STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF PROFESSIONAL )

REGULATION, CONSTRUCTION )

INDUSTRY LICENSING BOARD, )

)

Petitioner, )

)

vs. ) CASE NO. 89-748

)

STEVEN ARY, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was conducted in this case on April 7, 1989, at Fort Lauderdale, Florida, before Claude B. Arrington, a duly designated Hearing Officer of the Division of Administrative Hearings. Appearances for the parties at the hearing were as follows:

For Petitioner: Elizabeth R. Alsobrook, Esquire

Department of Professional Regulation 1940 North Monroe Street

Tallahassee, Florida 32399-0729

For Respondent: Steven Ary, pro se

1217 N. E. 4th Street Pompano Beach, Florida 33306

PRELIMINARY STATEMENT

This is a license discipline case in which the Petitioner seeks to take disciplinary action against the Respondent on the basis of allegations that Respondent committed several violations of the licensing laws. It is alleged that Respondent did the following in connection with a particular job undertaken by an unlicensed air conditioning contractor:

1. aided the unlicensed contractor by obtaining or by authorizing the obtaining of a permit for said job, using his licensure, thereby violating Sections 489.129(1) (e), (m) (j) ; 489.119 and 489.105(4) , Florida Statutes,

2. did business under a name not on his license and which he did not qualify, in violation of 489.129(1) (g) , (j) and 489.119, Florida Statutes,

3. committed gross negligence, incompetency, or misconduct with said job, in violation of Section 489.129(l) (m), Florida Statutes, and

4. failed to properly supervise the job site activities on said job, in violation of 489.129(1) (m) (j) ; 489.119; and 489.105(4), Florida Statutes.

At the final hearing, the Petitioner appeared through counsel and offered evidence in support of the allegations in the Administrative Complaint. The evidence consisted of the testimony of six witnesses and six documentary exhibits, all of which were received into evidence. Respondent testified on his own behalf, but called no other witnesses and produced no documentary evidence. Following the hearing, the Petitioner filed a proposed recommended order containing proposed findings of fact and conclusions of law. The Respondent has not filed post-hearing documents. All findings of fact proposed by the Petitioner are addressed in the appendix attached to this recommended order.

FINDINGS OF FACT

Based on the evidence received at the final hearing, the following findings of fact are made.

1. At all times material to this case, the Respondent, Steven Ary, was a licensed air conditioning contractor in the State of Florida, holding license number CA CO36888.

   
   

2. On October 20, 1987, a company named Jenni Temp Refrigeration Company, Inc., entered into a contract with Lauderhill Mall, Lauderhill, Florida, to install three 3 1/2 ton air conditioning units for the sum of $7,875. Jenni Temp was to provide the three separate permits required by the City of Lauderhill, Florida, for the installation.

   
   

3. Joseph Roturra, the owner of Jenni Temp Refrigeration Company, Inc., and Respondent had, prior to October 20, 1987, entered into negotiations whereby Respondent would become employed by Jenni Temp as its qualifying agent so that Jenni Temp could engage in air conditioning contracting. Those negotiations ended before any formal efforts were made to have Jenni Temp licensed with Respondent as the qualifying agent.

   
   

4. In late 1987, before his negotiations with Jenni Temp broke down, Respondent signed three blank application forms for electrical and air conditioning permits. Respondent then gave the three signed application forms to Joseph Roturra. Respondent knew that neither Joseph Roturra nor his company was licensed for air conditioning work.

   
   

5. Joseph Roturra completed the signed blank application forms he received from Respondent and made application with the City of Lauderhill, Florida, for the three permits required for the job at Lauderhill Mall. The name of the applicant on the applications as completed by Joseph Roturra was All Star Service, Inc. Respondent served as the qualifying agent for All Star Service, Inc.

   
   

6. The City of Lauderhill did not issue the permits for which Roturra applied using the forms signed by Respondent because permits had been previously issued to another company for the same job.

7. Jenni Temp completed the Lauderhill Mall job without the permits required by local law and without further assistance from Respondent. Respondent did not supervise the job at Lauderhill Mall. There was no final inspection of the work as required by local law.

   
   

   CONCLUSIONS OF LAW

   
   

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

   
   

9. Section 489.129(1), Florida Statutes, authorizes the Construction Industry Licensing Board to take disciplinary action against a contractor when the contractor is found guilty of various specified acts, including the following:

   
   

   (e) Aiding or abetting any uncertified or unregistered person to evade any provision of this act.

   * * *

   (g) 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 of fraud or deceit or of gross negligence, incompetency, or misconduct in the practice of contracting.

   
   

10. Petitioner has the burden of proving by clear and convincing evidence that the Respondent committed the acts alleged in the administrative complaint. See Ferris v. Turlington, 510 So.2d 292 (Fla 1987).

    
    

11. Petitioner has proved by clear and convincing evidence that Respondent aided Joseph Roturra, d/b/a Jenni Temp Refrigeration Co., an unregistered or uncertified person, to evade the provisions of Part I of Chapter 489, Florida Statutes, in violation of Section 489.129(1)(e), Florida Statutes, by signing the blank permit application forms and turning the signed forms over to Joseph Roturra. These application forms were used by Joseph Roturra in his scheme to engage in air conditioning contracting as an unregistered or uncertified person in violation of Section 489.127(1)(f), Florida Statutes.

    
    

12. Petitioner has failed to prove by clear and convincing evidence that Respondent did business as Jenni Temp Refrigeration Co. in violation of Section 489.129(1)(g), Florida Statutes, or that Respondent had the duty to supervise the job site activities.

13. Petitioner has proved by clear and convincing evidence that Respondent engaged in misconduct in the practice of contracting in violation of Section 489.129(1)(m), Florida Statutes by signing the blank permit application forms and turning the blank forms over to an unregistered or uncertified person.

    
    

14. Rule 21E-17.001, Florida Administrative Code, sets forth the normal penalty guidelines and, pertinent to this case, provides:

    
    

    (13) 489.129(1)(e): Aiding or abetting evasion of Ch. 489. First violation, $500 to

    $1500 fine;

    * * *

    (19) 489(1)(m): Gross negligence, incompetence, and/or misconduct, fraud or deceit.

    (a) Causing no monetary or other harm to licensee's customer, and no physical harm to any person. First violation, $250 to $750 fine;

    
    

15. Respondent's conduct did not cause monetary or other harm to another. This was Respondent's first violation.

RECOMMENDATION

Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that a final order be entered finding Respondent guilty of

having violated Sections 489.129(1)(e) and (m), Florida Statutes and which

imposes an administrative fine on Respondent in the amount of $500 for the violation of Section 489.129(1)(e), Florida Statutes. It is further recommended that there not be a separate fine for the violation of Section 489.129(1) (m), Florida Statutes, because the conduct that establishes that violation is the same conduct which constitutes the violation for which the administrative fine is recommended.

DONE and ENTERED this 22nd day of May, 1989, in Tallahassee, Florida.

CLAUDE B. ARRINGTON

Hearing Officer

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32301

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 22nd day of May, 1989.

APPENDIX

The findings of fact contained in paragraphs 1, 2, 3, 4, 5, 6, 7, 8, 9, l0,

13, 14, 15, 19 and 20 of Petitioner's proposed findings of fact are adopted in substance, insofar as material.

The findings of fact contained in paragraphs 11, 12, 16, 17 and 18 of Petitioner's proposed findings of fact are immaterial.

COPIES FURNISHED:

Kenneth E Easley, General Counsel Department of Professional Regulation 1940 North Monroe Street

Tallahassee, Florida 32399-0729

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

Jacksonville, Florida 32201

Elizabeth R. Alsobrook, Esquire Department of Professional Regulation 1940 North Monroe Street

Tallahassee, Florida 32399-0729

Steven Ary

1217 N. E 4th Street

Pompano Beach, Florida 33306

Docket for Case No: 89-000748

Orders for Case No: 89-000748