STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

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

)

Petitioner, )

)

vs. ) CASE NO. 86-5031

)

WILLIE DANIELS, )

)

Respondent. )

)

RECOMMENDED ORDER

Final hearing in the above-styled action was held in Orlando, Florida, on February 26, 1987 before Mary Clark, Hearing Officer of the Division of Administrative Hearings.

The parties were represented as follows:

For Petitioner: G. Vincent Soto, Esquire

Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32399-0750

For Respondent: William H. Corbley, Esquire

217 North Eola Drive Orlando, Florida 32801

BACKGROUND AND PROCEDURAL MATTERS

An administrative complaint was filed by Petitioner on November 10, 1986, alleging that Respondent violated provisions of Chapter 489 F.S., related to his roofing contractor's license. This proceeding was initiated by Respondent's request for a formal hearing.

At the hearing Petitioner presented the testimony of four witnesses, including the Respondent, and submitted seven exhibits, all of which were received into evidence. Respondent presented no testimony, other than his own, and no exhibits.

Following the hearing and receipt of the transcript, Petitioner submitted a proposed recommended order. The proposed findings of fact are addressed in the attached appendix.

ISSUE

The issue in this proceeding is whether Willie Daniels violated sections 489.129(1)(d) and (e) F.S., as alleged in the administrative complaint, by

willful violation of a local building code

and

aiding and abetting an unlicensed person to evade any provision of Chapter 489.

At the hearing the material facts were uncontroverted.

FINDINGS OF FACT

1. Willie F. Daniels is now, and was at all times relevant, licensed as a roofing contractor by the Florida Construction Industry Licensing Board. He holds license #RC 0027954 and does business as "Daniels Roofing', a sole proprietorship. He has been doing roofing in the Orlando, Florida area since 1954.

   
   

2. Willie Daniels first met Thomas Dahlman when Dahlman came to his house trying to sell windows. Dahlman told him that he did all kinds of work, including windows, roofing and painting. Later Dahlman called him and said he had a roofing job that he wanted Daniels to do and that he would take him out to the house.

   
   

3. The house belonged to Chris Correa and was located at 4421 Sebastian Way, in Orlando. Dahlman bought the materials for the job and Willie Daniels provided a day and a half labor on the roof. He was paid approximately $600.00 by Dahlman.

   
   

4. Chris Correa was initially contacted by an agent for Thomas Dahlman who was trying to sell solar heating devices. When she told him she really needed a new roof, he said his boss could arrange that. Dahlman arranged for her loan to pay for the roof and arranged for the labor to be done by Willie Daniels.

   
   

5. Chris Correa paid Thomas Dahlman $3,000 for the roof. About three days after the roof was completed, on February 18, 1986, she signed a contract for the roof work with Dahlman Enterprises, Inc. The contract is signed Thomas Dahlman and by Ms. Correa. Willie Daniels was not a party to the contract.

   
   

6. The City of Orlando has adopted the Standard Building Code, including the following provision relating to permit applications:

   
   

   Section 105 - Application for Permit

   1. - When Required

      1. Any owner, authorized agent, or contractor who desires to construct, enlarge, alter, repair, move, demolish, or change the occupancy of a building or structure, ... or to cause any such work to be done, shall first make application to

   the Building Official and obtain the required permit therefor.

   * * *

   
   

7. No permit was applied for or obtained for the roofing job on Chris Correa's house.

   
   

8. Willie Daniels assumed Thomas Dahlman was a licensed contractor because Dahlman told him he was in the business of doing roofing, painting, installing

   windows and similar work. He did not ask Dahlman if he was licensed. Dalhman was, in fact, not a licensed contractor.

   
   

   CONCLUSIONS OF LAW

   
   

9. The Division of Administrative Hearings has jurisdiction over the subject matter and parties to this proceeding. Section 120.57(1) F.S., Section 455.225(4) F.S.

   
   

10. Willie Daniels is charged with violations of subsections 489.129(1)(d) and (e) F.S., which provide as follows:

    
    

    489.129 Disciplinary proceedings.--

    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. Willful or deliberate disregard and violation of the applicable building codes or laws of the state or of any municipalities or counties thereof.

    2. Aiding or abetting any uncertified or unregistered person to evade any provision of this act.

    
    

11. The section of the building code placed in evidence in this proceeding requires that an owner, authorized agent or contractor obtain a building permit. (See Finding of Fact, paragraph 6, above) No evidence was adduced that the individuals involved in the roofing job had any agreement as to which among them would be responsible for the permit. The building code does not assign primary responsibility to the contractor. The Department failed to prove that Willie Daniels was responsible, rather than Chris Correa or Thomas Dahlman, for obtaining the City of Orlando building permit. No evidence was produced regarding the responsibility for assuring that inspections are done by a local building official.

    
    

12. The Department also failed to prove that Willie Daniel knew that Thomas Dahlman was an unlicensed contractor. Rather, the evidence indicated that Mr. Daniels assumed that Dahlman was licensed, and he did not inquire further, because Dahlman was going around selling contracting services. Chapter 489 does not specifically require a licensee to verify that one with whom he contracts is licensed to do the work. Failure to verify, standing alone, is an insufficient basis for finding the intent required to make one an aider or abettor. Blume v. Department of Professional Regulation, Construction Industry Licensing Board 489 So.2nd 880, 882 (Fla 2nd DCA 1986).

    Based upon the foregoing, it is hereby, RECOMMENDED:

    That a final order be entered dismissing the administrative complaint against Willie Daniels.

    
    

    DONE and RECOMMENDED this 30th day of April, 1987 in Tallahassee,

    Florida.

    
    

    MARY CLARK

    Hearing Officer

    Division of Administrative Hearings The Oakland Building

    2009 Apalachee Parkway

    Tallahassee, Florida 32399-1550

    (904) 488-9675

    
    

    Filed with the Clerk of the Division of Administrative Hearings this 30th day of April, 1987.

    
    

    APPENDIX TO RECOMMENDED ORDER, CASE NO. 86-5031

    
    

    The following constitute my specific rulings on Petitioner's proposed findings of fact:

    
    

    1-2. Adopted in paragraph #1.

    1. Adopted in paragraph #4.

    2. Adopted in paragraph #6.

    3. Adopted in paragraph #3.

    4. Adopted in substance in paragraph #3.

    5. Adopted in paragraph #7.

    6. Adopted in paragraph 4:3.

    7. Adopted in paragraph #3.

    8. Rejected as unnecessary.

    9. Adopted in paragraph #4.

    10. Adopted in paragraph #6.

    11. Rejected as unnecessary.

    12. Rejected as unnecessary.

COPIES FURNISHED:

Fred Seely, Executive Director Department of Professional Regulation Construction Industry Licensing Board Post Office Box 2

Jacksonville, Florida 32201

Van Poole, Secretary

Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32399-0750

Joseph A. Sole, Esquire General Counsel

Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32399-0750

G. Vincent Soto, Esquire

Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32399-0750

William H. Corbley, Esquire

217 North Eola Drive Orlando, Florida 32801

Docket for Case No: 86-005031

Orders for Case No: 86-005031