STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT of PROFESSIONAL )

REGULATION, CONSTRUCTION )

INDUSTRY LICENSING BOARD, )

)

Petitioner, )

)

vs. ) CASE NO. 90-1629

)

MICHAEL MEINTS, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, this matter came on for hearing in Panama City, Florida, before the Division of Administrative Hearings by its duly designated Hearing Officer, Diane Cleavinger, on June 20, 1990.

APPEARANCES

The parties were represented as follows:

For Petitioner: George W. Harrell

Department of Professional Regulation

Suite 60

1940 North Monroe Street Tallahassee, Florida 32399-0792

For Respondent: No appearance

STATEMENT OF THE ISSUES

The issue at the hearing was whether Respondent's pool contracting license should be disciplined for alleged violations of Chapter 489, Florida Statutes.

PRELIMINARY STATEMENT

On June 28, 1989, the Department of Professional Regulation filed an Administrative Complaint against Respondent, Michael Meints. The Administrative Complaint alleged that the Respondent was guilty of violating 489.129(1)(h), Florida Statutes, by failing to pay a materials bill resulting in a lien; 489.129(1)(g), Florida Statutes, by acting as a contractor in a capacity other than as set forth on Respondent's registration; 489.129(1)(d), Florida Statutes, by failing to call for a final inspection; and 489.129(1)(j), Florida Statutes, by advertising availability as a contractor without including his certification or registration number. Respondent disputed the allegations of the Administrative Complaint and requested a formal hearing. Respondent's request was forwarded to the Division of Administrative Hearings.

At the hearing, Petitioner presented two witnesses and offered Into evidence nine exhibits. Respondent did not appear at the hearing.

Petitioner filed its Proposed Recommended Order on July 12, 1990.

Petitioner's proposed Findings of Fact have been considered and utilized in the preparation of this Recommended Order except where such proposals were not supported by the weight of the evidence or were immaterial, cumulative or subordinate. Specific rulings on Petitioner's proposed Findings of Fact are contained in the Appendix to this Recommended Order.

FINDINGS OF FACT

1. Respondent is a licensed pool contractor in Panama City, Bay County, Florida, holding license number RP 0053231. Respondent was registered as an individual with the Board. The address given on his pool contractor's license was 3414 Jenks Avenue, Panama City, Florida. National Pools of Panama City, Inc. was not registered or certified as a contractor with the Board. National Pool's address was 3416 Jenks Avenue, Panama City, Florida. No clear and convincing evidence was presented as to whether Respondent had any knowledge of National Pool's unregenerate and incertitude status.

   
   

2. On February 16, 1988, Robert D. Hay entered into a contract with National Pools of Panama City, Inc., for the construction of a pool on his property located at 1000 Kimberly Lane, Lynn Haven, Florida. The price of the pool was $9,310.92. The contract established a schedule of payments for the construction of the pool. Each payment was made upon completion of a certain portion of the construction work. The contract also provided that National Pools would pay for all work and materials used in the construction of the pool.

   
   

3. A building permit was obtained for the construction of the pool. No evidence was submitted on who actually pulled the construction permit. The contractor listed on the building permit was Respondent and the construction was supervised by Respondent. The pool was completed to Mr. Hay's satisfaction and he paid the last installment payment to National Pools. 1/ Mr. Hay received a release of lien from Vance White. Mr. White was the president of National Pools.

   
   

4. However, Mr. Hay later learned That National Pools had not paid for some materials which had been used in the pool's construction. The supplied of the materials filed a lien In the amount of $1,718.49 on Mr. Hay's property. Mr. Hay attempted to get National Pools to pay the lien. However, the lien was never satisfied by National Pools. Eventually, Mr. Hay was forced to pay the lien plus attorney's fees and court costs or else have the lien foreclosed on his property. The amount Mr. Hay was forced to pay in order to clear the title to his property was $2,615.41.

   
   

5. There was no substantial evidence submitted which demonstrated Respondent's relationship to National Pools. The fact that Respondent's name appeared on the building permit does not support a finding that Respondent is the primary contracting agent for National Pools. Likewise, the fact that Respondent's address on his license was next door to National Pools does not support a finding that Respondent is the primary contracting agent for National Pools. It is just as likely an inference that Respondent was not the qualifying agent for National Pools, but was its subcontractor and it is National Pools and its officers who are violating the provisions of Chapter 489, Florida Statutes.

   CONCLUSIONS OF LAW

   
   

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

   
   

7. Chapter 489, Florida Statutes, is the chapter regulating the business of contracting in the State of Florida. The Chapter regulates many types of contractors, including pool contractors.

   
   

8. 489.129, Florida Statutes, is the statutory section which regulates the discipline of contractors. 489.129 provides in part:

   
   

   The board may revoke, suspend, or deny the issuance or renewal of the certificate or registration of a contractor, require financial restitution to a consumer, impose an administrative fine not to exceed $5,000, place a contractor on probation, require continuing education, assess costs associated with investigation and prosecution, or reprimand or censure a contractor if the contractor, or the business organization for which the contractor is a primary qualifying agent or is a secondary qualifying agent . , is found guilty

   of any of the following acts:

   1. Obtaining a certificate or registration by fraud or misrepresentation.

      1. Willfully or deliberately disregarding and violating the applicable building codes or laws of the state or of any municipalities or counties thereof.

      2. Performing any act which assists a person or entity in engaging in the prohibited or uncertified and unregistered practice of contracting, if the certificate holder or registrant knows or has reasonable grounds to know that the person or entity was uncertified and unregistered.

      1. Acting in the capacity of a contractor under any certificate or registration issued hereunder except in the name of the certificateholder or registrant as set forth on the issued certificate or registration.

      2. Committing mismanagement or misconduct in the practice of contracting that causes financial harm

      to a customer. Financial mismanagement or misconduct occurs when:

      I. Valid liens have been recorded against the property of a contractor's customer for supplies or services ordered by the contractor for the job; the contractor has received funds for the supplies or services; and the contractor has not had the liens removed from the property, by payment or by bond, within 30 days after the date of such liens.

      (j) Falling in any material respect to comply witch the provisions of this part.

9. However, 429.129, Florida Statutes, must be read in pari materia with the other provisions of Chapter 489. A "contractor" is defined In 489.105(3), Florida Statutes, as "the person who is qualified for and is responsible for the entire project contracted for ." The basic scheme of Chapter 489, Florida Statutes, is to permit a person individually to be a contractor and engage in the contracting business. However, the Chapter also permits a business entity to engage in the business of contracting so long as that entity has a contractor who serves as a qualifying agent for that entity. 489.119, Florida Statutes. A qualifying agent must be a certified or registered contractor In the area for which licensure is sought. If the entity qualifies through its agent for certification or registration, the license is issued to the qualifying agent with the business entity noted on that license. All qualifying agents are considered to be primary qualifying agents unless they are secondary qualifying agents. 489.1195, Florida Statutes.

   
   

10. The primary contracting agent is responsible for all the financial transactions involved in a regular construction contract as if he were personally liable to perform those duties under the contract. 489.1195, Florida Statutes. However, a business entity may also have a secondary contracting agent. The secondary contracting agent is only responsible for supervision of the field work on a construction contract and is not otherwise responsible for the financial requirements of a construction contract, unless there is a specific agreement to the contrary.

    
    

11. All registered or certified contractors are required to put their registration or certification number on each application for a building permit and on each building permit issued and recorded. 489.119(5)(a) Florida Statutes. Additionally, all contractors are required to place their certificate or registration numbers in any advertisement issued by that contractor. 489.119(5)(b), Florida Statutes.

    
    

12. It is the Department's burden to show by clear and convincing evidence that Respondent is the qualifying, and therefore, primary contracting agent for National Pools. In this case, the Department has failed to submit any evidence of Respondent's relationship to National Pools. Failing to submit such evidence, the Department cannot impose a primary contracting agent's responsibility for the financial requirements of a construction contract on Respondent. This is especially true where, as here, there is no evidence which suggests that Respondent either received the funds for the pool or had any control over the disbursement of funds received by National Pools. Therefore, Respondent's license is not subject to discipline for acts which, under the evidence presented, appear to be those of a separate entity.

    
    

13. Likewise, Respondent cannot be disciplined under the allegations of the complaint involving advertising or for his name appearing on the building permit. All of the advertisements submitted into evidence were advertisements for National Pools. There was no evidence submitted that Respondent placed or authorized the placement of those advertisements in the telephone directory. Similarly, there was no clear or convincing evidence that Respondent authorized the placement of his name on the building permit.

    
    

14. Finally, no evidence was submitted on the allegation of the Administrative Complaint involving the final inspection of the pool. Therefore, Respondent cannot be disciplined under Chapter 489, Florida Statutes, based on those allegations.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Board enter a Final Order dismissing the

Administrative Complaint against Respondent.

DONE and ENTERED this 2nd day of August, 1990 in Tallahassee, Florida.

DIANE CLEAVINGER

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 2nd day of August, 1990.

ENDNOTES

1/ All of the earlier installment payments had also been paid to National Pools. None of the payments appear to have been made to Respondent. The endorsement on the checks for each installment payment was "National Pools".

APPENDIX TO THE RECOMMENDED ORDER IN CASE NO. 90-1629

1. The facts contained in paragraphs 2, 3, 4, 6, 7 and 8 of Petitioner's Proposed Findings of Fact are adopted in substance, in so far as material.

2. The facts contained in paragraph 1 of Petitioner's Proposed Findings of Facts are subordinate.

3. The facts contained in paragraphs 5 and 9 of Petitioner's Proposed Findings of Facts were not shown by the evidence.

   
   

   COPIES FURNISHED:

   
   

   George W. Harrell Department of Professional Regulation

   Suite 60

   1940 North Monroe Street Tallahassee, Florida 32399-0792

   
   

   Michael Meints

   2114 East Norwood Drive Panama City, Florida 32405

   Fred Seely Executive Director Post Office Box 2

   Jacksonville, Florida 32202

   
   

   Kenneth E. Easley, Esquire Department of Professional Regulation

   Suite 60

   1940 North Nonroe Street Tallahassee, Florida 32399-0792

   
   

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

   AGENCY FINAL ORDER

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

   
   

   STATE OF FLORIDA DEPARTMENT OF PROFESSIONAL REGULATION CONSTRUCTION INDUSTRY LICENSING BOARD

   
   

   DEPARTMENT OF PROFESSIONAL REGULATION,

   
   

   Petitioner,

   
   

   -vs- CASE NO.: 108459

   DOAH CASE NO.: 90-1629

   MICHAEL H. MEINTS LICENSE NO.: RP 0053231,

   
   

   Respondent.

   /

   
   

   FINAL ORDER

   
   

   THIS MATTER came before the Construction Industry Licensing Board (hereinafter referred to as the "Board") pursuant to Section 120.57(1)(b)(9), Florida Statutes, on October 11, 1990, in Tampa, Florida, for consideration of the Recommended Order (a copy of which is attached hereto and incorporated herein by reference). The Petitioner was represented by Wellington Meffert.

   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, including the exceptions filed, the Board makes the following:

   
   

   FINDINGS OF FACT

   
   

   1. The Hearing Officer's Findings of Fact are hereby approved and adopted in toto.

   2. There is competent, substantial evidence to support the Hearing Officer's Findings of Fact.

      
      

   3. The Petitioners Exceptions to Recommended Order is hereby approved and adopted and incorporated by reference.

      
      

   4. Petitioner's Exhibit One is a certified copy of permit 16013 issued to Respondent on June 27, 1988. Accordingly Respondent is found to have pulled the permit for construction of the pool referenced to in the case at bar.

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 Officers Conclusions of Law are hereby approved and adopted except where they are contradicted by the Petitioner's Exceptions to Recommended Order which is hereby approved and adopted and incorporated herein by reference.

   
   

3. Respondent is guilty of violating Section 489.129(1)(g), Florida Statutes.

   
   

4. The penalty recommended by the Hearing Officer is hereby rejected as inconsistent with the findings and conclusions of the board.

   
   

5. There is competent, substantial evidence to support the Boards findings and conclusions.

WHEREFORE, IT IS HEREBY ORDERED AND ADJUDGED:

Respondent shall pay to the Board, a fine of seven hundred fifty dollars ($750.00), and all Respondent's contracting licensure shall be suspended for twenty (20) years and indefinitely thereafter until Respondent pays said fine.

Provided, however, that said suspension will be terminated early without further Board action at any time that Respondent shall both pay said fine and provide to the Executive Director of the Board the following written statement, bearing the notarized signature of Robert D. Hay, the statement to read exactly as follows: "This is acknowledgment that contractor Michael H. Meints and I have settled our dispute." In no event shall Respondent resume use of his licensure under this latter provision until notified in writing by the Executive Director that said licensure has been restored to good standing.

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, Northwood Centre, 1940 N. Monroe Street, Tallahassee, Florida 32399-0792, 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 23rd day of December, 1991.

J. DAVID CRAWFORD, 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 U.S. Mail to

Michael H. Meints 3414 Jenks Avenue

Panama City, FL 32405

and by hand delivery/United States Mail to the Board Clerk, Department of Professional Regulation and its Counsel, Northwood Centre, 1940 North Monroe Street, Tallahassee, Florida 32399-0792, on or before 5:00 p.m., this 23rd day of January, 1991.

Docket for Case No: 90-001629

Orders for Case No: 90-001629