STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF PROFESSIONAL ) REGULATION, CONSTRUCTION ) INDUSTRY LICENSING BOARD, )

)

Petitioner, )

)

vs. ) CASE NO. 90-4233

)

RAYMOND HURLEY, )

)

Respondent. )

)

RECOMMENDED ORDER

This matter was heard by William R. Dorsey, Jr., the Hearing Officer designated by the Division of Administrative Hearings, on December 12, 1990, in Fort Pierce, Florida.

and

APPEARANCES

For Petitioner: Robert B. Jurand, Esquire

Department of Professional Regulation

Northwood Centre

1940 North Monroe Street Suite 60

Tallahassee, Florida 32399-0792

For Respondent: Glenn N. Blake, Esquire

BLAKE & TORRES

Strange Building

500 South US 1

Fort Pierce, Florida 34950

Robert E. Stone, Esquire SULLIVAN, STONE, SULLIVAN

LaJOIE and THACKER

100 Avenue "A", Suite 1F Fort Pierce, Florida 34950

STATEMENT OF THE ISSUES

The issue is whether the Respondent is subject to discipline for permitting

his general contractor's license to be used by another person to construct a swimming pool, thereby conspiring with an unlicensed person to avoid statutory licensure requirements, and by failing to oversee the quality of the work performed by that person under Respondent's license.

PRELIMINARY STATEMENT

At the formal hearing, the Department offered exhibits 1-6 in evidence, all of which were received, and the testimony of Lucille Clopper, Kenneth R. Clopper, and Julius Morris. The Respondent offered one exhibit which was received in evidence, and testified on his own behalf. A transcript of the hearing was filed on January 8, 1991, and the parties filed proposed findings of fact and conclusions of law by January 28, 1991. Rulings on proposed findings of fact are made in the appendix to this recommended order.

FINDINGS OF FACT

1. The Petitioner is the state agency responsible to prosecute administrative complaints under Chapters 455 and 489, Florida Statutes, and the rules implementing those statutes.

   
   

2. At all times material to the complaint, Raymond Hurley was licensed as a certified general contractor, holding Florida license CGC 000773 and served as the qualifying agent for Capital Resources and Development, Inc.

   
   

3. Kenneth R. and Lucille M. Clopper, of Fort Pierce, Florida, entered into a contract with Fred Humberstone, doing business as Southern Fiberglass Pools of the Treasure Coast, Inc., on September 21, 1987, for the construction of a pool and screened enclosure at the Clopper's home. The contract price was

   $15,500.

   
   

4. Mr. Humberstone has never been a qualified contractor in St. Lucie County, Florida.

   
   

5. Mr. Hurley became authorized to do business as a contractor in St. Lucie County, Florida, on September 29, 1987, when he provided a copy of his state certified general contractor's license, a certificate of insurance for worker's compensation and general liability property damage insurance to St. Lucie County.

   
   

6. St. Lucie County Permit No. 44574 was issued to Capital Resources and Development, Inc., on October 9, 1987. The permit application had been dated September 24, 1987. The application bore Mr. Hurley's contractor license number. In the space for the name of the company, the application had originally been written in the name of Southern Fiberglass Pools of the Treasure Coast, of Stuart, Florida. The name of the applicant had been scratched through, and the name of Capital Resources and Development, Inc., was written over it. The application bears a handwritten signature which reads Raymond S. Hurley, but it is not his signature. Mr. Hurley did not sign the application, or authorize anyone to sign it for him.

   
   

7. Mr. Hurley knew Mr. Humberstone, the owner of Southern Fiberglass Pools of the Treasure Coast. Humberstone had difficulty with his corporation because his qualifying contractor had left, and Humberstone owned approximately $150,000 worth of equipment which he could not use without a qualifying contractor. Humberstone made a proposal to Hurley to become the qualifying contractor for Southern Fiberglass Pools of the Treasure Coast. It was about this time that Mr. Hurley first qualified to engage in the business of contracting in St. Lucie County.

8. Mr. Humberstone must have pulled the permit for the Clopper jor, using Mr. Hurley's licensure in St. Lucie County. This is likely because at first, the line for the permit applicant had been filled in with the name of Humberstone's business, Southern Fiberglass Pools by the Treasure Coast.

   
   

9. Mr. Hurley had become licensed in St. Lucie County because he was contemplating going into business with Mr. Humberstone. What cannot be determined from the evidence in the record is whether Mr. Hurley had agreed with Mr. Humberstone to make his licensure available to Mr. Humberstone so Humberstone could continue in the pool contracting business in St. Lucie County. Mr. Hurley did not sign the application for the permit at the Clopper's home.

   He never went to the Clopper's home to see the work or to meet the Cloppers.

   Had he gone into partnership with Humberstone he would likely have participated, to some extent, in the work. On this matter, the Department's proof is insufficient.

   
   

10. After the construction at the Clopper home began, there were a number of delays in completion of the pool, and the contractor failed to install stress relief for the pool deck which resulted in cracking of the pool deck. The pool itself had three leaks.

    
    

11. The problems with the pool remained unresolved and the Clopper's finally settled with Mr. Humberstone for payment for $1,020 in exchange for providing Mr. Humberstone with the release of liability. Ultimately, the Cloppers spend $1,659 to repair the problems created by Mr. Humberstone's inadequate work.

    
    

12. Mr. Hurley was never at the job site, and the Cloppers never knew anything about him until after their pool had been completed; all of their dealings had been with Humberstone.

    
    

    CONCLUSIONS OF LAW

    
    

13. The Division of Administrative Hearings has jurisdiction over this matter. Section 120.57(1), Florida Statutes.

    
    

14. Here, the proof is insufficient to demonstrate by clear and convincing evidence that Mr. Hurley violated Section 489.129(1)(e), Florida Statutes, by aiding an uncertified contractor, Fred Humberstone, in obtaining permits in St. Lucie County. Simply stated, the proof is not compelling that he authorized Mr. Humberstone to obtain the permit for the Clopper pool, or that Hurley obtained the permit himself on behalf of Humberstone and Southern Fiberglass Pools of the Treasure Coast, Inc.

    
    

15. Similarly, there is insufficient evidence that Mr. Hurley violated Section 489.129(1)(f), Florida Statutes, by combining with an unlicensed person by allowing Hurley's certification to be used by the unlicensed person in order to evade the provisions of Chapter 489, Florida Statutes, and insufficient proof that Mr. Hurley was responsible for the work to be done by Mr. Humberstone under his contract with the Cloppers, and there is therefore insufficient evidence to find that Mr. Hurley is guilty is negligence, incompetence or misconduct with respect with the construction at the Clopper home, which would violate Section 489.129(1)(m), Florida Statutes.

RECOMMENDATION

It is recommended that the administrative complaint filed by the Construction Industry Licensing Board against Raymond Hurley be dismissed.

DONE AND ENTERED in Tallahassee, Leon County, Florida, this 31st day of January 1991.

WILLIAM R. DORSEY, JR.

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 31st day of January 1991.

APPENDIX TO RECOMMENDED ORDER DOAH CASE NO. 90-4233

Rulings on findings proposed by the Petitioner: 1-7. Accepted.

8. Rejected, as there is insufficient evidence to find that

Mr. Hurley, although he knew Mr. Humberstone, had entered into any agreement Humberstone to become a qualifying contractor for Humberstone's corporation. While that is one inference which could be drawn from the evidence, the evidence is not strong enough to permit such finding, at the level of certainty required for clear and convincing evidence, to be made.

Rulings on findings proposed by the Respondent: 1-6. Adopted

7. Rejected. There is insufficient evidence in the record to make specific finding with respect to handwriting exemplars, but the testimony of Mr. Hurley that he did not sign the St. Lucie County permit application has been accepted.

Copies furnished:

Robert B. Jurand, Esquire Department of Professional

Regulation Northwood Centre

1940 North Monroe Street Suite 60

Tallahassee, Florida 32399-0792

Glenn N. Blake, Esquire BLAKE & TORRES

Strange Building

500 South US 1

Fort Pierce, Florida 34950

Robert E. Stone, Esquire SULLIVAN, STONE, SULLIVAN

LaJOIE and THACKER

100 Avenue "A", Suite 1F Fort Pierce, Florida 34950

Daniel O'Brien, Executive Director Department of Professional

Regulation

Construction Licensing Board Post Office Box 2 Jacksonville, Florida 32202

Kenneth E. Easley, General Counsel Department of Professional

Regulation

1940 North Monroe Street Tallahassee, Florida 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.

Docket for Case No: 90-004233

Orders for Case No: 90-004233