STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF PROFESSIONAL )

REGULATION, )

)

Petitioner, )

) CASE NO. 90-3035

vs. )

)

JOHN ARENA, )

)

Respondent. )

)

RECOMMENDED ORDER

The final hearing in this case was held on October 25, 1990, in Ft. Lauderdale, Florida, before Donald D. Conn, Hearing Officer, Division of Administrative Hearings.

APPEARANCES

For Petitioner: Robert Harris, Esquire

1940 North Monroe Street Suite 60

Tallahassee, FL 32399-0792

For Respondent: John Arena, pro se

5961 S.W. 13th Street Plantation, FL 33317

STATEMENT OF THE ISSUE

The issue in this case is whether disciplinary action should be taken against the license of John Arena (Respondent) based upon violations of Sections 489.105(4), 489.119 and 489.129(1)(e) and (m), Florida Statutes, as alleged in the Administrative Complaint filed against Respondent in this case.

PRELIMINARY STATEMENT

At the hearing, the Department of Professional Regulation (Department) introduced six exhibits, including Petitioner's exhibit 6 which is a deposition of Dorothy G. Fields containing eight additional exhibits that were also admitted. The Respondent testified on his own behalf.

The transcript of the final hearing was filed on November 8, 1990, and the parties were allowed ten days thereafter within which to file their proposed recommended orders. A ruling on each timely filed proposed finding of fact included in the parties' proposed recommended orders is included in the Appendix to this Recommended Order.

FINDINGS OF FACT

1. At all times material hereto, Respondent has been licensed as a certified residential contractor in Florida, having been issued license number CR-C021139. The Department is the state agency charged with the responsibility to prosecute Administrative Complaints pursuant to Chapters 120, 455 and 489, Florida Statutes, and rules adopted thereunder.

   
   

2. During March, 1988, the Respondent's license was issued in an active status qualifying Classic Industries, Inc., and this licensure status was effective until September 1989, when the Respondent's license was placed in inactive status.

   
   

3. On or about September 23, 1988, Dorothy G. Fields entered into a contract for residential repairs and construction with Classic Industries, Inc., for her residence located at 4361 Southwest 23rd Street, Ft. Lauderdale, Florida. At the time of this contract, the Respondent was the qualifying agent for Classic Industries, Inc. However, the Respondent never personally spoke with Dorothy Fields, or anyone acting on her behalf, concerning this contract.

   
   

4. Fields' contract with Classic Industries clearly reflects her understanding that the work to be completed included window repair, the installation of an air conditioner, and insulation, for which she was to pay

   $6800. However, Respondent understood that the only work to be performed for Fields was window repair, and accordingly, he pulled a permit on September 27, 1988 only for the repair of her windows, and not for the air conditioner or insulation work. There is no evidence in the record which would support the Respondent's understanding, and it is, therefore, found that Respondent was in error when he failed to pull permits for the additional work which was to be performed on Fields' residence.

   
   

5. Respondent visited the site of this job and determined that the window repairs had been completed according to code specifications. He did not observe any work being done on the air conditioner or the installation of insulation. Nevertheless, this work was, in fact, performed, and Fields made full payment to Classic Industries in the amount of $6800.

   
   

6. The air conditioning work on Dorothy Fields' residence was subcontracted by Classic Industries to Carlos Jimenez, d/b/a, All American Services. At all times material hereto, Carlos Jimenez, d/b/a, All American Services, was not licensed and qualified by the Construction Industry Licensing Board in Florida. No permits were obtained for the air conditioning and insulation work, and a Notice of Violation was issued by the local building inspector on October 11, 1988. Subsequent thereto, permits were obtained on November 15, 1988, after this work had been performed.

   
   

7. On October 4, 1990, a Final Order was filed by the Construction Industry Licensing Board involving the Respondent in Case Number 109713 (DOAH Case Number 90-1416). As a result of violations of Section 489.129(1)(d),(j) and (m), Florida Statutes, which were found in that case, the Respondent was fined $2250, and his license was also suspended for as period of thirty days, subject to this period of suspension being stayed if he paid the administrative fine within thirty days. There is no evidence in the record to indicate whether Respondent did, in fact, pay this fine within thirty days.

   CONCLUSIONS OF LAW

   
   

8. The Division of Administrative Hearings has jurisdiction over the parties, and the subject matter in this cause. Section 120.57(1), Florida Statutes. Since this is a case in which the Department is seeking to discipline the Respondent's license, and could thereby adversely affect his ability to continue to perform residential contracting, the Department has the burden of establishing the basis for license disciplinary action by clear and convincing evidence. Ferris v. Turlington, 510 So.2d 292 (Fla. 1987). In order to meet this clear and convincing standard, "The evidence must be of such weight that it produces in the mind of the trier of fact the firm belief of conviction, without hesitancy, as to the truth of the allegations sought to be established." Evans Packing Co. v. Department of Agriculture and Consumer Services, 550 So.2d 112,

   116 at n.5 (Fla. 1st DCA 1989), citing Slomowitz v. Walker, 429 So.2d 797, 800 (Fla. 4th DCA 1983).

   
   

9. The Department has charged Respondent with violating Sections 489.105(4), 489.119 and 489.129(1)(e) and (m), Florida Statutes, which provide in pertinent part, as follows:

   
   

   Section 489.105 Definitions.--As used in this part:

   
   

   (4) "Primary qualifying agent" means a person who . . . has the responsibility, to supervise, direct, manage, and control the contracting activities of the business organization with which he is connected; who has the responsibility to supervise, direct, manage, and control construction activities on a job for which he

   has obtained the building permit; . . . .

   
   

   Section 489.119 Business organizations; qualifying agents.

   
   

   (2) If the applicant proposes to engage in contracting as a partnership, corporation, business trust, or other legal entity, the applicant shall apply through a qualfying agent;

   . . . Such application shall also show that the qualifying agent is legally qualified to act for the business organization in all matters connected with its contracting business and that he has authority to supervise construction undertaken

   by such business organization. . . .

   
   

   Section 489.129 Disciplinary proceedings.--

   
   

   (1) The board may (discipline the license of) a contractor if the contractor, or if the business organization for which the contractor is a primary qualifying agent or is a secondary qualifying agent responsible under s.489.1195, is found guilty of any of the following acts:

   
   

   (e) 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.

   
   

   (m) Being found guilty of fraud or deceit or

   of gross negligence, incompetency, or misconduct in the practice of contracting.

   
   

10. The Department has proven by clear and convincing evidence that Respondent violated Section 489.129(1)(e) by being responsible, as qualifying agent, for Classic Industries' subcontracting with Carols Jimenez, an unlicensed person, who installed the air conditioning system in Field's residence. In this manner, Respondent was responsible for aiding and abetting an uncertified or unregistered person in the performance of contracting.

    
    

11. It was also clearly shown that Respondent failed to supervise the work or activities of Classic Industries, including the job site of the work on the Fields' residence. He did not even know that Classic Industries had contracted with Fields to install an air conditioning system and insulation. When he visited the job site, he did not observe any of this work in progress, or speak with the home owner. As a result of his lack of supervision, permits were not pulled for this additional work. In this manner, Respondent violated Sections

    489.119 and 489.105(4), Florida Statutes.

    
    

12. Finally, the Respondent's actions in this case constitute negligence and misconduct in the practice of contracting in violation of Section 489.129(1)(m), since he failed to properly supervise the actions and work of the business entity for which he was the qualifying agent, and in so doing, he aided and abetted an uncertified and unregistered person to evade the provisions of Chapter 489, Florida Statutes.

    
    

13. In recommending the appropriate penalty for the violation of Chapter 489, Florida Statutes, the nature of Respondent's violation must be considered, along with the disciplinary guidelines established by the Construction Industry Licensing Board in Rules 21E-17.001 through 21E-17.003, and Rule 21E-17.007, Florida Administrative Code.

RECOMMENDATION

Based upon the foregoing, it is recommended that the Construction Industry Licensing Board enter a Final Order placing Respondent's license on probation for a period of two years, and imposing an administrative fine in the amount of

$2,000.

DONE AND ENTERED this 21st day of November, 1990 in Tallahassee, Florida.

DONALD D. CONN

Hearing Officer

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-1550

Filed with the Clerk of the Division of Administrative Hearings

this 21st day of November, 1990.

APPENDIX

Rulings on the Department's Proposed Findings of Fact: 1-2. Adopted in Finding of Fact 1.

1. Adopted in Finding of Fact 2.

2. Adopted in Finding of Fact 6.

3. Adopted, substantially, in Findings of Fact 3 and 4.

4. Adopted in Finding of Fact 6.

5. Adopted in Finding of Fact 7.

Copies furnished:

Robert Harris, Esquire 1940 North Monroe Street Suite 60

Tallahassee, FL 32399-0792

John Arena

5961 S.W. 13th Street Plantation, FL 33317

Kenneth E. Easley, Esquire General Counsel

1940 North Monroe Street Suite 60

Tallahassee, FL 32399-0792

Daniel O'Brien Executive Director

Construction Industry Licensing Board

P. O. Box 2 Jacksonville, FL 32202

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.

Docket for Case No: 90-003035

Orders for Case No: 90-003035