STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

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

)

Petitioner, )

)

vs. ) CASE NO. 90-5657

)

SAMUEL E. WHITENER, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, Veronica E. Donnelly, held a formal hearing in the above styled case on December 14, 1990, in Tampa, Florida.

APPEARANCES

For Petitioner: Robert B. Jurand, Esquire

Department of Professional Regulation Northwood Centre, Suite 60

1940 North Monroe Street Tallahassee, Florida 32399-0792

For Respondent: Brian A. Burden, Esquire

Post Office Box 2893 Tampa, Florida 33601

STATEMENT OF THE ISSUES

Whether the Respondent committed the following acts on Ellenton Shoney's construction project:

1. Aiding and abetting a person engaged in the unregistered and uncertified practice of contracting.

   
   

2. Obtaining a permit for construction in which he took no part.

   
   

3. Using his license to illegally associate with an unlicensed contractor.

PRELIMINARY STATEMENT

By an Amended Administrative Complaint filed August 16, 1990, the Department of Professional Regulation seeks to have disciplinary sanctions imposed on the contracting license of Respondent, Samuel E. Whitener (Whitener). Essentially, the Respondent is charged with the misuse of his contractor's

license. He allegedly allowed an unlicensed contractor to use his license to obtain a building permit and complete construction without Respondent's active participation in the project.

Prior to the entry of the Amended Administrative Complaint, Respondent demanded a formal administrative hearing to dispute the facts regarding his alleged misconduct. The case was transferred to the Division of Administrative Hearings on September 7, 1990, and a formal hearing was scheduled.

During the hearing, the Department filed sixteen exhibits, which were stipulated into evidence, and presented five witnesses. The Respondent called one witness and testified in his own behalf. One rebuttal witness was recalled by the Department, and the evidentiary portion of the proceedings closed on December 14, 1990.

A transcript of the hearing was filed with the Division of Administrative Hearings on January 31, 1991. Proposed recommended orders were filed by February 26, 1991. Rulings on the proposed findings of fact are in the Appendix of this Recommended Order.

FINDINGS OF FACT

1. At all times material to these proceedings, Respondent, Samuel E. Whitener, was licensed as a certified general contractor in Florida, and held license number CG C024909. His qualifying status is that of an individual, and the business address is 13502 Greenleaf Drive, Tampa, Florida 33612.

   
   

2. On December 9, 1987, the Respondent contracted with Restaurant Management Services, Inc., a Georgia corporation, to manage a construction project known as Shoney's in Ellenton, Florida. Respondent was awarded the contract once it was determined that he had submitted the lowest bid for the job. This contract was the written restatement of an oral agreement entered into by the parties on December 4, 1987.

   
   

3. Pursuant to the contract terms, Respondent was to substantially complete the partially completed project within four weeks from the restart of the job. His management fee of $4,000.00 was to be paid upon completion of his contract.

   
   

4. The reason the job had to be restarted was that Stop Work Order number 1055 had been issued by the Manatee County Building Official on December 3, 1987 because a properly qualified Florida licensed contractor was not on the permit documents previously submitted to the county.

   
   

5. At the time the stop work order was issued, the project was seventy- five percent complete. All of the subcontractors were in place, and the project manager retained by the owner was still with the project.

   
   

6. The Shoney's restaurant being built at this location was based upon a design and plans created by the architect Steven Cooper. This was a "cookie cutter" project in that the project manager and a majority of the subcontractors had built Shoney's restaurants from the same plans at various locations throughout Florida and the Southeast. The project manager and the subcontractors went from location to location, and built the restaurants wherever the owner, Restaurant Management Services, Inc., scheduled such construction.

7. In keeping with the corporate plan to locate these restaurants in certain locales by certain target dates, the subcontractors and the project manager were paid by the corporation instead of the contractor.

   
   

8. When Respondent entered into the contract with Restaurant Management Services, Inc., he was aware that the funds for supplies and services on the project were to be managed by the owner. Respondent likened the contract to those traditionally made with school boards and hospitals. In Florida, these particular entities hire a contractor, but they like to maintain control of the funds themselves.

   
   

9. However, as part of the cost management of the project, the contract specifically required that Respondent, Samuel E. Whitener, approve all related costs prior to payment by the owner. He also had authority to determine the value of the subcontractor's work on the site.

   
   

10. It was agreed that Respondent would visit the jobsite twice weekly, and he would be on call during normal working hours. He would meet with building officials when needed. Values of work or code interpretation would be his sole responsibility, and the job superintendent had to be qualified and approved by Respondent Whitener. If he were unable to work with the job superintendent provided, a replacement would be made by Respondent.

    
    

11. During the time period between December 4, 1987 and the completion of the project, the Respondent took responsibility for the work performed at the site and fulfilled his obligations of contract. As agreed, he was paid upon completion of the job.

    
    

12. The Respondent was not paid $4,000 by Fred Pringle to obtain the permit. He was paid $4,000 to manage the remaining twenty-five percent of the project, which he did.

    
    

13. After his personal interview of the project manager, and upon review of his work during the project, the Respondent decided to allow the same project manager to continue with his work on this project.

    
    

14. No conflicts occurred on the job involving Respondent's authority or the quality of construction undertaken by the subcontractors or the project manager.

    
    

15. Testimony from one subcontractor at hearing revealed that Respondent exercised his authority as the general contractor to reject some clay materials brought to the site that he determined were unacceptable for its intended use.

    
    

    CONCLUSIONS OF LAW

    
    

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

    
    

17. In the Amended Administrative Complaint filed in these proceedings, Respondent is charged with having violated Sections 489.129(1)(e), (f) and (m), Florida Statutes, which provides as follows, in pertinent part:

    
    

    1. The board may revoke, suspend or deny the issuance or renewal of the certificate or registration of a contractor and impose an administrative fine not to exceed $5,000, place

       a contractor on probation, or reprimand or censure a contractor if the contractor ... is found guilty of any of the following acts:

       1. Aiding or abetting any uncertified or unregistered person to evade any provision of this act.

       2. Knowingly combining or conspiring with an uncertified or unregistered person by allowing one's certificate or registration to be used by any uncertified or unregistered person with intent to evade the provisions of this act. When a

       certificateholder or registrant allows his certificate or registration to be used by one or more companies without having any active participation in the operations, management or control of such companies, such act constitutes prima facie evidence of an

       intent to evade the provisions of this act.

       (m) Upon proof that the licensee is guilty of fraud or deceit or of gross negligence, incompetency, or misconduct in the practice of contracting.

       
       

18. Count I of the Amended Administrative Complaint alleges the Respondent violated Section 489.129(1)(e), Florida Statutes, by obtaining a building permit for an unlicensed contractor. The facts adduced at hearing demonstrate that Respondent managed the project from the time it was seventy-five percent complete until completion.

    
    

19. Although Respondent undertook responsibility for the quality and value of work completed by subcontractors and approved all related costs paid by the owner once he was hired, he did not manage or control the funds owed by the owner to the subcontractors, materialmen, or other potential lienors. As part of the contract, the owner reserved this responsibility to itself. Based upon the anticipated length of the general contractor's agreement with the owner, the type of project, the ongoing relationship between the owner and the subcontractors as well as the amount of construction already completed, it was not unreasonable to structure the contract the way the Respondent and the owner did in this case.

    
    

20. Once Respondent established that there was a legitimate basis for the way the relationship with the owner was structured in the contractual relationship, any presumptions that Respondent's license was used by the owner for improper purposes were refuted. As there was no other reliable evidence presented to support the Department's theory that Respondent was involved in wrongdoing, the Department was unable to show that aiding or abetting an uncertified person took place to evade the provisions of Chapter 489, Florida Statutes. Accordingly, the Respondent is not guilty of having violated Section 489.129(1)(e), Florida Statutes, as alleged in Count I.

    
    

21. Because the facts affirmatively proved that Respondent did participate in the management or control of the project, he is not guilty of a violation of Section 489.129(1)(f), Florida Statutes, as alleged in Count II.

    
    

22. No fraud, deceit, gross negligence, incompetency or misconduct in the practice of contracting was proven against Respondent. To the contrary, he practiced the good management skills necessary to complete the project in a timely manner.

23. To assume that because he worked for an owner who had actively deceived building officials in Manatee County until caught, Respondent must also have been engaged in fraud, deceit and misconduct is unreasonable and without merit. There was no showing that Respondent committed any acts which could be construed as a perpetration of the prior fraud.

    
    

24. Instead, the evidence demonstrates that once the owner was caught in its deception, an honest approach to the project was necessary to assure that completion deadlines would be met. Failure to timely complete the Ellenton Shoney's project would have disrupted the owner's anticipated use of the same subcontractors for the Shoney's restaurant completion down the coast in Punta Gorda. Accordingly, Respondent is not guilty of having violated Section 489.129(1)(m), Florida Statutes, as alleged in Count III.

RECOMMENDATION

Based upon the foregoing, it is RECOMMENDED:

That Respondent be found not guilty of having violated Sections 489.129(1)(e), (f) and (m), as alleged in Counts I, II and II of the Amended Administrative Complaint filed August 14, 1990, and modified without objection on December 14, 1990.

DONE and ENTERED this 28th day of February, 1991, in Tallahassee, Leon County, Florida.

VERONICA E. DONNELLY

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 28th day of February, 1991.

APPENDIX TO RECOMMENDED ORDER IN CASE NO. 90-5657

Petitioner's proposed findings of fact are addressed as follows:

1. Accepted.

2. Accepted. See HO number 1.

3. Accepted.

4. Accepted. See HO number 4.

5. Reject the first sentence. Contrary to fact. See HO number 2. Accept the rest of the paragraph.

6. Reject the first sentence. Contrary to fact. See HO number 3, number 11 and number 12. Accept second

   sentence. See HO number 8. Reject the rest. Contrary to fact. See HO number 5 - number 15.

7. Accept the first sentence. Reject the second

sentence. Contrary to fact. See HO number 10, number 11, number 13 - number 15. Reject the third sentence.

Contrary to fact. See HO number 7. Reject the fourth sentence. Contrary to fact. See HO number 10. Accept the last sentence.

Respondent's proposed findings of fact are addressed as follows:

1. Accepted.

2. Accepted. See HO number 1.

3. Accepted. See HO number 2, number 5, number 8, number 9, number 10.

4. Accepted. See HO number 11 - number 15.

5. Rejected. Irrelevant.

6. Accepted. See HO number 11 and number 12.

7. Accepted.

8. Accept that Respondent was unaware of an entity

known as Quality Construction. See HO number 8. The rest of the paragraph is rejected as irrelevant.

COPIES FURNISHED:

Robert B. Jurand, Esquire

Department of Professional Regulation Northwood Centre, Suite 60

1940 North Monroe Street Tallahassee, Florida 32399-0792

Brian A. Burden, Esquire Post Office Box 2893 Tampa, Florida 33601

Daniel O'Brien, Executive Director Construction Industry Licensing Board

111 East Coastline Drive, Room 504 Jacksonville, Florida 32202

Jack McCray, Esquire General Counsel

Department of Professional Regulation Northwood Centre, Suite 60

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: 90-005657

Orders for Case No: 90-005657