STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

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

)

Petitioner, )

)

vs. ) CASE NO. 87-4395

)

EDWARD W. ANDREWS, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, this cause was heard by Linda M. Rigot, the assigned Hearing Officer of the Division of Administrative Hearings, on January 12, 1988, in West Palm Beach, Florida.

Petitioner Department of Professional Regulation, Construction Industry Licensing Board, was represented by David L. Swanson, Esquire, Tallahassee, Florida; and Respondent Edward W. Andrews represented himself.

Petitioner filed an Administrative Complaint against Respondent alleging various violations of the construction contracting laws, and Respondent timely requested a formal hearing. Accordingly, the issues for determination herein are whether Respondent is guilty of the allegations contained within the Administrative Complaint, and, if so, what disciplinary action should be taken, if any.

Petitioner presented the testimony of George Silvers, the Respondent, and by way of deposition Roland R. Androy. The Respondent also testified on his own behalf. Additionally, Petitioner's Exhibits numbered 1 and 2 and Respondent's Exhibits numbered 1-3 were admitted in evidence.

Both parties submitted post-hearing proposed findings of fact. A ruling on each proposed finding of fact can be found in the Appendix to this Recommended Order.

FINDINGS OF FACT

1. At all times material hereto, Respondent has been a certified pool contractor in the state of Florida, having been issued License No. CP C029646. At all tines material hereto, Respondent has been the qualifying agent for Pools by Andrews, Inc., and the owner of that company.

   
   

2. On August 21, 1986, George Silvers, a building inspector for the Village of Tequesta, saw people working at a pool site with no identification on the truck parked nearby. When he stopped, he discovered a crew installing- plumbing pipes for a swimming pool. When he asked for identification, Roland R. Androy identified himself as an employee of Pools by Andrews, Inc. Although

   "piping a pool" does not itself require specialized licensure, Silvers asked Androy if he were a licensed contractor, and Androy said that he was not. By way of further identification, Androy produced a personal card which read "Andy's Elite Pools." Silvers "red flagged" the job stopping construction and filed a complaint with the Department of Professional Regulation.

   
   

3. Androy was an employee of Pools by Andrews, Inc., for approximately one year in 1974. He returned to Florida and again became an employee of Pools by Andrews, Inc. in February, 1985. During the remainder of that calendar year Androy drew a regular weekly salary from that company, received holiday pay, and drove a company vehicle. Taxes were deducted from his salary check, and the company provided him with health insurance. Androy was a fast worker and frequently finished piping pools early in the day at which time he was given odd jobs to perform for the company such as building shelves in the warehouse. Androy decided that he could make the same amount of money and substantially shorten his work day if he were paid on a piecework basis rather than for an eight hour work day. That way he would also be able to 'moonlight' by using his free time performing maintenance and repair work for swimming pool owners. Respondent agreed to pay Androy on the basis of piecework rather than a 40-hour work week.

   
   

4. Since January 1, 1986, Androy appears at Pools by Andrews, Inc., at 6:00 a.m. six days a week at which time he is given a list of pools to plumb that day. All materials and equipment necessary to perform the work are supplied by the Respondent. When Androy finishes, he goes home. Every Friday he gives Respondent a list of pools that he piped that week, and Respondent pays Androy by check. Because Androy wanted to be free to leave when he finishes that day's work, he no longer drives a company truck but rather drives his own truck so he does not have to return the truck before he can go home. Under the new salary arrangement, he is paid by the job and no longer receives a regular weekly salary or holiday pay or health insurance. Further, Respondent has ceased deducting withholding tax and social security taxes from Androy's paycheck.

   
   

5. The card which Androy gave to Inspector Silver is a card that he used prior to moving to Florida. He had new cards printed with his Florida address and telephone number. He uses them when persons ask how they can get in touch with him. Respondent had no knowledge of Androy having or using such a card.

   
   

6. As a certified pool contractor, Respondent is aware of the requirements for licensure, that is, installation of a swimming pool must be done by a licensed contractor. However, there is no requirement for licensure for that portion of the installation known as piping a pool. Rather, that work can be performed by anyone under the supervision of a licensed contractor. Further, no separate permit is required for that "plumbing" portion of pool installation.

   
   

7. All permits for the job in question were obtained by Pools by Andrews, Inc., pursuant to Respondent's state licensure. No other permits were necessary for the job, including the work done for Respondent by Androy.

   
   

8. Respondent (like Androy) believes that Androy is an employee of his and not an independent contractor or a subcontractor. There is no intent on Respondent's part to evade he state licensure requirements.

   
   

9. Respondent has had no other disciplinary actions filed against him.

   CONCLUSIONS OF LAW

   
   

10. The Division of Administrative Hearings has jurisdiction over the subject matter hereof and the parties hereto. Section 120.57(1) , Florida Statutes.

    
    

11. The Administrative Complaint filed herein charges Respondent with violating section 489.129(1)(d), Florida Statutes, by being guilty of willful violation of local law. The Administrative Complaint does not identify what local law Respondent is alleged to be guilty of violating, and no evidence regarding that allegation was offered during the final hearing in this cause. Further Petitioner's proposed recommended order does not mention this charge, and it is, accordingly, hereby dismissed.

    
    

12. The Administrative Complaint also charges Respondent with being guilty of section 489.129(1)(e), Florida Statutes, by being guilty of aiding or abetting any uncertified or unregistered person to evade the provisions of chapter 489. Petitioner has failed to meet its burden of proof as to this allegation. Although Petitioner argues extensively the meaning of the term "contractor", Petitioner fails to argue or rely upon any statutory or case law regarding the distinction between an employee and a subcontractor. Petitioner simply takes the position that Androy was not Respondent's employee, without relying upon any legal basis for that conclusion. It is also doubtful whether Petitioner has the authority to declare the existence of an employer/employee relationship status or the nonexistence of such, a matter within the jurisdiction of the federal government for some purposes and within the jurisdiction of state agencies other than Petitioner for other purposes.

    
    

13. Even if Petitioner had proven that Androy was not an employee working under the supervision of a certified pool contractor, the statutory provision relied on by Petitioner requires the elements of knowledge and intent. Both Respondent and Androy believed themselves to be occupying an employer/employee relationship, and the uncontroverted evidence is that any of Respondent's employees could perform the phase of the project being performed by Androy. Since Respondent was properly licensed at the time, since the contract for pool installation was entered into between the homeowner and Pools by Andrews, Inc., since the required permit for installation and construction had been obtained prior to the commencement of the job in question, there is simply no evidence to support a conclusion that Respondent was aiding or abetting any uncertified or unregistered per to evade the construction contracting laws, or that Respondent intended to do so.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions of Law, it is,

RECOMMENDED that a Final Order be entered finding Respondent not guilty and dismissing the Administrative Complaint filed against him in this cause.

DONE and RECOMMENDED this 29th day of February, 1988, at Tallahassee, Florida.

LINDA M. RIGOT, 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 29th day of February, 1988.

APPENDIX TO RECOMMENDED ORDER, CASE NO. 87-4395

1. Petitioner's proposed findings of fact numbered 1, 2, and 4-6 have been adopted either verbatim or in substance in this Recommended Order.

2. Petitioner's proposed finding of tact numbered 2 has been rejected as not being supported by any evidence in this cause.

3. Petitioner's proposed finding of fact numbered 7 has been rejected as being contrary to the evidence in this cause.

4. Respondent's proposed findings of fact numbered 1, 2, 6, 8, 9, and 12 have been adopted either verbatim or in substance in this Recommended Order.

5. Respondent's proposed findings of fact numbered 3, 7, and 10 have been rejected as being irrelevant to the issues under consideration herein.

6. Respondent's proposed findings of fact numbered 4, 5, and 11 have been rejected as not constituting findings of fact but rather as constituting argument of counsel or conclusions of law.

COPIES FURNISHED:

Fred Seely, Executive Director Construction Industry Licensing Board Post Office Box 2

Jacksonville, Florida 32201

David L. Swanson, Esquire

Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32399-0750

Edward W. Andrews 8300 Resource Drive

Riviera Beach, Florida 33404

William O'Neil, Esquire

Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32399-0750

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AGENCY FINAL ORDER

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

STATE OF FLORIDA

DEPARTMENT OF PROFESSIONAL REGULATION CONSTRUCTION INDUSTRY LICENSING BOARD

DEPARTMENT OF PROFESSIONAL REGULATION,

Petitioner,

CASE NO. 74888

vs. DOAH CASE NO. 87-4395

EDWARD W. ANDREWS,

License No. CP C029646

Respondent.

/

FINAL ORDER

THIS MATTER came before the Construction Industry Licensing Board pursuant to Section 120.57(1)(b)(9), Florida Statutes, on May 12, 1988, in Orlando, Florida for consideration of the Recommended Order (a copy of which is attached hereto and incorporated herein by reference). The Petitioner was represented by Douglas A. Shropshire. The Respondent was neither present nor represented by counsel at the Board meeting.

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

FINDINGS OF FACT

1. The hearing officer`s findings of fact numbered 1 through 5 and 7 through 9 are hereby approved and adopted in toto.

   
   

2. The finding of the hearing officer that licensure is not required in order to engage in that portion of pool installation known as piping a pool is rejected as unsupported by the record and as an incorrect statement of law.

   
   

3. There is competent, substantial evidence to support the Board'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 conclusion that the Respondent lacked the requisite knowledge and intent to have violated the provisions of Chapter 489, Florida Statutes, against aiding or abetting an unlicensed contractor is rejected as unsupported by the record.

   
   

3. The hearing officer's remaining conclusions of law are hereby approved and adopted in toto.

   
   

4. Respondent is guilty of violating Section 489.129(1)(e), Florida Statutes.

   
   

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

WHEREFORE, IT IS HEREBY ORDERED AND ADJUDGED:

Respondent, Edward W. Andrews, be and hereby is Reprimanded.

Pursuant to Section 120.59, Florida Statutes, the Parties are hereby notified that they may appeal this Final 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 the 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 9th day of July, 1988.

J. R. Crockett, 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

Edward W. Andrews 8300 Resource Drive

Riveria Beach, Florida 33404

and by hand delivery/United States mail to the Board Clerk, Department of Professional Regulation and its Counsel, 130 North Monroe Street, Tallahassee, Florida 32399-0750, on or before 5:00 p.m., this 8th day of August, 1988.

Docket for Case No: 87-004395

Orders for Case No: 87-004395