STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

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

)

Petitioner, )

)

vs. ) Case No. 85-2195

)

JAMES L. MULLER, )

)

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 February 18, 1986, in Miami, Florida.

APPEARANCES

For Petitioner: W. Douglas Beason, Esquire

Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32301

For Respondent: James L. Muller, pro se

1520 Bayshore Drive

Cocoa Beach, Florida 32931

By an Administrative Complaint dated April 17, 1985, filed with the Division of Administrative Hearings on June 25, 1985, and amended by order on December 9, 1985, on Petitioner's Motion For Leave To File An Amended Administrative Complaint, Petitioner seeks to revoke, suspend or otherwise discipline the license of Respondent James L. Muller as a registered roofing contractor in the state of Florida. As grounds therefor, it is alleged that:

1. Respondent aided and abetted an uncertified or unregistered person to evade the provisions of Chapter 489, Florida Statutes, in violation of Section 489.129(1)(e), Florida Statutes; (2) Respondent knowingly combined and conspired with an uncertified or unregistered person by allowing his registration to be used by an uncertified or unregistered person with the intent to evade the provisions of Chapter 489, Florida Statutes, in violation of

   Section 489.129(1)(f), Florida Statutes (3) Respondent failed to qualify a business through which he engaged in the practice of contracting as required by Section 489.119(2)(3), Florida Statutes, in violation of Section 489.129(1)(j), Florida Statutes; (4) Respondent acted in a name not set forth in his registration in violation of Section 489.129(1)(g), Florida Statutes and (5) Respondent is guilty of gross negligence, incompetency or misconduct in the practice of contracting in violation of Section 489.129(1)(m), Florida Statutes.

   
   

   In support of the charges, Petitioner presented the testimony of Jack Poe, Robert J. Connors, G.B. Archer, Thomas R. Butler and Bobby J. Hunter. Petitioner's exhibits 1-17 were received into evidence. Respondent testified on his own behalf. Respondent's exhibits 1 and 2 were received into evidence.

   
   

   The proposed findings of fact and conclusions of law of the parties provided for under Section 120.57(1)(b)(4), Florida Statutes, were due on March 14, 1986. On March 31, 1986, Petitioner filed a motion for extension of time to file its proposed findings of fact and conclusions of law. The grounds set forth in the motion are insufficient to establish good cause for granting extension of time, therefore, the motion is DENIED. Neither party has submitted post-hearing proposed findings of fact and conclusions of law as allowed by Section 120.57(1)(b)(4), Florida Statutes.

   FINDINGS OF FACT

   
   

   1. At all times relevant to this proceeding, Respondent held a registered roofing contractor's license Number RC 0030261 issued by Petitioner and did business under the name of Jim's Painting and Roof Repairs in Cocoa Beach, Florida.

      
      

   2. On or about May 22, 1984, Rick Callahan, d/b/a Rick Callahan Roofing (Callahan) contracted with Dan Risken to reroof his residence located at 1765 Sandbar Drive, Merritt Island, Florida.

      
      

   3. On May 23, 1984, Respondent obtained building permit No. 16543-C from the Brevard County Building Department for reroofing the Risken residence at 1765 Sandbar Drive, Merritt Island, Florida.

      
      

   4. Callahan performed the reroofing work on the Risken residence located at 1765 Sandbar Drive, Merritt Island, Florida, without any supervision by Respondent and received payments under the contract in the amount of $2,000.00, $1,000.00, and $735.00 on May 21, 25, and 26, 1984, respectively. No moneys were paid

      to Respondent by Dan Risken under the contract with Callahan for reroofing his residence.

      
      

   5. On or about September 10, 1984, Respondent contracted with A1 Notary for the construction of a roof on an office building located at 375 South Courtney Parkway, Merritt Island, Florida, for a contract price of approximately $2,500.00 and on September 10, 1984, obtained a permit No. 16867-C from the Brevard County Building Department for the roofing work at 375 South Courtney Parkway, Merritt Island, Florida.

      
      

   6. Respondent subcontracted the roofing work on the A1 Notary building at 375 South Courtney Parkway in Merritt Island to Callahan and on September 28, 1984, Callahan was paid the contract price of $2,500.00 by the A. C. Notary Company for the roofing work.

      
      

   7. At all times pertinent to this proceeding, Rick Callahan did not have a certificate of competency to do roofing work and was not qualified in Brevard County to obtain a permit to do roofing work himself. Additionally, during the period of time pertinent to this proceeding, Rick Callahan was not licensed by the Construction Industry Licensing Board (Board) as a roofing contractor. Subsequent to the time pertinent to this proceeding, Rick Callahan was issued a certificate of competency by Brevard County and was licensed as a roofing contractor by the Board.

      
      

   8. Respondent's only involvement in the Risken job was to obtain a permit to allow Callahan to do the roofing work.

      
      

   9. Although Respondent contracted with Notary for his roofing work, the more credible evidence shows that the only reason for Respondent's involvement with the Notary job was to obtain a permit to allow Callahan to do the roofing work.

      
      

   10. On or about November 28, 1984, Robert J. Connors, d/b/a Connors' Home Repair, Painting and Roofing, Inc. (Connors) contracted with Richard McLain to reroof his residence at 1080 South Orlando Avenue, Cocoa Beach, Florida, for a contract price of $2,535.10.

       
       

   11. On November 30, 1984, Respondent obtained building permit No. B7547 from the City of Cocoa Beach Building Department for reroofing the residence at 1080 South Orlando Avenue, Cocoa Beach.

       
       

   12. Connors performed the reroofing work at the McLain residence and received payments for work performed from Richard McLain in the amounts of $1,535.00 and 01,035.00 on November 29, 1984, and December 6, 1984, respectively.

   13. On or about December 31, 1984, Connors contracted with Tom Eddie to reroof his residence at 118 LaRiviere, Cocoa Beach, Florida, for a contract price of $3,795 74.

       
       

   14. On January 8, 1985, Respondent obtained building permit No. B-7592 from the City of Cocoa Beach Building Department for the reroofing work to be performed on the Eddie residence at 118 LaRiviere, Cocoa Beach, Florida.

       
       

   15. Connors performed the reroofing work on the Eddie residence.

       
       

   16. Although Connors testified that Respondent supervised the McLain and Eddie jobs, the more credible evidence is that he was not involved in the supervision of those jobs but was only involved in obtaining the permits for Connors and Connors reciprocated by helping Respondent on some of his roofing jobs.

       
       

   17. At no time relevant to this proceeding did Connors have a certificate of competency, nor was he qualified in Brevard County to obtain a permit to do roofing work himself. Additionally, at no time relevant to this proceeding was Connors licensed by the Board as a roofing contractor.

       
       

   18. On January 7, 1985, Art Arnone contracted with Jack Poe to perform roofing work at the Brentwood Apartments, located at

       351 Woodland Avenue, Cocoa Beach, Florida, for a contract price of $6,575.00.

       
       

   19. Since Art Arnone did not have a State of Florida roofing contractor's license or a certificate of competency in Brevard County and was not qualified in Brevard County to obtain a permit to do roofing work, Respondent asked Art Arnone to get Jack Poe to sign a contract with Respondent instead of Art Arnone for the roofing work on the Brentwood Apartments.

       
       

   20. On January 4, 1985, Respondent contracted with Jack Poe for the roofing work on the Brentwood Apartments for a contract price of $6,500.00. On the request of Art Arnone, Jack Poe listed Art Arnone as the subcontractor on the job.

       
       

   21. On January 7, 1985, Respondent obtained a permit from the city of Cocoa Beach Building Department to do the roofing work on the Brentwood Apartments.

       
       

   22. Art Arnone performed the roofing work on the Brentwood Apartments and there is sufficient evidence that Respondent did supervise Art Arnone while performing this work.

   23. Jack Poe arranged for payment under the contract in two

2. installments of $3,280.00 and $3,215.00. Although the first cashier's check of $3,280.00 was made payable to Art Arnone and dated January 4, 1985, it was not given to Art Arnone until January 11 or 12, 1985. Respondent not require the cashier's check to be reissued in his name because Art Arnone was to use the proceeds to pay for supplies used on the job. The second check of $3,215.00 was made payable to Respondent and delivered on January 16, 985.

   
   

   1. At all times pertinent to this proceeding, Respondent was aware that Rick Callahan, Robert J. Connors, and Art Arnone did not possess certificates of competency from Brevard County or possess roofing contractors' licenses issued by the Board and, therefore, were not qualified to obtain permits to perform roofing work in Brevard County, Florida.

      
      

   2. By ordinance, the City of Cocoa Beach requires that a person meet all the local requirements for certificate of competency and licensure by the state in order to be qualified to obtain a building permit. By ordinance, Brevard County requires that a person have a certificate of competency from Brevard County, unless certified by the state, and be licensed by the Board in order to be qualified to obtain a permit in Brevard County.

      
      

   3. Rick Callahan, Robert J. Connors, and Art Arnone were not certified roofing contractors.

      
      

   4. Although Respondent may have used Rick Callahan, Robert

      J. Connors, and Art Arnone on a job on occasion, they were not employees of Respondent.

      
      

   5. There were no complaints about the quality of the work performed by Rick Callahan, Robert J. Connors, or Art Arnone. In fact, Jack Poe was complimentary of the work performed by Art Arnone.

      
      

   6. Respondent was disciplined by the Board on October 29, 1984, for an earlier violation of Section 489.129(1)(e), Florida Statutes, in October 1983.

      
      

      CONCLUSIONS OF LAW

      
      

   7. The Division of Administrative Hearings has jurisdiction over the parties to, and the subject matter of, this proceeding. Section 120.57(1), Florida Statutes., Section 489.129(1), Florida-Statutes, provides in pertinent part:

      1. The board may revoke, suspend, or deny the issuance or renewal of 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, or if the business entity or any general partner, officer, director, trustee, or member of a business entity for which the contractor is a qualifying agent, is found guilty of any of the following acts:

         * * *

         
         

         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 an uncertified or unregistered person with intent to evade the provisions of this act.

            
            

         3. 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.

         
         

         * * *

         
         

         (m) Upon proof that the licensee is guilty or fraud or deceit or of gross negligence, incompetency, or misconduct in the practice of contracting.

         
         

   8. Section 489.105(3), Florida Statutes, provides in pertinent part:

3. "Contractor" means the person who is qualified for and responsible for the entire project contracted for and means, except as exempted in this act, the person who, for compensation, undertakes to, submits a bid to, or does himself or by others construct, repair, alter, remodel, add to, subtract from, or improve any building or structure, including related improvements to real estate, for others or for resale to others

And Section 489.105(3)(e), Florida Statutes, includes a "roofing contractor" under the definition of "Contractor."

1. The evidence is insufficient to prove any violation of Chapter 489, Florida Statutes, by Respondent in regard to his involvement with the Brentwood Apartment roofing job.

   
   

2. The evidence is clear that Respondent was fully aware of the non-licensure status and the inability of Rick Callahan and Robert J. Connors to obtain a permit to do the work they had contracted for from the appropriate building department in Brevard County when Respondent applied for and obtained the permits which allowed Rick Callahan and Robert J. Connors to do this roofing work in violation of Chapter 489, Florida Statutes. It is equally clear, considering that Respondent's only reason for being involved in three of the jobs was to pull the permits, that Respondent intended to participate in this violation. Therefore, the Petitioner has met its burden to prove that Respondent violated Section 489.129(1)(e), Florida Statutes. However, there is not substantial competent evidence to prove that Respondent knowingly combined or conspired with either Rick Callahan or Robert J. Connors with the intent to evade the provisions of Chapter 489, Florida Statutes, in violation of Section 489.129(l)(f), Florida Statutes. See Department of Professional Regulation vs. Stephen G. Blume, 7 FLAR 5540 (Final Order August 7, 1985). Likewise, the evidence is insufficient to prove that Respondent violated Section 489.129(1)(g)(j)(m), Florida Statutes.

RECOMMENDATION

Based on the findings of fact and conclusions of law recited herein, it is recommended that the Construction Industry Licensing Board enter a Final Order finding Respondent guilty of violating Section 489.129(1)(e), Florida Statutes, and for such violation it is recommended that the Board suspend Respondent's contracting license for a period of three (3) months. It is further recommended that all other charges be dismissed..

Respectfully submitted and entered this 4th day of April, 1986, in Tallahassee, Leon County, Florida.

WILLIAM R. CAVE, Hearing Officer Division of Administrative Hearings The Oakland Building

2009 Apalachee Parkway

Tallahassee, Florida 32399

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 4th day of April, 1986.

COPIES FURNISHED:

W. Douglas Beason, Esquire Department of Professional

Regulation

130 North Monroe Street Tallahassee, Florida 32301

Mr. James L. Muller 1520 Bayshore Drive

Cocoa Beach, Florida 32931

Mr. Fred L. Seely Executive Director Department of Professional

Regulation

Construction Industry Licensing Board

Suite 504

111 East Coast Line Drive Jacksonville, Florida 32202

Fred Roche, Secretary Department of Professional

Regulation

130 North Monroe Street Tallahassee, Florida 32301

================================================================= AGENCY FINAL ORDER

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

STATE OF FLORIDA DEPARTMENT OF PROFESSIONAL REGULATION CONSTRUCTION INDUSTRY LICENSING BOARD

DEPARTMENT OF PROFESSIONAL REGULATION,

Petitioner, CASE no. 52999

DOAH CASE NO. 85-2195

JAMES L. MULLER,

License No. RC 0030261

Respondent.

/

FINAL ORDER

THIS MATTER came before the Construction Industry Licensing Board pursuant to Section 120.57(1)(b)(9), Florida Statutes, on July 10, 1986, in Ft. Myers, Florida for consideration of the Recommended Order (a copy of which is attached hereto and incorporated herein by reference) issued by the hearing officer in the above styled case. The Petitioner was represented by Douglas A. Shropshire. The Respondent was neither present nor represented by counsel.

Upon consideration of the hearing officer's Recommended Order, exceptions filed, and the arguments of the parties and after a review of the complete record in this matter, the Board makes the following findings:

FINDINGS OF FACT

1. The hearing officer's findings of fact are hereby approved and adopted except where such findings are in contradiction with the findings of fact listed in Petitioners Exceptions to Recommended Order and Motion to Increase Penalty which findings are adopted in toto and incorporated herein by reference for the reasons cited in said document which are also adopted in toto and incorporated by reference.

2. There is competent, substantial evidence to support the hearing officer's findings of fact.

CONCLUSIONS OF LAW

1. The Board has jurisdiction of this matter pursuant to the provisions of Section 120.57(1), and Chapter 489, Florida Statutes.

   
   

2. The hearing officer's conclusions of law, are hereby approved and adopted except where such conclusions are in contradiction with the conclusions of law listed in Petitioner's Exceptions to Recommended Order and Motion to Increase Penalty which conclusions are adopted in toto and incorporated herein by reference for the reasons cited in said document which are also adopted in toto and incorporated by reference.

   
   

3. There is competent substantial evidence to support the Board's findings and conclusions.

WHEREFORE, IT IS HEREBY ORDERED AND ADJUDGED:

Respondent's licensure to practice contracting is hereby REVOKED.

Pursuant to Section 10,59, Florida Statutes, the Parties are hereby notified that they may appeal this Order by filing one copy of a Notice of Appeal with the Clerk of the Department of Professional Regulation, 130 N. Monroe Street, Tallahassee, Florida 32301, and by filing fee and one copy of the Notice of Appeal with the District Court of Appeal within thirty (30) days of the effective date of this Order.

This Order shall become effective upon filing with the Clerk of the Department of Professional Regulation.

DONE AND ORDERED this 14th day of August, 1986.

Stanton M. Alexander, Chairman Construction Industry Licensing

Board

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a true and correct copy of the foregoing Final Order has been provided by certified mail to

James L. Muller 1520 Bayshore Drive

Cocoa Beach, Fla. 32931

and by hand delivery/United States mail to the Board Clerk, Department of Professional Regulation and its Counsel, 30 North Monroe Street, Tallahassee, Florida 32301, on or before 5:00 p.m., this 20 day of August, 1986.

James B. Powell

Docket for Case No: 85-002195

Orders for Case No: 85-002195