STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF BUSINESS AND ) PROFESSIONAL REGULATION, DIVISION ) OF CONSTRUCTION INDUSTRY LICENSING, )

)

Petitioner, )

)

vs. ) CASE NO. 95-5908

)

ED J. ADAMS, )

)

Respondent. )

)

RECOMMENDED ORDER

A formal hearing was conducted in this proceeding before Daniel Manry, a duly designated Hearing Officer of the Division of Administrative Hearings, on February 6, 1996, in Orlando, Florida. The hearing was conducted by telephone conference call.

The parties, their witnesses, and the court reporter attended the hearing in Orlando. The undersigned participated from Tallahassee.

APPEARANCES

For Petitioner: Elizabeth Masters

Senior Construction Attorney Department of Business and

Professional Regulation

7960 Arlington Expressway, Suite 230

Jacksonville, Florida 32211

For Respondent: Ed J. Adams, pro se

20 Capehart Drive Orlando, Florida 32807

STATEMENT OF THE ISSUE

The issues for determination are whether Respondent committed the acts alleged in the Administrative Complaint and, if so, what, if any, penalty should be imposed.

PRELIMINARY STATEMENT

Petitioner filed an Administrative Complaint against Respondent on March 29, 1995. Respondent timely requested a formal hearing.

At the formal hearing, Petitioner presented the testimony of six witnesses and submitted 13 exhibits for admission in evidence. Respondent did not testify, presented no witnesses, and submitted no exhibits for admission in evidence.

The identity of the witnesses and exhibits, and the rulings regarding each, are set forth in the transcript of the formal hearing filed on February 22, 1996. Petitioner timely filed its proposed recommended order ("PRO") on March 4, 1996. Respondent did not file a PRO. Proposed findings of fact in Petitioner's PRO are accepted in this Recommended Order.

FINDINGS OF FACT

1. Petitioner is the governmental agency responsible for issuing licenses to practice as building contractors. Petitioner is also responsible for regulating such licensees on behalf of the state.

   
   

2. At all times pertinent to this proceeding, Respondent has been licensed individually as a Certified General Contractor pursuant to license number CG C 0055328 issued by the Construction Industry Licensing Board (the "Board"). Respondent has never been licensed by the Board as the qualifying agent for Mr. Gary Butler ("Butler"), an unlicensed contractor.

   
   

3. In 1993, Respondent entered into an agreement with Butler who has never been licensed by the Board. The terms of the agreement require Respondent to pull permits for construction projects entered into by Butler. Butler pays Respondent for each permit or weekly. Respondent supervises some, but not all, of the projects undertaken by Butler.

   
   

4. In August, 1993, Mr. Lynn Kyler ("Kyler"), the owner of a residence constructed by Ms. Denise Pyke ("Pyke"), a Certified Residential Contractor, asked Pyke to find a contractor to build a new dock and boat house at Kyler's residence. The Kyler residence is a lake front home located at 10250 State Road

   561 A, Clermont, Lake County, Florida.

   
   

5. Kyler authorized Pyke to act as Kyler's agent for construction of the dock and boat house. Kyler resided in Indiana from August through late fall of 1993.

   
   

6. Pyke obtained recommendations of various candidates including Butler. Butler represented himself as a licensed and insured builder of docks and boat houses. Butler provided Pyke with a business card representing that Butler is licensed and insured.

   
   

7. Pyke obtained cost and design proposals from Butler and Norquist Construction Company and communicated the proposals to Kyler. Kyler chose Butler.

   
   

8. Butler agreed to demolish the existing dock and construct a new dock and boat house (the "project"). Kyler paid Butler the full contract price of

   $6,897.60.

   
   

9. Prior to the completion of the project, neither Respondent nor Butler disclosed to Pyke or Kyler that Butler was unlicensed. Nor did they disclose that Butler would use Respondent's license to pull the permit for the project.

   
   

10. Respondent knew that Butler is not licensed as a contractor, in any capacity. On August 25, 1993, Respondent and Butler went to the Lake County Building Department. Respondent used his license to pull Permit Number T93- 04793 for the project.

11. The permit was issued to Respondent, listed Respondent's license as the certified general contractor, and was maintained in the official records of the Lake County Building Department. Respondent listed himself on the permit as the contractor for the entire project without limitation and without reference to Butler.

    
    

12. Respondent was not authorized by Pyke or Kyler to pull the permit or to participate in the project. At the time, neither Pyke nor Kyler were aware of Respondent's existence or his role in the project.

    
    

13. Respondent did not participate and had no involvement in the project except pulling the permit. The project was commenced by Butler in August, 1993, and completed shortly thereafter. Respondent did not supervise or participate in the construction of the project.

    
    

14. Butler began the project without first filing a Notice of Commencement. Butler constructed the project with only a 10 foot setback in violation of the 25 foot setback required in Lake County Code Ordinance 10.0401(3)(d). Butler also failed to obtain an electrical permit in violation of Standard Building Code, Section 103.1.1. (1991).

    
    

15. The project, as built by Butler, has no value to Kyler. The project failed final inspection for violation of the 25 foot setback and failure to obtain an electrical permit. The roof tiles on the boat house had to be removed because they were falling off the roof. The project itself is coming apart. It will cost between $10,000 and $12,000 to bring the project into compliance with local code requirements and to make it usable.

    
    

16. Respondent was aware of the 25 foot setback when he pulled the permit for the project. The project plans submitted for the permit reflect the 25 foot setback.

    
    

17. Lake County allows contractors to withdraw permits that have already been pulled. Respondent never withdrew the permit for the project.

    
    

18. Butler was unable to obtain a final inspection because he failed to file a Notice Of Commencement at the outset of the project. Pyke and Kyler filed the Notice Of Commencement in order to obtain the final inspection. As the contractor of record, it was Respondent's responsibility to ensure that a Notice of Commencement was filed and that the project passed final inspection.

    
    

19. While obtaining the information necessary to file the Notice Of Commencement, Pyke and Kyler learned that Butler was unlicensed and uninsured and that Respondent had used his license to pull the permit. When confronted by Pyke, Respondent did not deny knowledge of the project and assured Pyke that the problems with the project would be corrected.

    
    

20. Despite Respondent's assurances, the code violations have not been corrected. Nor have the defects in construction been corrected.

    
    

    CONCLUSIONS OF LAW

    
    

21. The Division of Administrative Hearings has jurisdiction over the subject matter and parties in this proceeding. The parties were duly noticed for the formal hearing.

22. Petitioner has the burden of proof in this proceeding. Petitioner must show by clear and convincing evidence that Respondent committed the acts alleged in the Administrative Complaint and the reasonableness of any proposed penalty. Ferris v. Turlington, 510 So.2d 292 (Fla. 1987).

    
    

23. Petitioner satisfied its burden of proof. Petitioner showed by clear and convincing evidence that Respondent violated: Sections 489.129(1)(c) and 455.227(1)(a), Florida Statutes; 1/ and Sections 489.129(1) (e), (f), (n), and (p).

    
    

24. Respondent violated Sections 489.129(1)(c) and 455.227(1)(a) by making a false, misleading, and untrue statement in the practice of contracting. Respondent's representation that he was the contractor of record for Kyler was false and untruthful. Respondent had no contractual agreement with Kyler or Kyler's agent that authorized Respondent: to act as the contractor of record to pull the permit; to perform the duties of contractor of record; or to otherwise participate in the project.

    
    

25. Respondent's representation that he was the contractor of record was a misleading statement. It induced the Lake County Building Department to issue a building permit in reliance upon Respondent's misrepresentation of a material fact.

    
    

26. Respondent violated Section 489.129(1)(e) by performing an act which assists a person in the prohibited and uncertified practice of contracting. Respondent knew that Butler is not certified or registered to practice contracting. Respondent admitted that allegation in the Administrative Complaint and did not contest that fact during the formal hearing.

    
    

27. Respondent violated Section 489.129(1)(f) by knowingly combining and conspiring with Butler, an uncertified contractor, to allow Respondent's license to be used to evade the provisions of Section 489. Respondent pulled the permit requested by Butler and did nothing else. Respondent's knowledge of Butler's uncertified status and Respondent's inaction and failure to make any contact with Pyke or Kyler demonstrates Respondent's culpable intent.

    
    

28. Respondent violated Section 489.129(1)(n) by committing incompetency and misconduct in the practice of contracting. Respondent had no authority to act as the contractor for the project but pulled the permit without which Kyler would not have suffered the financial harm he has suffered. Respondent failed to minimize the harm to Kyler by withdrawing the permit prior to completion. Respondent failed to supervise the project to assure that it was properly constructed and complied with applicable code requirements. Respondent failed to ensure that the defects were corrected. The financial harm to Kyler is significant.

    
    

29. Respondent violated Section 489.129(1)(p) by failing to obtain a successful final inspection of the project. No successful final inspection has been obtained.

    
    

30. Section 489.129(1) authorizes a range of penalties for the violations committed by Respondent, including probation, suspension, revocation of Respondent's license and administrative fines. Florida Administrative Code Rule 61G4-17.001 2/ prescribes guidelines for imposing fines. In relevant part, Rule 61G4- 17.001 provides for a fine of: $5,000 for a violation of Section 489.129(1)(a) through misrepresentation; $500 to $2,500 for a violation of

    Sections 489.129(1)(e) and (f); $250 to $1,000 for a violation of Section 489.129(1)(n); and $100 for a violation of Section 489.129(p).

    
    

31. Rule 61G4-17.002 defines mitigating and aggravating circumstances that may be considered in determining the appropriateness of penalties. They include: the monetary damage to the licensee's customer; the job-site violations, including code violations, negligence, or misconduct; the actual damage to the licensee's customer; efforts at rehabilitation; the deterrent effect of the penalty; and any prior disciplinary history.

    
    

32. The monetary and actual damages to Kyler are significant. The project as constructed is of no value to Kyler. Kyler paid $6,897.60 for the project and will incur additional expenses of $10,000 to $12,000 to correct the job site violations which are significant. Respondent has made no effort to correct the job site violations and has made no attempt at restitution.

    
    

33. Section 489.129(1) and Rule 61G4-17.001(19) authorize Petitioner to assess Respondent for the costs of investigation and prosecution in this proceeding. Petitioner's costs to date, as evidenced in accordance with the requirements of Rule 61G4- 12.018, are $717.50 exclusive of legal costs. Petitioner is not seeking legal costs. Petitioner's non-legal costs may increase subsequent to the date of this Recommended Order to investigate and prosecute this proceeding to its conclusion.

    
    

34. The numerous violations committed by Respondent relate to the same project and the same transaction but encompass multiple offenses for which separate penalties apply. However, Respondent has no prior disciplinary history that would support a recommendation of the maximum penalty for each violation. Therefore, the minimum fine for each offense is reasonable when all of the facts and circumstances are considered.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Board enter a Final Order finding Respondent guilty of

violating: Sections 489.129(1)(c) and 455.227(1)(a); and Sections 489.129(1) (e), (f), (n), and (p). It is further recommended that the Board place Respondent on probation for three years, subject to reasonable conditions, impose an administrative fine of $5,000, and assess costs of $717.50 plus reasonable costs incurred by Petitioner subsequent to the date of this Recommended Order to investigate and prosecute this proceeding to its conclusion.

RECOMMENDED this 28th day of March, 1996, in Tallahassee, Florida.

DANIEL S. MANRY, 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 March 1996.

ENDNOTE

1/ All section and chapter references are to Florida Statutes (1995) unless otherwise stated.

2/ All references to rules are to rules promulgated in the Florida Administrative Code as of the date of this Recommended Order.

COPIES FURNISHED:

Richard Hickok, Executive Director Construction Industry Licensing Board Department of Business and Professional

Regulation

7960 Arlington Expressway, Suite 300

Jacksonville, Florida 32211-7467

Lynda L. Goodgame General Counsel

Department of Business and Professional Regulation

Northwood Center

1940 North Monroe Street Tallahassee, Florida 32399-0792

Elizabeth Masters

Senior Construction Attorney Department of Business and

Professional Regulation

7960 Arlington Expressway, Suite 230

Jacksonville, Florida 32211

Ed J. Adams, pro se,

20 Capehart Drive Orlando, Florida 32807

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: 95-005908

Orders for Case No: 95-005908