STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

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

)

Petitioner, )

)

vs. ) CASE NO. 88-5192

)

DAVID W. MILAM, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, James E. Bradwell, held a public hearing in this case on February 24, 1989, in Tampa, Florida.

APPEARANCES

For Petitioner: David Bryant, Esquire

13014 Dale Mabry

Tampa, Florida 33602

For Respondent: David W. Milam, pro se

2115 38th Terrace South

New Port Richey, Florida 34655 ISSUE PRESENTED

The issue presented for decision herein is whether or not Respondent aided an unlicensed contractor by obtaining or authorizing the obtaining of a permit for construction jobs, using Respondent's licensure; conducted business under a name which is not on his license and which he fail to qualify and failed to properly supervise construction work and finances on a construction project in violation of Subsections 489.129(1)(e), (g), and (j), Florida Statutes.

FINDINGS OF FACT

Based upon my observation of the witnesses and their demeanor while testifying, documentary evidence received, and the entire record compiled herein, I make the following relevant factual findings:

1. During times material hereto, Respondent was a certified residential contractor having been issued license number CR C018874 since 1981.

   
   

2. Respondent, during late 1986, was approached by a Mr. Marlar, owner of Pinellas Builders, who requested that Respondent affiliate with Pinellas Builders using his licensure to qualify Pinellas. Respondent tentatively agreed to a business arrangement with Marlar, however, prior to the time that

   Respondent formally qualified Pinellas, the negotiations broke down and Respondent never formally qualified Pinellas.

   
   

3. During January, 1987, Pinellas entered into a contract with a customer, John Kane of Clearwater, Florida, to build an addition to Mr. Kane's residence for a sum of $33,000. (Petitioner's Exhibit 1.) Pinellas was required to obtain a permit to construct the addition to Kane's residence. Pinellas obtained the permit and utilized Respondent's license to do so.

   
   

4. Kane encountered difficulty with Pinellas as the subcontractors were not paid and liens and/or notices of intent to file liens were placed on his home. Mr. Kane ultimately had to rehire the subcontractors and pay them directly resulting in an additional expenditure by Kane of approximately $10,000 over and above the amount that Pinellas agreed to complete the addition to his home.

   
   

5. During June of 1987, Kane filed a complaint with Petitioner and in connection therewith, Petitioner's investigator, H. Dennis Force, spoke to Respondent via telephone respecting the fact that permits were being pulled under his name. Respondent was unaware that Pinellas was utilizing his name as a qualifier to obtain permits nor was Respondent aware that Pinellas had obtained contracts to perform work utilizing his name as the licensing authority. As a result of Investigator Force's conversations with Respondent, Respondent revoked the letter of authorization given to Marlar during April, 1987.

   
   

6. Respondent distributed copies of the revocation of authorization given to Marlar to the various local cities in the surrounding area. Respondent acknowledges his liability as a qualifier and accepts that responsibility. Respondent is not presently affiliated with any corporate entity in that he prefers to work as an individual such that he can insure the quality which he strives for comes to reality.

   
   

7. Mr. Kane acknowledges that he never saw Respondent on the jobsite and had never met him during any of the negotiations with Marlar (Pinellas).

   
   

8. Respondent received no monies from Kane or any other persons who had entered dealings with Pinellas.

   
   

   CONCLUSIONS OF LAW

   
   

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

   
   

10. The parties were duly noticed pursuant to the notice provisions of Chapter 120, Florida Statutes.

    
    

11. The authority of the Petitioner is derived from Chapter 489, Florida Statutes.

    
    

12. Competent and substantial evidence was offered herein to establish that Respondent gave Mr. Marlar, owner of Pinellas, a letter of authorization authorizing him to use his license to qualify and obtain permits through Pinellas. As qualifier, Respondent is liable for the acts of the business organization which he qualifies. Based thereon, Respondent aided Pinellas in obtaining a permit in violation of Section 489.129(1)(e), Florida Statutes.

13. Insufficient evidence was offered to establish that Respondent utilized a business name which was not on his license and did not qualify, or that he failed to either properly supervise the construction work or the finances on the construction job in violation of Chapter 489, based on the evidence herein which reveals that Respondent had no knowledge of nor did he intend to permit Pinellas to either utilize his name to obtain permits, and thus, there was no obligation on Respondent's part to either qualify Pinellas or to supervise either the construction work or manage the finances for projects entered into by Pinellas under the circumstances.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner enter a final order imposing a civil penalty of

$500 payable to Petitioner within thirty (30) days and issuing a written letter of reprimand to Respondent based on his authorization of an unlicensed person to use his name to obtain permits. 1/

DONE and ENTERED this 7th day of April, 1989, in Tallahassee, Leon County, Florida.

JAMES E. BRADWELL

Hearing Officer

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 7th day of April, 1989.

ENDNOTES

1/ This recommendation is in keeping with the requirements of Section 21E- 17.001(13), Florida Administrative Code.

COPIES FURNISHED:

David Bryant, Esquire 13014 Dale Mabry

Tampa, Florida 33602

David W. Milam

2115 38th Terrace South

New Port Richey, Florida 34655

Fred Seely, Executive Director Construction Industry Licensing Board

111 East Coastline Drive Jacksonville, Florida 32202

Kenneth E. Easley, Esquire General Counsel

Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32399-0750

Docket for Case No: 88-005192

Orders for Case No: 88-005192