STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF BUSINESS AND )

PROFESSIONAL REGULATION, )

)

Petitioner, )

)

vs. ) CASE NO. 96-0849

)

SERGIO J. ALCORTA, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Administrative Law Judge, Susan B. Kirkland, held a formal hearing in this case on August 13, 1996, in Miami, Florida.

APPEARANCES

For Petitioner: Donna B. Bass, Senior Attorney

Department of Business and Professional Regulation

Northwood Centre

1940 North Monroe Street Tallahassee, Florida 32399-0792

For Respondent: Sergio J. Alcorta, Pro Se

Nisky Center, Mail Box 401 Charlotte Amalie

Saint Thomas, Virgin Islands 00802 STATEMENT OF THE ISSUES

Whether Respondent violated Section 489.127(1)(f), Florida Statutes, and if so, what penalty should be imposed.

PRELIMINARY STATEMENT

On August 16, 1995, the Petitioner, Department of Business and Professional Regulation (Department), filed an administrative complaint against Respondent, Sergio J. Alcorta (Alcorta), alleging that Alcorta violated Section 489.127(1)(f), Florida Statutes, by engaging in the practice of contracting without a license. Alcorta requested an administrative hearing, and the case was forwarded to the Division of Administrative Hearings on February 16, 1996.

The final hearing was scheduled for April 11, 1996. On April 4, 1996, Alcorta advised the Hearing Officer that he was working in the Virgin Islands and would not be available for hearing on April 11, 1996. The final hearing was rescheduled for August 13, 1996.

At the final hearing, Petitioner called Kenneth Quinn, William Uffendell, James Owen Power, and Frank Abbot as witnesses. Petitioners Exhibits 1-13 were admitted in evidence. Respondent testified in his own behalf. Respondent Exhibit 1 was admitted in evidence. The transcript of the final hearing was filed on September 12, 1996.

FINDINGS OF FACT

1. The Respondent, Sergio J. Alcorta (Alcorta), is licensed by the Department of Business and Professional Regulation (Department) as a professional engineer, license number PE 0014464.

   
   

2. Alcorta is not licensed by the Department as a contractor.

   
   

3. Alcorta has a company called mrf building systems, inc. Alcorta d/b/a mrf building systems, inc. is not listed in the records of the Contractors Section, Dade County Building and Zoning Department as a certified contractor doing or contracting for work in the building trades in Dade County.

   
   

4. Hurricane Andrew, which hit the Miami area in August, 1992, damaged the home of Kenneth and Elizabeth Quinn. A friend of the Quinns referred them to Alcorta for assistance. By letter dated September 15, 1992, Alcorta outlined a discussion he had with the Quinns. The letter stated:

   
   

   Per our discussion, I will assist you in dealing with your insurance carrier and other construction workers to ensure that all hurricane damages are accounted for and the work is properly performed.

   I will prepare an initial damage evaluation report of all damages for the insurance adjuster and facilitate on your behalf the transfer of funds from your mortgage holder to you and to any pertinent party.

   My fees will be $150 for the initial evaluation and $500 at the end of construction work where you require my assistance.

   
   

5. By letter dated September 16, 1992, Alcorta advised the Quinns of his findings concerning the damage to their residence. The engineer's report was prepared on the letterhead of Nu-Tech Engineering Services.

   
   

6. Alcorta contacted a general contractor to see if the contractor could perform the work required to repair the Quinn's house. The contractor advised Alcorta that only a roofing permit would be required for the job and that because of the work he was already committed to do, he did not know when he could complete the repairs.

   
   

7. Alcorta and Mr. Quinn signed a proposal on mrf building systems, inc. letterhead dated September 29, 1992. The proposal provided:

   
   

   We propose to furnish all materials, labor, tools, and equipment to repair the storm damaged dwelling at the above referenced

   location as follows:

   
   

   1. Roof recovering with shingles and ply- wood sheathing repairs $7,500.

   2. Structural repairs to concrete columns, stucco repairs as necessary $2,500

   3. Enclosing terrace with new exterior walls and french doors $7,500

   4. Retiling terrace room and pool area

      $2,000

   5. Securing cabinets and other interior damage $1,000

   6. Removal, installation of solar collector $500

   7. New terrace central air conditioner $2,000

   8. Exterior fencing $3,000 Total repair estimate $26,000

      TERMS: One third down payment upon execution of the contract. Partial payments upon completion of work segments. Estimated time for completion of job: 21 days.

      
      

8. On mrf building systems, inc.'s letterhead dated September 30, 1992, Alcorta provided Ms. Quinn with an estimate for interior painting, taking off the roof mounted solar collector and reinstalling it on the new roof, replacing roof insulation, structural epoxy repair, and replacing torn vent screens.

   
   

9. Alcorta was paid approximately $14,650 by the Quinns on this project. Alcorta in turn paid for some of the materials and labor used on the project. The checks from the Quinns were made payable to Alcorta, not to mrf building systems, inc.

   
   

10. By letter dated October 2, 1992, on mfr building systems, inc., letterhead, Alcorta forwarded a copy of the contract with the Quinns to the Quinn's mortgage company advising them that the Quinns had given him a down payment of $4,000 and listing the anticipated completion dates for the various tasks to be performed.

    
    

11. Alcorta bought supplies and had laborers come to the site to perform work. There was no licensed contractor on the job.

    
    

12. The only building permit pulled on the project was obtained by Elizabeth Quinn, the homeowner. The building permit did not carry the disclosure statement required by Section 489.103(7), Florida Statutes. Alcorta witnessed Ms. Quinn's signature on the application for building permit. Alcorta did not advise the Quinns that they were to act as contractors per Section 489.103(7), Florida Statutes.

    
    

13. The Quinns did not supervise the construction on the project but relied on Alcorta to supervise the work. Alcorta was not an employee of the Quinns.

    
    

14. The Quinns experienced problems with the roofing work performed pursuant to the contract with mrf building systems, inc. The roof leaked, requiring the Quinns to have the roof replaced at a cost of $10,000.

    CONCLUSIONS OF LAW

    
    

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

    
    

16. The Department has alleged that Alcorta violated Section 489.127(1)(f), Florida Statutes, (1992 Supp.) which provides that no person shall:

    
    

    Engage in the business or act in the capacity of a contractor or advertise him- self or a business organization as available to engage in the business or act in the capacity of a contractor without being duly registered or certified;

    
    

17. Section 489.105(3), Florida Statutes (1992 Supp.) defines a "contractor" as follows:

    
    

    1. he person who is qualified for, and shall only be responsible for, the project that person contracted for and means, except as exempted in this part, the person who, for compensation, under takes to, submits a bid to, or does himself or by others construct, repair, alter, remodel, add to, subtract from, or improve any building or structure,

       including related improvements to real estate, for others or for resale to others; and whose job scope is substantially similar to the job scope described in one of the subsequent paragraphs of this subsection. Contractors are subdivided into two divisions, Division

       I, consisting of those contractors defined in paragraphs (a)-(c), and Division II, consisting of those contractors defined in paragraphs (d)-(o):

       1. 'General Contractor' means a contractor whose services are unlimited as to the type

          of work which he may do, except as provided in this part.

       2. 'Building Contractor' means a contractor whose services are limited to construction of commercial buildings and single-dwelling or multiple-dwelling residential buildings, which commercial or residential buildings do not exceed three stories in height, and accessory use structures in connection therewith or a contractor whose services are limited to remodeling, repair, or improvement of any size building if the services do not affect the structural members of the building.

       3. 'Residential Contractor' means a contractor whose services are limited to construction, remodeling, repair, or

    improvement of one-family, two-family, or three family residences not exceeding two habitable stories above no more than one uninhabitable story and accessory use structures in connection therewith.

    
    

18. "Contracting" is defined in Section 489.05(6), Florida Statutes, (1992 Supp.).

    
    

    'Contracting' means, except as exempted in this part, engaging in business as a contractor and includes but is not limited to, performance of any of the acts as set forth in subsection (3) which define types of contractors. The attempted sale of contracting services and the negotiation or bid for a contract on these services also constitutes contracting. If the services offered require licensure or agent qualifi- cation, the offering, negotiation for a bid, or attempted sale of these services requires the corresponding licensure. However, the term 'contracting' shall not extend to an individual, partnership, corporation, trust, or other legal entity that offers to sell or sells completed residences on property which the individual or business entity has any legal or equitable interest, if the services of a qualified contractor certified or registered pursuant to the requirements of this chapter have been or will be retained for the purpose of constructing such residences.

    
    

19. Entering into the contract with the Quinns on behalf of mrf building systems, inc. by Alcorta constituted contracting as that term is defined in Section 489.05(6), Florida Statutes (1992 Supp.). Alcorta's activities in buying the materials and having the work performed through laborers also constituted contracting. Alcorta was engaged in the business of a contractor. Neither Alcorta nor mrf building systems, inc. is licensed as a contractor. Alcorta violated Section 489.127, Florida Statutes (1992 Supp.).

    
    

20. Section 489.103(11), Florida Statutes (1992 Supp.) requires that an architect or engineer shall not act as contractor unless licensed as a contractor pursuant to Chapter 489, Florida Statutes. The evidence is clear that Alcorta was engaged in the business of contracting and not engineering when he contracted with the Quinns to perform the repair work and when he had the work performed through others. Being a registered engineer did not relieve Alcorta of the requirement of being licensed as a contractor to engage in contracting.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is

RECOMMENDED that a Final Order be entered finding that Sergio J. Alcorta violated Section 489.127(1)(f), Florida Statutes (1992 Supp.), and assessing an administrative penalty of $3,000.

DONE AND ENTERED this 20th day of November, 1996, in Tallahassee, Leon County, Florida.

SUSAN B. KIRKLAND

Administrative Law Judge

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

(904) 488-9675 SUNCOM 278-9675

Fax Filing (904) 921-6847

Filed with the Clerk of the Division of Administrative Hearings this 20th day of November, 1996.

COPIES FURNISHED:

Donna Bass, Senior Attorney Department of Business and

Professional Regulation Division of Regulation Northwood Centre

1940 North Monroe Street Tallahassee, Florida 32399-0750

Mr. Sergio J. Alcorta Nisky Center, Mail Box 401 Charlotte Amalie

St. Thomas, Virgin Islands 00802

Lynda Goodgame, Genral Counsel Department of Business and

Professional Regulation Northwood Centre

1940 North Monroe Street Tallahassee, Florida 32399-0792

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within 15 days from the date of 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: 96-000849

Orders for Case No: 96-000849