STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF PROFESSIONAL REGULATION, )

)

Petitioner, )

)

vs. ) CASE NO. 92-0193

)

LAWRENCE I. PAUL, III, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated hearing officer, William F. Quattlebaum, held a formal hearing in the above-styled case on August 12, 1992, in Fort Myers, Florida.

APPEARANCES

For Petitioner: Robert G. Harris, Esq.

Senior Attorney

Dept. of Professional Regulation 2295 Victoria Avenue #263

Fort Myers, Florida 33901

For Respondent: Timothy J. Murty, Esq.

1633 Periwinkle Way, Suite A Sanibel, Florida 33957

STATEMENT OF THE ISSUE

Whether the Petitioner violated Section 489.129(1)(a), Florida Statutes, by obtaining licensure by fraud or misrepresentation.

PRELIMINARY STATEMENT

On December 12, 1991, the Department of Professional Regulation filed an amended administrative complaint alleging that Lawrence I. Paul, III, had misrepresented his credentials in his application for examination for certification as a general contractor. Mr. Paul disputed the allegations and requested a formal administrative hearing. The matter was forwarded to the Division of Administrative Proceedings which noticed and conducted the proceeding.

At hearing, the Petitioner presented the testimony of Kenneth Downey and Robert Fowler, and had exhibits numbered 1-7 admitted. The Respondent presented the testimony of Debra Paul, Craig Ballaron and Lawrence I. Paul, Jr., and testified on his own behalf. The Respondent had exhibits numbered 1-3 admitted.

A transcript of the proceeding was filed. Both parties filed proposed recommended orders. The proposed findings of fact are ruled upon in the Appendix which is attached and hereby made a part of this Recommended Order.

FINDINGS OF FACT

1. The Petitioner is the state agency responsible for licensure of certified general contractors.

   
   

2. The Respondent Lawrence I. Paul, III, ("Respondent") is a licensed general contractor, holding State of Florida licenses GC C046485 and CG CA46485.

   
   

3. On or about December 12, 1988, the Respondent submitted his application to the Department of Professional Regulation seeking leave to take the examination for certification as a general contractor. The Respondent subsequently took and passed the certified general contractors examination.

   
   

4. In his application, the Respondent states that he is qualified to take the examination by virtue of having four years of proven experience as a workman or foreman of which at least one year was as a foreman.

   
   

5. On the experience verification form submitted to the DPR as part of his application the Respondent states that from January, 1977 to January, 1980, he had been employed as a construction workman and that from January 1980 to January 1981 he had been employed as a construction foreman.

   
   

6. The application includes an experience verification form executed by the Respondent and Paula Wisnik, a New York licensed architect. The form indicates that the Respondent had experience in steel erection form work, masonry walls, concrete slabs, footings, site work, excavation, rebar, trusses, and floor and ceiling joists, in single family residences, strip stores and high rise condominiums ten stories and higher.

   
   

7. The experience verification form executed by Ms. Wisnik and the Respondent states as follows:

   
   

   I have read the CANDIDATE INFORMATION BOOKLET

   and reviewed the experience requirements and understand that any false information provided on this form may subject the person(s) signing below to disciplinary action and possible loss of license. I understand that DIRECT KNOWLEDGE does NOT mean that I am relying on a statement from the applicant that he has met the requirements.

   
   

8. Ms. Wisnik has no direct knowledge of the Applicant's experience or of the applicant personally. Her knowledge was based upon information provided to her by Peter Wendt, another licensed architect.

   
   

9. The Respondent originally sought to have Mr. Wendt complete the experience verification form. Mr. Wendt forwarded the form to Ms. Wisnik and she subsequently signed the document.

   
   

10. Mr. Wendt has no direct personal knowledge of the Respondent's experience as set forth on the experience verification form. Mr. Wendt did not

    meet the Respondent until the Respondent's move to Florida, which occurred subsequent to the period of employment identified in the application.

    
    

11. The greater weight of the evidence establishes that at the time the application was completed, the Respondent did not have the claimed four years of proven experience as construction worker or foreman.

    
    

12. The Respondent's application states that first he became employed in the construction trade in January, 1977. In fact, he became employed full time in late December, 1978, with Paul Brothers, Inc., a family owned fire restoration business in Philadelphia. He worked primarily as a salesman and estimator with Paul Brothers until June, 1982, a period of approximately three and one-half years. Although there were periods when the Respondent worked on- site, it was not his primary responsibility throughout the employment period.

    
    

    CONCLUSIONS OF LAW

    
    

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

    
    

14. The Florida Construction Industry Licensing Board is authorized to take disciplinary action against a contractor found guilty of obtaining a certificate or registration by fraud or misrepresentation. Section 489.129(1)(a), Florida Statutes. The burden of proof is on the Petitioner to establish the truthfulness of the allegations of the Administrative Complaint by clear and convincing evidence. Ferris v. Turlington, 510 So.2d 292 (Fla. 1987). In this case, the burden has been met.

    
    

15. The evidence establishes that the Respondent misrepresented his experience and employment in his application for examination as a certified general contractor. The application overstates both the period and breadth of his construction experience. Neither Ms. Wisnik, who signed the experience verification form, nor Mr. Wendt, who the Respondent intended to have sign the form, have any direct knowledge of the experience identified on the form. By submitting an application containing false information, the Respondent violated Section 489.129(1)(a), Florida Statutes.

    
    

16. Guidelines for the imposition of disciplinary action are as stated in Chapter 21E-17, Florida Administrative Code. The penalty for a first violation of Section 489.129(1)(a), Florida Statutes, is revocation of the license. There are no aggravating or mitigating circumstances.

RECOMMENDATION

Based on the foregoing, it is hereby

RECOMMENDED that the Department of Professional Regulation, Construction Industry Licensing Board, enter a Final Order revoking the licensure of Lawrence

I. Paul, III, as a certified general contractor, license numbers GC C046485 and CG CA46485.

DONE and RECOMMENDED this 19th day of October, 1992, in Tallahassee, Florida.

WILLIAM F. QUATTLEBAUM

Hearing Officer

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, FL 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 19th day of October, 1992.

APPENDIX TO CASE NO. 92-0193

The following constitute rulings on proposed findings of facts submitted by the parties.

Petitioner

The Petitioner's proposed findings of fact are accepted as modified and incorporated in the Recommended Order except as follows:

1. The proposed finding is modified to reflect that the Respondent did not hold the licenses prior to examination.

Respondent

The Respondent's proposed findings of fact are accepted as modified and incorporated in the Recommended Order except as follows:

5. Rejected, illogical and unsupported by evidence.

6-7. Rejected, not supported by credible and persuasive evidence.

COPIES FURNISHED:

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

Jacksonville, FL 32202

Jack McRay, General Counsel Department of Professional Regulation 1940 North Monroe Street

Tallahassee, FL 32399-0792

Robert G. Harris, Esq. Senior Attorney

Dept. of Professional Regulation 2295 Victoria Avenue #263

Fort Myers, Florida 33901

Timothy J. Murty, Esq.

1633 Periwinkle Way, Suite A Sanibel, Florida 33957

Wellington H. Meffert, II Chief Construction Attorney

Department of Professional Regulation 1940 North Monroe Street

Tallahassee, FL 32399-0750

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 ten 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: 92-000193

Orders for Case No: 92-000193