STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF PROFESSIONAL )

REGULATION, )

)

)

Petitioner, )

)

vs. ) CASE NO. 89-4838

)

GERALD S. BARTLETT, )

)

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice the Division of Administrative Hearings, by its duly designated Hearing Officer, K. N. Ayers, held a public hearing in the above- styled case on January 24, 1990, at Tampa, Florida.

APPEARANCES

For Petitioner: Jack M. Larkin, Esquire

806 Jackson Street

Tampa, Florida 33602

For Respondent: Christy L. Hessler, Esquire

5265 Village Market

Wesley Chapel, Florida 33543 STATEMENT OF THE ISSUES

Whether Respondent aided an unlicensed contractor in constructing an addition to the St. John's Missionary Baptist Church in violation of Section 489.129(1)(e), Florida Statutes.

PRELIMINARY STATEMENT

By Administrative Complaint filed April 12, 1989, the Department of Professional Regulation, Petitioner, seeks to revoke, suspend or otherwise discipline the licenses of Gerald Bartlett as a general contractor and plumbing contractor. As grounds therefor, it is alleged that he aided an unlicensed contractor in performing work only a licensed contractor can legally perform.

At the hearing, Petitioner called nine witnesses, including Respondent, Respondent called two witnesses and testified in his own behalf, and nine exhibits were admitted into evidence.

Proposed findings have been timely submitted by the Petitioner. Treatment accorded those proposed findings is contained in the Appendix attached hereto and made a part hereof.

FINDINGS OF FACT

1. At all times relevant hereto, Gerald Bartlett was licensed by the Construction Industry Licensing Board as a Registered General Contractor, having been first licensed in 1973. This license has been periodically renewed through June 30, 1989 (Exhibit 1). It was not valid for Pinellas County.

   
   

2. Melvin Jones, an unlicensed contractor, had performed several jobs in Hillsborough County, the permits for which were pulled by Lee Grimes, a Registered General Contractor, authorized to pull permits in Hillsborough County. For this service Jones paid Grimes 5% of the contract price.

   
   

3. Grimes learned that Jones was trying to acquire contracts to build or remodel churches, Haines City and Wauchula. At one time, Grimes spoke to Respondent about forming a company to construct those projects for which Jones could get contracts, but this was not pursued.

   
   

4. On June 12, 1987, Jones, acting as Christian Builders, negotiated a contract with St. John's Missionary Baptist Church of Clearwater to construct an addition to the church for a contract price of $200,000 (Exhibit 2). He approached Grimes to get the permits pulled.

   
   

5. Grimes contacted Respondent who was then working as a superintendent for EER Corporation, a construction firm. Respondent spoke to Thomas Hebert, Vice-President of EER, who had a statewide general contractor's license, about pulling the permit for the Clearwater church. Both Hebert and Respondent claim they understood Jones was the church representative, and they thought the church intended to perform a lot of the work using members of the church and only wanted someone to inspect the work as it progressed. Hebert agreed that his license be used to pull the permit to help the church, but Respondent would conduct periodic inspection to insure the work was properly performed. Respondent had agreed to inspect the construction for $100 per inspection.

   Jones paid Respondent $500 for this service.

   
   

6. Unbeknownst to Hebert, Grimes acquired Hebert's permit card and prepared an authorization form to pull the permit for the church. Hebert's signature authorizing the pulling of the permit was forged, and Respondent notarized the document. Respondent contends that Grimes "plopped" the documents relating to the church permit down in front of him, and without requiring any signature in his presence or even looking over the documents carefully Respondent put his notary stamp and signature on the document.

   
   

7. Thus armed, Jones and Grimes went to the Clearwater City Hall and obtained the building permit for the church addition. Grimes testified he intended to pull permits for the church jobs in Wauchula and Haines City the same day, but Jones didn't have enough money for the other two jobs. When the permit was issued, Jones gave Grimes $9000, mostly in $100 bills purportedly as 5% of the contract price which Grimes thought was $180,000.

   
   

8. Grimes further testified that he gave $4500 to a then restaurant employee of Respondent, John McCartney, to give to Respondent. McCartney denies ever receiving any cash from Grimes, and Respondent denies receiving anything from Grimes or Jones except the $500 he received to cover the inspections he had agreed to do. McCartney has known Grimes for many years, and had Grimes given him any money at the restaurant he would have put it in the safe and not in his pocket as Grimes testified, and to McCartney's knowledge, Grimes would never give money to anybody.

9. Grimes further testified that he had loaned some $12,000 to Jones to meet his payroll after Jones had given him the money. It is found that Respondent never received any money from Grimes as the latter claims.

   
   

10. After visiting the construction site a few times, Respondent found the work was not being done in accordance with the plans. He discussed these problems with Jones, but when they were not corrected, he advised the church deacons that Jones was incompetent to complete the contract. The church board didn't want to remove Jones at this time, but a few weeks later when the architect and/or city inspectors threatened to stop the project, the church fired Jones and asked EER to supervise construction to completion with the church paying all labor and material costs. EER and Respondent agreed that Respondent would supervise the construction, and the church agreed to pay him

    $100 per day he was on the job site. Thereafter, the project was completed with no further problems.

    
    

11. When Jones was called as a witness, he stated criminal charges were pending against him and invoked his Fifth Amendment privilege against self- incrimination.

    
    

12. At the time Hebert agreed to use his license to pull the church permit, he required the church and Jones to submit a letter (Exhibit 4) stating EER had agreed to pull the permit without fee to the church and to act as consulting and inspection agent.

    
    

    CONCLUSIONS OF LAW

    
    

13. The Division of Administrative Hearings has jurisdiction over the parties to, and the subject matter of, these proceedings.

    
    

14. Respondent is here charged with violating Section 489.129(1)(e), Florida Statutes (1987), which provides the board may take disciplinary action against the license of one who has been found guilty of:

    
    

    Aiding or abetting any uncertified or unregistered person to evade the provi- sions of this act.

    
    

15. At the time Hebert agreed with the Respondent to allow his license to be used to pull the permit for construction of the addition of the St. John's Missionary Baptist Church so long as Respondent inspected the work, both of these individuals believed that Jones represented the church who would be the one paying for all materials and labor. Accordingly, they further believed it was legitimate to pull the permit for the church to allow the church to proceed with the addition. It was not Jones they intended to help; it was the church.

    
    

16. By the use of the words "aiding and abetting," the Legislature intended in order for Respondent to be found guilty there must be evidence that he not only made it possible for Jones to perform unlicensed work but that he intended that such unlicensed work be performed. Blume v. DPR, Construction Industry Licensing Board, 489 So.2d 880 (Fla. 2nd DCA 1986).

    
    

17. Here the Petitioner has the burden to prove, by clear and convincing evidence, the allegations made. Ferris v. Turlington, 510 So.2d 292 (Fla. 1987).

18. The fact that Respondent carried out the inspections and promptly notified the church that Jones was not erecting the addition according to the plans, militate against a finding that Respondent intended for unlicensed work to be performed. Accordingly, Petitioner has failed to sustain its burden.

RECOMMENDATION

It is recommended that a Final Order be entered finding Gerald Bartlett not guilty of violating Section 489.129(1)(e), Florida Statutes (1987), and dismissing the Administrative Complaint.

ENTERED this 20th day of February, 1990, in Tallahassee, Florida.

K. N. AYERS Hearing Officer

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, FL 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 20th day of February, 1990.

APPENDIX TO RECOMMENDED ORDER

Treatment Accorded Petitioner's Proposed Findings 1,2,3 Included in H.O. 1, 2 and 4.

4,5,6 Accepted.

1. Included in H.O. 5 and 6.

2. Included in H.O. 4. 9,10 Included in H.O. 10.

11,12 Rejected as not supported by credible evidence.

1. Accepted insofar as included in H.O. 3.

2. First part accepted. Not aware of Grime's thoughts.

15,16 Accepted insofar as included in H.O. 5. 17,18 Accepted.

1. Accepted insofar as the initial inspections are concerned.

2. Rejected as unsupported by evidence in this record.

3. Rejected as unsupported by credible evidence. See H.O. 6.

4. Rejected.

5. Accepted.

6. Accepted.

7. Accepted.

8. Accepted.

9. Rejected. Accept that Respondent was so told by Grimes.

10. Rejected.

11. Accepted only insofar as included in

    H.O. 7 and 9.

12. Accepted as Grimes' unrebutted testimony.

13. Rejected.

14. Same as 30.

COPIES FURNISHED:

Jack M. Larkin, Esquire 806 Jackson Street

Tampa, FL 33602

Christy L. Hessler, Esquire 5265 Village Market

Wesley Chapel, FL 33543

Fred Seely Executive Director

Construction Industry Licensing Post Office Box 2 Jacksonville, FL 32202

Kenneth D. Easley General Counsel

Department of Professional Regulation

Northwood Centre

1940 North Monroe Street Suite 60

Tallahassee, FL 32399-0792

Docket for Case No: 89-004838

Orders for Case No: 89-004838