.00.

   
   

6. On September 13, 1983, William Dees applied for and obtained building permit No. 10902-A as owner/builder for the construction of the Dees's home. Construction of the Dees home began on or about September 13, 1983.

   
   

7. Gregory H. O'Berry, President of Classic had knowledge of, and approved of, Respondent entering into contracts for construction of homes in Monroe County, Florida, including the contract with Dees. O'Berry was aware that Respondent did not hold a certificate of competency in Monroe County, Florida and that Respondent's registered general contractor's license did not cover contracting in Monroe County, Florida. O'Berry understood that Phillip A. Braeunig, a properly licensed general contractor in Monroe County, Florida, was acting as the general contractor for Classic- in the construction of homes by Classic, including the construction of the Dees home.

   
   

8. Braeunig did not act as general contractor on the construction of the Dees' home.

   
   

9. Respondent supervised the contraction of the Dees' home, until Respondent abandoned the construction of the Dees' home, and in performing these supervisory duties fulfilled the responsibilities of a general contractor. No other officer or authorized agent of Classic had any responsibility for the supervision of, or acted in any manner as a general contractor, in the construction of the Dees' home.

   
   

10. Braeunig prepared and submitted to Respondent an application to qualify Classic with Petitioner using Braeunig's license but this application was never filed with Petitioner during- anytime material to these proceedings. Classic was never qualified by anyone, including Respondent or Braeunig, at any time material to these proceedings.

    
    

11. Braeunig~acted as general contractor for Classic on the Conti home, which was in the beginning stages of Classic and

    prior to the Dees' job. Braeunig was brought into Classic for the purpose of acting as general contractor because of the Respondent's invalid license.

    
    

    CONCLUSIONS OF LAW

    
    

12. The Division of Administrative Hearings has jurisdiction over the parties to, and the subject matter of, this proceeding. Section 120.57(1) Florida Statutes (1983).

    
    

13. Section 489.129, Florida Statutes (1983), empowers the Florida Construction Industry Licensing Board (Board) to revoke, suspend or otherwise discipline the license of Respondent if he is found guilty of any one of those enumerated acts listed in Section 489.129, Florida Statutes 1983.

    
    

14. Count I of the Amended Administrative Complaint charges Respondent with violating Section 489.127(1)(f), Florida Statutes, (1983), by engaging in the business or acting in the capacity of a contractor without being duly registered or certified and with violating Sections 489.115(3)(a), Florida Statutes, (1983) when Respondent failed in a material respect to comply with Section 489.117(2), Florida Statutes (lg83), by contracting beyond the scope of his license.

    
    

15. The provisions of Section 489.127(1)(f), Florida Statutes (1983) are quoted below:

    
    

    1. No person shall:

       
       

       * * *

       
       

       1. Engage in the business or act in the capacity of a contractor without being duly registered or certified.

          
          

16. Section 489.115(3)(2) Florida Statutes (1983) is quoted below

    
    

    Each licensee who desires to continue as a licensee shall renew his certificate of registration every 2 years. The Department shall mail each licensee an application for renewal.

    
    

17. Section 489.117(2), Florida Statutes provides:

    Registration allows the registrant to engage in contracting only in the counties, municipalities or development districts where he has complied with all local licensing requirements and only for the type of work covered by the registration.

    
    

18. Any person who violates Section 489.127(1)(f), Florida Statutes (1983) or Section 489.115(3)(a), Florida Statutes (1983) by failing to materially comply with Section 489.117(2), Florida Statutes (1983) is subject to the penalties imposed under Section 489.129, Florida Statutes (1983) provided there is an allegation in the Administrative Complaint charging that person with such a violation under Section 489.129, Florida Statutes, (1983). However, in the instant case, there is no allegation in the Amended Administrative Complaint charging the Respondent with a violation of either Section 489.127(1)(f), Florida Statutes (1983) or Section 489.115(3)(a), Florida Statutes (1983) under Section 489.129, Florida Statutes (1983). Therefore, the Respondent is not subject to the penalties imposed under Section 489.129, Florida Statutes (1983). Additionally, any person who violates Section 489.127(1)(f), Florida Statutes (1983) is guilty of a misdemeanor in the first degree and punishable as provided in Section 775.082, 775.083 or 775.084, Florida Statutes (1983). Whether or not a person is guilty of a misdemeanor is not within the jurisdiction of this administrative forum.

    
    

19. Count II of the Amended Administrative Complaint charges Respondent with violating Section 489.129(1)(j), Florida Statutes (1983) by failing to comply with Section 489.119(2) and (3), Florida Statutes (1983) and with violating Section 489.129(1)(g), Florida Statutes (1983) by acting in a name other than set forth in his license.

    
    

20. Section 489.129(1)(g)(j), Florida Statutes (1983) provides in pertinent part:

    
    

    1. The board may revoke, suspend, . . . the certificate or registration of a contractor and impose an administrative fine not to exceed $5,000, place a contractor on probation, or reprimand or censure a contractor if the contractor, . . . is found guilty of any of the following acts:

       
       

       * * *

       
       

       1. Acting in the capacity of a contractor under any certificate or registration issued hereunder except in the name of the certificate holder or registrant as set forth on the issued certificate or registration, or in accordance with the personnel of the certificate holder or registrant as set forth in the application for the certificate or registration, or as later changed as provided in this act.

       
       

       (j) Failure in any material respect to comply with the provisions of this act.

       
       

21. Section 489.119(2)(3), Florida Statutes (1983) provides, among other things, a method whereby a business organization, such as a corporation, may engage in contracting, provided the business organization has been duly and properly qualified by a qualifying agent who must be certified or registered under Chapter 489, Florida Statutes and such qualifying agent be legally qualified to act for the business organization in all matters connected with the business organization's contracting business and have the authority to supervise construction undertaken by the business organization and be employed by the business organization prior to it engaging in contracting.

    
    

22. The record clearly shows that Respondent was aware of Classic not being qualified under Section 489.119(2)(3), Florida Statutes to engage in contracting when he entered into the contract with Dees for the construction of a shell home. Further, the record shows that Respondent acted in the capacity of a general contractor under the contract with Dees, with the authority to supervise the construction of the Dees' home.

    Also, the record shows that Respondent did not contract with Dees in his capacity as qualifying agent for Conch Construction Corp. or in his individual capacity as a general contractor.

    
    

23. The Petitioner has shown that Respondent violated Section 489.129(1)(g)(j), Florida Statutes (1983) and has met its burden to prove Respondent guilty of the violation charged in Count II of the Amended Administrative Complaint.

RECOMMENDATION

Based upon the findings of fact and conclusions of law recited herein, it is RECOMMENDED that the Board enter a final order Dismissing Count I of the Amended Administrative Complaint filed against the Respondent. It is further RECOMMENDED that the Board enter a final order finding Respondent guilty of the violation charged in Count II of the Amended Administrative Complaint and for such violation it is RECOMMENDED that the Board suspend the Respondent's registered general contractor's license for a period of two (2) years and assess the Respondent with an administrative fine of $500.00, stay the suspension and place Respondent on probation for a period of two (2) years, provided the Respondent pays the $500.00 fine within ninety (90) days. Respondent's failure to pay the $500.00 fine within the time specified will result in his registered general contractor's license being suspended for a period of two (2) years with the requirement that when the fine is paid and the suspension lifted, the Respondent must appear before the Board for reinstatement of his license.

Respectfully submitted and entered this 3rd of December, 1985, in Tallahassee, Leon County, Florida.

WILLIAM R. CAVE

Hearing Officer

Division of Administrative Hearings The Oakland Building

2009 Apalachee Parkway

Tallahassee, FL 32301

(904) 488-9675

FILED with the Clerk of the Division of Administrative Hearings this 3rd day of December, 1985.

APPENDIX

Department of Professional Regulation, Construction Industry Licensing Board v. Victor S. Davis, Division of Administrative Hearings Case No. 85-1963

Ruling on Petitioner's Proposed Findings of Fact:

1. Adopted in Finding of Fact No. 1 except for the statement that "Respondent's license was issued for Okaloosa

   County only" which is rejected as not being based upon competent substantial evidence. Hearsay alone is not sufficient to support a finding of fact.

2. Adopted in Finding of Fact No. 1 except for statement that "said license has been delinquent since July, 1981" which is rejected as being contrary to the evidence in Petitioner's Exhibit No. 1 which shows delinquent status as of July 1, 1977.

3. Adopted in Finding of Fact No. 3.

4. Rejected as a conclusion of law rather than a proposed finding of fact.

5. Considered as background information and not as a finding of faet.

6. Adopted in Finding of Fact No. 4.

7. Adopted in Finding of Fact No. 5.

8. Adopted in Finding of Fact Nos. 4 and 5.

9. Adopted in Finding of Fact Nos. 5 and 7.

10. Adopted in Finding of Fact No. 5.

11. Adopted in Finding of Fact No. 6.

12. Adopted in Finding of Fact No. 6.

13. Adopted in Finding of Fact No. 9.

14. Adopted in Finding of Fact No. 9.

15. Adopted in Finding of Fact No. 9.

16. Adopted in Finding of Fact No. 9.

17. Adopted in Finding of feet No. 10

18. Adopted in Finding of Fact No. 10

19. Rejected as a conclusion of law rather than a proposed finding of fact.

Respondent did not submit Proposed Findings of Fact.

COPIES FURNISHED:

James Linnan, Executive Director Department of Professional Regulation Construction Industry Licensing Board

P. O. Box 2 Jacksonville, FL 32202

Nancy M. Snurkowski, Esq.

Department of Professional Regulation

130 North Monroe Street Tallahassee, FL 32301

Fred Roche, Secretary

Department of Professional Regulation

130 North Monroe Street

Tallahassee, FL 32301

Victor S. Davis

2169 North Hercules Avenue Clearwater, FL 33575

and

6290 Sandcrest Circle

Orlando, FL 32819

Docket for Case No: 85-001963

Orders for Case No: 85-001963