STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF PROFESSIONAL )

REGULATION, CONSTRUCTION )

INDUSTRY LICENSING BOARD, )

)

Petitioner, )

)

vs. ) CASE NO. 86-1084

)

THOMAS W. HUNTER, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, William B. Thomas, held a formal hearing in this case on July 8, 1986, in Tavares, Florida. The transcript was filed on July 28, 1986, and the parties were allowed 25 days to submit proposed findings of fact and conclusions of law. These were received from the Petitioner, and they have been accepted. Nothing was filed by the Respondent.

APPEARANCES

FOR PETITIONER: Errol H. Powell, Esquire

130 North Monroe Street Tallahassee, Florida 32301

FOR RESPONDENT: Thomas W. Hunter, in pro per.

502 Citrus Avenue Eustis, Florida 32726

By Administrative Complaint dated January 21, 1986, the Respondent was charged with violating Section 489.129(1)(e), Florida Statutes (1983), by aiding or abetting an uncertified or unregistered person to evade a provision of Chapter 489; with violating Section 489.129(1)(g), Florida Statutes (1983), by doing business in a name not on his State contractor's license; with violating Section 489.129(1)(j), Florida Statutes (1983), by failing to comply with the provisions of Section 489.119, Florida Statutes (1983), in that he failed to qualify a business through which he was contracting; and with violating Section 489.129, Florida Statutes (1983), by engaging in misconduct in the practice of contracting. The issue is whether the Respondent's license as a certified air conditioning contractor should be disciplined for the violations alleged in the Administrative Complaint.

FINDINGS OF FACT

1. At all times material hereto, the Respondent, Thomas W. Hunter, was a certified Class B Air Conditioning contractor, having been issued license number CA C014646, by the State of Florida.

2. At all times material hereto, Derrell Baugh (D. Baugh) was an electrical contractor having been issued a license by the State of Florida. D. Baugh has not had an air conditioning license for Lake County, but has held a City of Eustis air conditioning license for some 15 years.

   
   

3. Gregory Duane Baugh (G. Baugh) is the son of D. Baugh. G. Baugh has not been licensed by the State of Florida.

   
   

4. The Respondent has been doing business as Hunter Air. The Respondent has never qualified Baugh's Electric, and D. Baugh has never qualified Hunter Air.

   
   

5. In approximately 1976, D. Baugh and his son G. Baugh, and the Respondent were partners in the business of Baugh's Electric. There was no written partnership agreement, only a handshake partnership. The Respondent did the air conditioning and refrigeration work, and D. Baugh and G. Baugh did the electrical work. All three of them shared in the profits. If a job involved electrical and air conditioning work, the partner who had already contracted for the job would encourage the main contractor to use the other partner. When the Respondent and D. Baugh were working on the same job, if one partner was behind in his work, the employees of one would assist the one who was behind to complete his work. Further, when working on the same job, and when authorized by the Respondent, D. Baugh would sometimes pull air conditioning permits for the Respondent. This partnership arrangement ended in 1980 or 1982.

   
   

6. After the dissolution of the partnership, the Respondent continued to have access to the checking accounts, and charge accounts with wholesalers, of Baugh's Electric. The Respondent can write checks on the account and charge items with wholesalers.

   
   

7. Even after the partnership dissolved, Baugh's electric continued to use the business cards of the partnership, which included the Respondent's name.

   
   

8. The business part of Baugh's Electric, bookwork and the writing of proposals, is handled by G. Baugh. The field work and troubleshooting is handled by D. Baugh.

   
   

9. On June 30, 1985, G. Baugh prepared an electrical and air conditioning proposal for Gary Wyckoff (Wyckoff) on a spec house being constructed by Wyckoff. The proposal was on proposal paper for the business of Baugh's electric and showed the electrical contractor as G. Baugh, the air conditioning contractor as the Respondent, and a breakdown of the cost for each type of work. The total cost for the work, per the proposal, was $4,170.

   
   

10. Baugh's Electric had performed other work for Wyckoff, but had not always submitted a written proposal. G. Baugh believed that the Lake County Building Department saw no problem with either the proposals of Baugh's Electric, or with the Respondent being on the proposal sheet of Baugh's Electric, as long as it was specified who was going to do what. G. Baugh has written at least six proposals in this manner. The proposal for the Wyckoff job was written as it was because the Respondent had no proposal paper of his own and it was convenient.

    
    

11. Before the Wyckoff job, D. Baugh had a discussion with the Lake County Construction License Investigator, Mary Pasak (Pasak), concerning himself and

    the Respondent working together. D. Baugh was informed that there was nothing wrong with them working together as long as the Respondent did the air conditioning work and obtained the air conditioning permits, and D. Baugh did the electrical work and obtained the electrical permits.

    
    

12. The Respondent testified that he saw nothing wrong with putting multiple proposals from different contractors with different types of licenses on one proposal sheet because he had been employed with companies which engaged in this practice. He testified that he saw nothing wrong with putting his proposal for air conditioning on the same proposal sheet with Baugh's Electric which was to do the electrical work, because everyone who was working on a project, including the Wyckoff job, was made aware of who was doing what.

    
    

13. D. Baugh pulled the electrical permit for the Wyckoff job. As part of the air conditioning work, duct work had to be done. To complete the duct work

    G. Baugh contacted a duct man, James Edwards (Edwards), whom Baugh's Electric had used on several other jobs in the City of Eustis area, because the Respondent was unable to start the job. Edwards knew that he was performing the work under the Respondent's license because he had been informed years ago, during the partnership, that among the partners the Respondent had the air conditioning license. However, Edwards informed the Lake County Building Inspector that he was employed by D. Baugh on the Wyckoff job.

    
    

14. Edwards had neither seen nor had any contact with the Respondent. On all the jobs that Edwards had done duct work on for Baugh's Electric, either D. Baugh or G. Baugh had made the contact with him, given him the okay to do the duct work, or paid him.

    
    

15. Edwards completed the duct work, and was paid by Baugh's Electric. The Respondent reimbursed Baugh's Electric. No permit to perform the air conditioning work, including the duct work, had been pulled before Edwards started and completed the duct work.

    
    

16. Edwards believed that D. Baugh had taken care of the mechanical permit for the air conditioning work. Wyckoff also believed that the mechanical permit had been pulled.

    
    

17. Wyckoff knew that the Respondent had the license to perform the air conditioning work, although he had only seen the Respondent twice. Their contact was usually by telephone.

    
    

18. The Respondent pulled the mechanical permit for the Wyckoff job after Edwards had completed the duct work. Because the Respondent pulled the permit after the work had begun, he had to pay the Lake County Building Department a double fee for this permit. The Respondent pulled the mechanical permit as a favor to Baugh's Electric. The Respondent did not know that the duct work for the air conditioning job had begun. He knew he was to perform some air conditioning work for Wyckoff on a house, but he did not know which house it was, or where it was located.

    
    

19. The Respondent completed the air conditioning work, and on August 21, 1985, submitted to Wyckoff an invoice in the amount of $2,200 for the work. Even though the invoice was on the letterhead of the Respondent's company, Hunter Air, the invoice was filled out by G. Baugh. Wyckoff paid the Respondent for the air conditioning work.

    CONCLUSIONS OF LAW

    
    

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

    
    

21. 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 act enumerated in this section.

    
    

22. The Administrative Complaint alleges that the Respondent violated Section 489.129(1)(e), Florida Statutes (1983), by aiding or abetting an uncertified or unregistered person to evade a provision of Chapter 489; that he violated 489.129(1)(g), Florida Statutes (1983), by doing business in a name not on his State contractor's license; that he violated Section 489.129(1)(j), Florida Statutes (1983), through a violation of Section 489.119, Florida Statutes (1983), by failing to qualify a business through which he was contracting; and that he violated Section 489.129(1)(m), Florida Statutes (1983), by misconduct in the practice of contracting.

    
    

23. Section 489.119 requires a partnership or other legal entity which proposes to engage in contracting to be qualified, through a qualifying agent who must be licensed. The Petitioner has met its burden of proof, and shown that the Respondent failed to qualify Baugh's Electric, a business through which he was contracting. At no time during the handshake partnership was the partnership of Baugh's Electric qualified by the Respondent to engage in air conditioning contracting, although the partnership was actually engaged in air conditioning contracting. The partnership submitted all proposals involving both air conditioning and electrical work, and the proposals were submitted on Baugh's Electric's proposal letterhead.

    
    

24. At no time after the partnership was terminated did the Respondent qualify the partnership or Baugh's Electric. The partnership for all practical purposes continued even after its dissolution, because the Respondent was able to write checks on the Baugh's Electric checking account, and was able to charge items on its charge accounts. Moreover, Baugh's Electric continued to use business cards with the Respondent's name and phone number on them, and the Respondent continued to submit electrical and air conditioning proposals on Baugh's Electric proposal letterheads. The Wyckoff project was in Lake County where Baugh's Electric had no license to perform air conditioning contracting, and the Respondent pulled the building permit which allowed the air conditioning work to be done.

    
    

25. Section 489.129(1)(g) prohibits a contractor from engaging in contracting in a name not on his license. The Petitioner has met its burden to prove that the Respondent was doing business in a name not on his State license. Baugh's Electric through the Respondent was engaging in air conditioning contracting in Lake County without being qualified to do so. At no time did the Respondent qualify Baugh's Electric or the partnership.

    
    

26. Section 489.129(1)(e) prohibits a licensed contractor from aiding or abetting an uncertified or unregistered person from evading the provisions of Chapter 489. The Petitioner has met its burden to prove that the Respondent was aiding or abetting Baugh's Electric to do the air conditioning work on the Wyckoff project. Baugh's Electric was not qualified by the Respondent and could

    not perform air conditioning work in Lake County. The Respondent knew that Baugh's Electric was not licensed to perform air conditioning work in Lake County. The Respondent aided or abetted Baugh's Electric to engage in air conditioning work without proper licensure.

    
    

27. Section 489.129(1)(m) prohibits a contractor from engaging in misconduct in the practice of contracting. The Petitioner has met its burden to prove that the Respondent engaged in misconduct. The Respondent did not know where the Wyckoff job was located, whether it was ready for the air conditioning work, or whether the duct work had begun or been completed. The only knowledge of this job the Respondent had was that there was a Wyckoff job for which he was to do the air conditioning. As a result, the Respondent failed to supervise the activities of the partnership he had with Baugh's Electric, and thus the Respondent engaged in misconduct in the practice of contracting.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Respondent, Thomas W. Hunter, be found guilty as

charged, and that he be assessed an administrative fine in the amount of $1,000.

THIS RECOMMENDED ORDER entered on this 24th day of September, 1986 in Tallahassee, Leon County, Florida.

WILLIAM B. THOMAS

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 24th day of September, 1986.

COPIES FURNISHED:

Errol H. Powell, Esquire

130 North Monroe Street Tallahassee, Florida 32301

Thomas W. Hunter

502 Citrus Avenue Eustis, Florida 32726

Fred Roche Secretary

Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32301

Wings S. Benton, Esquire General Counsel

Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32301

Mr. Fred Seely Executive Director

Department of Professional Regulation

Post Office Box 2 Jacksonville, Florida 32201

Docket for Case No: 86-001084

Orders for Case No: 86-001084