STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF PROFESSIONAL )

REGULATION, CONSTRUCTION )

INDUSTRY LICENSING BOARD, )

)

Petitioner, )

)

vs. ) CASE NO. 90-2046

)

JOSEPH W. MIKLAVCIC. )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings by its duly designated Hearing Officer, William R. Cave, held a public hearing in the above- captioned case on August 10, 1990 in Inverness, Florida.

APPEARANCES

For Petitioner: G. W. Harrell, Esquire

Department of Professional Regulation

1940 N. Monroe Street, Suite 60

Tallahassee, FL 32399-0750

For Respondent: C. Geoffrey Vining, P.A.

2212 South Florida Avenue, Suite 300

Lakeland, FL 33803 STATEMENT OF THE ISSUES

Whether Respondent's license as a certified building contractor in the state of Florida should be revoked, suspended or otherwise disciplined under the facts and circumstances of this case.

PRELIMINARY STATEMENT

The original two-count administrative complaint dated October 17, 1989 and filed with the Division of Administrative Hearings on April 2, 1990 alleged that Respondent violated Section 489.129(1)(h), Florida Statutes. By order dated July 31, 1990 the administrative complaint was amended without objection from Respondent by adding three additional counts. The Amended Administrative Complaint alleges that Respondent violated Section 489.129(1)(e)(f)(h)(k) and (m), Florida Statutes.

On August 9, 1990 the Respondent filed a Motion To Quash Probable Cause Determination which treated as a Motion To Dismiss and heard before the formal hearing. As grounds for the motion, the Respondent alleged that the evidence considered by the Probable Cause Panel (Panel) was insufficient to indicate that

the alleged violation occurred. After review of the Petitioner's response, the official minutes of the Panel proceedings, the evidence before the Panel of that proceeding in regard to the Respondent's case and argument of counsel at the hearing, the motion was denied as it related to Counts I and II of the Amended Administrative Complaint. Ruling was reserved on the motion as it related to Counts III, IV and V of the Amended Administrative Complaint until after the hearing, allowing the parties an opportunity to further argue whether those counts that had not been before the Panel should be dismissed.

After careful review of the facts supporting the Amended Administrative Complaint, the evidence considered by the Panel and each counsel's memorandum, the motion as it pertains to Counts III, IV and V of the Amended Administrative Complaint is denied and, therefore, the motion is denied in its entirety. At the hearing, Petitioner presented the testimony of Ernest W. Ellison, Larry Vitt, Herman Cherry and Stanton Alexander. Petitioner's exhibits 1 through 10 were received into evidence.

Respondent's testified in his own behalf and presented the testimony of Patricia Ristorcelli. Respondent's exhibits 1 through 4 were received into evidence.

A transcript was filed with the Division of Administrative Hearings on October 11, 1990. The Respondent by motion requested that the time for filing a Proposed Recommended Order be extended until October 31, 1990. The motion was granted and the parties Proposed Recommended Orders were timely filed. A ruling on each Proposed Finding of Fact has been made as reflected in an Appendix to the Recommended Order.

FINDINGS OF FACT

Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant facts are made:

1. At all times material to this proceeding, Respondent Joseph W. Miklavic was licensed as a certified building contractor in the state of Florida, holding license number CB C006615, qualifying Security Home d/b/a Security Homes of Clearwater (Security). Since March, 1989 the Respondent's license has been on active status qualifying, Individual.

   
   

2. At all times material to this proceeding, Respondent was a salaried employee of Security.

   
   

3. Ronald MacLaren was president of Security and also sole owner and president of Yankee Construction Inc. d/b/a Olympic Homes of Citrus County (Olympic).

   
   

4. In accordance with a management agreement between Security and Olympic, the Respondent was assigned by Ronald MacLaren to oversee the operation of Olympic. Olympic was licensed to engage in construction having been qualified by Wilmon Ray Stevenson through license number RB A035005 which was in effect from June, 1987 until October, 1988 when Stevenson filed a change of status application with the Construction Industry Licensing Board (Board) requesting license number RB A035005 be changed to inactive status qualifying, Individual. While this application was not acted upon until February, 1989, the Board considered license number RB A035005 in effect as qualifying Olympic only until October, 1988.

5. Effective September 26, 1988, the name of Yankee Construction, Inc.

   was changed to Rivercoast Homes, Inc. (Rivercoast) which apparently ceased doing business under the fictitious name of Olympic Homes of Citrus County.

   
   

6. On September 19, 1988 Wilmon Ray Stevenson advised the Citrus County Building Department that he was no longer the "qualifier for Olympic Homes". Around this same time, the Respondent, Ronald MacLaren and the management of Olympic became aware that Stevenson would no longer be the qualifying agent for Olympic.

   
   

7. There was no evidence that Rivercoast Homes, Inc. a/k/a Yankee Construction Inc. ever advised the Board of the name change or the termination of Stevenson as its only qualifying agent affiliation in accordance with Section 489.119(2)(3), Florida Statutes. Nor was there any evidence that Rivercoast was ever qualified by another qualifying agent pursuant to Section 489.119, Florida Statutes.

   
   

8. In accordance with the agreement between Security and Olympic, referred to in Finding of Fact 4, the Respondent continued to oversee the Rivercoast operations until sometime around December 1988 when all of MacLaren's operations in Florida, including Security, closed down.

   
   

9. Under Security's agreement with both Olympic and Rivercoast, Respondent's duties included working with management and subcontractors to develop construction schedules and to advise Ron MacLaren of the financial aspect of the company so that MacLaren could make funds available to pay subcontractors, etc. Respondent did not have any control over the finances of either Olympic or Rivercoast such as receiving, depositing or disbursing funds.

   
   

10. Either in late September or early October of 1988, Respondent approached Larry Vitt, Citrus County Building Department, as to whether the Respondent could pull permits under his license for Olympic or Rivercoast. Vitt advised Respondent that unless he qualified the company he could not pull permits for that company under his license.

    
    

11. Respondent advised MacLaren that Rivercoast would have to have a qualifying contractor in order to engage in contracting. MacLaren did not get Rivercoast qualified to engage in contracting at anytime. Respondent did not qualify Rivercoast under his contractor's license at anytime.

    
    

12. Sometime around the last of September or the first part of October of 1988, Respondent became aware that Rivercoast a/k/a Yankee Construction, Inc. was no longer qualified under Section 489.119, Florida Statutes, and therefore, not authorized under law to engage in contracting.

    
    

13. On August 16, 1988 Ernest and Marjorie Ellison met with Ken Smith and Gloria Stevenson of Olympic to discuss Olympic building the Ellisons a home. The Ellisons picked out a floor plan at this time and gave Olympic a $100.00 deposit to hold the price until a contract could be executed.

    
    

14. On October 1, 1988 the Ellisons met again with Ken Smith and was introduced to the Respondent who gave them a brief run down on the status of the company and advised them that the company was in "good shape". At this meeting, Ken Smith advised the Ellisons of certain things that were required of them before construction began, including a survey.

15. On October 31, 1988 the Ellisons signed a contract with Rivercoast to construct their home. In his capacity as a representative of Security, under the agreement between Security and Rivercoast, the Respondent signed this contract on the line designated Contractor/Representative. There is insufficient evidence to show that Respondent intended to sign the contract as contractor of record as the term contractor is defined in Section 489.105(3), Florida Statutes (Supp. 1988), and thereby impose upon himself the responsibility for the entire project. The contract price was $44,634.00. On November 1, 1977 the Ellisons delivered to Rivercoast a check for $4,363.40 which along with the $100.00 deposit paid in August represented a total down payment of $4,463.40. Respondent did not personally receive any funds from the Ellisons for Rivercoast or receive any funds for himself from the Ellisons under this contract.

    
    

16. No permit was ever pulled or any work performed by Rivercoast under the aforementioned contract. Ernest Ellison met with Respondent on November 21, 1988 and requested that the contract be cancelled. Under the authority granted Respondent through the agreement between Security and Rivercoast, the Respondent and Ernest Ellison signed the contract as being cancelled on November 21, 1988.

    
    

17. Although the Ellisons were offered an opportunity by the Respondent to transfer their deposit of $4,463.40 to Security and enter into a contract with Security to build their house, they declined and contracted with another contractor.

    
    

18. On the date the contract was cancelled, Respondent advised Ernest Ellison that the down payment of $4,463.40 would be reimbursed. Although Respondent attempted to obtain a refund for the Ellisons from MacLaren and was advised by MacLaren that a refund was forthcoming, no refund of the Ellison's down payment was ever made by Rivercoast, Ronald MacLaren, the Respondent or anyone else.

    
    

19. Respondent was aware during the negotiation and at the time the Ellison's contract was executed, that Rivercoast was not authorized by law to engage in contracting. However, there is insufficient evidence to show that Respondent ever advised the Ellisons that he would be the contractor responsible for building their home under the contract with Rivercoast or that he would be the contractor to pull the necessary permits for construction of their home.

    
    

20. There is no evidence that Respondent had any financial interest or owned any stock or held any office in Rivercoast a/k/a Yankee Construction, Inc.

    
    

21. Around October 1, 1988, after Stevenson had withdrawn as qualifying agent for Olympic, Rivercoast was no longer authorized to engage in the practice of contracting since it had not been qualified by another qualifying agent in accordance with Section 489.119, Florida Statutes.

    
    

    CONCLUSIONS OF LAW

    
    

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

23. Section 489.129, Florida Statutes (Supp. 1988) empowers the Florida Construction Industry Licensing Board (Board) to revoke, suspend or otherwise discipline the license of Respondent if he is found guilty of any one of those enumerated acts listed in Section 489.129(1)(a) through (n), Florida Statutes (Supp. 1988).

    
    

24. The Amended Administrative Complaint charges Respondent with violating Section 489.129(1)(e)(f)(h)(k) and (m), Florida Statutes (Supp. 1988), which provides as follows:

    
    

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

    2. Knowingly combining or conspiring with an uncertified or unregistered person by allowing his certificate or registration to be used by the uncertified or unregistered

       person with intent to evade the provisions of this part. When a certificateholder or registrant allows his certificate or registration to be used by one or more business organizations without having any active participation in the operations, management, or control of such business organizations, such act constitutes prima facie evidence of an intent to evade the provisions of this part.

       * * *

       (h) Committing mismanagement or misconduct in the practice of contracting that causes financial harm to a customer. Financial mismanagement or misconduct occurs when:

       * * *

       2. The contractor has abandoned a customer's job and the percentage of completion is less than the percentage of the total contract price paid to the contractor as of the time of abandonment, unless the contractor is entitled to retain such funds under the terms of the contract or refunds the excess funds within 30 days after the date the job is abandoned.

       * * *

       (k) Abandoning a construction project in which the contractor is engaged or under contract as a contractor. A project is to be considered abandoned after 90 days if the contractor terminates the project without notification to the prospective owner and without just cause.

       * * *

       (m) Being found guilty of fraud or deceit or of gross negligence, incompetency, or misconduct in the practice of contracting.

       
       

25. In disciplinary proceedings, the burden is upon the regulatory agency to establish facts upon which its allegations of misconduct are based by clear and convincing evidence. Ferris v. Turlington, 510 So.2d 292 (Fla. 1987). The Petitioner has sustained its burden as to Count III of the Amended Administrative Complaint in that Respondent knew or had reasonable grounds to know that Rivercoast was uncertified or unregistered and yet assisted Rivercoast in engaging in the prohibited uncertified or unregistered practice of contracting as that term is defined in Section 489.105(b), Florida Statutes (1988 Supp.) and, therefore, a violation of Section 489.129(1)(c), Florida Statutes (Supp. 1988).

    
    

26. There is no evidence that Respondent violated Section 489.129(1)(f), Florida Statutes (Supp. 1988), and, therefore, Petitioner has failed to sustain its burden in regard to Count IV of the Amended Administrative Complaint.

    
    

27. There was insufficient evidence to show that Respondent's responsibilities and duties under the agreement between Security and Rivercoast was anything other than acting as a coordinator between the Rivercoast management and its subcontractors and, as consultant to Ronald MacLaren. There was insufficient evidence to show that while working in this capacity, including his execution of the Ellison contract, that the Respondent was acting in the capacity of a contractor as that term is defined in Section 489.105(3), Florida Statutes (Supp. 1988). Therefore, there is insufficient evidence to prove a violation of Section 489.129(1)(h)(k) and (m), Florida Statutes (Supp. 1988). The Petitioner has failed to sustain its burden in regard to Counts 1, II, and V.

RECOMMENDATION

Having considered the foregoing Findings of Fact and Conclusions of Law, the evidence of record, the demeanor of the witnesses and the disciplinary guidelines set out in Chapter 21E- 17, Florida Administrative Code, it is

RECOMMENDED:

That the Board enter a final order finding Respondent guilty of violating Section 489.129(1)(e), Florida Statutes, and for such violation it is recommended that the Board assess the Respondent with an administrative fine of

$1,000.00. It is further recommended that Counts I, II, IV and V be dismissed

DONE and ORDERED this 27th day of November, 1990, in Tallahassee, Florida.

WILLIAM R. CAVE

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 27th day of November, 1990.

APPENDIX CASE NO. 90-2046

The following constitute my specific rulings pursuant to Section 120.59(2), Florida Statutes, on all of the proposed findings of fact submitted by the parties in this case.

Rulings of Proposed Findings of Fact Submitted by the Petitioner

1. Not necessary.

2. Adopted in Finding of Fact 1.

3. Adopted in Finding of Fact 7 but modified.

4. Adopted in Findings of Fact 4, 8, and 10.

5. Adopted in Findings of Fact 9 and 14 but modified.

6. Adopted in Finding of Fact 15.

7. Adopted in Findings of Fact 16 and 17 but modified.

8. Adopted in Findings of Fact 17 and 18.

Rulings of Proposed Findings of Fact Submitted by Respondent

1. - 2. Not material or relevant.

1. Adopted in Findings of Fact 1, 7 and 20.

2. Adopted in Finding of Fact 4.

3. Adopted in Findings of Fact 4 and 8.

4. Not material or relevant.

5. Adopted in Finding of Fact 19.

6. - 10. Adopted in Finding of Fact 15.

1. Restatement of testimony not a Finding of Fact but see Finding of Fact 13.

2. Adopted in Finding of Fact 15.

3. Not material or relevant.

4. Adopted in Finding of Fact 15.

5. - 16. Not material or relevant.

1. Restatement of testimony not a Finding of Fact but see Findings of Fact 13,

   14 and 15.

2. Adopted in Finding of Fact 19 but modified.

3. Not material or relevant.

4. Adopted in Finding of Fact 4.

5. Restatement of testimony not a Finding of Fact but see Finding of Fact 4.

6. Adopted in Finding of Fact 9.

7. Adopted in Finding of Fact 4 but modified to show license effective until October, 1988 rather than February, 1989.

8. Restatement of testimony not a Finding of Fact but see Findings of Fact 1, 7 and 20.

9. - 26. Not material or relevant.

1. Adopted in Finding of Fact 4 but modified to show from June, 1987 until October, 1988.

2. - 29. Adopted in Findings of Fact 5 and 13.

1. Restatement of testimony not a Finding of Fact but see Finding of Fact 4.

2. - 32. Adopted in Findings of Fact 4, 8 and 9 but modified.

1. Not material or relevant.

2. - 36. Adopted in Findings of Fact 4, 8, and 9 but modified.

1. Adopted in Finding of Fact 10.

2. Not material or relevant.

3. - 40. Adopted in Findings of Fact 8, and 17, respectively.

1. Rejected as there is no substantial competent evidence in the record to show any other contract than the one Respondent signed on October 31, 1988.

2. Not material or relevant.

3. Not supported by substantial competent evidence in the record.

4. Not material or relevant.

5. Adopted in Finding of Fact 18.

6. Restatement of testimony not a Finding of Fact but see Finding of Fact 9.

7. - 50. Not necessary to the conclusion reached since this matter was covered in the Preliminary Statement wherein the motion was denied.

COPIES FURNISHED:

G. W. Harrell, Senior Attorney Department of Professional Regulation

1940 N. Monroe Street, Suite 60

Tallahassee, FL 32399-0750

1. Geoffrey Vining, P.A. 2212 South Florida Avenue Suite 300

   Lakeland, FL 33803

   
   

   Daniel O'Brien, Executive Director Construction Industry Licensing Board Post Office Box 2

   Jacksonville, FL 32202

   
   

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

   Tallahassee, FL 32399-0792

   
   

   NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

   
   

   ALL PARTIES HAVE THE RIGHT TO SUBMIT WRITTEN EXCEPTIONS TO THIS RECOMMENDED ORDER. ALL AGENCIES ALLOW EACH PARTY AT LEAST 10 DAYS IN WHICH TO SUBMIT WRITTEN EXCEPTIONS. SOME AGENCIES ALLOW A LARGER PERIOD WITHIN WHICH TO SUBMIT WRITTEN EXCEPTIONS. YOU SHOULD CONTACT THE AGENCY THAT WILL ISSUE THE FINAL ORDER IN THIS CASE CONCERNING AGENCY RULES ON THE DEADLINE FOR FILING EXCEPTIONS TO THIS RECOMMENDED ORDER. ANY EXCEPTIONS TO THIS RECOMMENDED ORDER SHOULD BE FILED WITH THE AGENCY THAT WILL ISSUE THE FINAL ORDER IN THIS CASE.

   
   

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

   AGENCY FINAL ORDER

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

   
   

   STATE OF FLORIDA

   DEPARTMENT OF PROFESSIONAL REGULATION CONSTRUCTION INDUSTRY LICENSING BOARD

   
   

   DEPARTMENT OF PROFESSIONAL REGULATION,

   
   

   Petitioner,

   
   

   -vs- CASE NO.: 109199

   DOAH CASE NO.: 90-2046

   JOSEPH WILLIAM MIKLAVCIC, LICENSE NO.: CB C006615,

   
   

   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 February 14, 1991, in Jacksonville, 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 present and was 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. Respondent's Exceptions to the Hearing Officer's findings are rejected as unsupported by the record.

      
      

   3. There is competent, substantial evidence to support the Hearing Officer'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 Conclusions of Law are hereby approved and adopted except where they contradict Petitioner's Exceptions to Recommended Order which is hereby approved and adopted and incorporated herein by reference.

   
   

3. The Respondent's exceptions to the Hearing Officer's conclusions are rejected as unsupported by the facts found by the Board.

   
   

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

   
   

5. The penalty recommended by the Hearing Officer is hereby enhanced to more accurately reflect the findings and conclusions of the Board.

   
   

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

THEREFORE, IT IS HEREBY ORDERED AND ADJUDGED:

Respondent shall pay a fine to the Board in the amount of one thousand dollars ($1,000.00) and shall pay restitution in the amount of four thousand four hundred sixty three dollars ($4,463.00) to Ernest W. Ellison Citrus County. Both the fine and restitution shall be paid within thirty (30) days of the Board's Final Order herein.

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 17th day of April, 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:

Joseph William Miklavcic C. Geoffrey Vininv, P.A.

P.O. Box 542 2212 South Florida Ave., Suite 300

Pineland, FL 33945 Lakeland, FL 33803

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 17th day of April, 1991.

Docket for Case No: 90-002046

Orders for Case No: 90-002046