STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

FLORIDA CONSTRUCTION INDUSTRY ) LICENSING BOARD, )

)

Petitioner, )

)

vs. ) CASE NO. 76-035

)

E.J. LAMBERTH, III, ) d/b/a ADDITION BUILDERS, INC. )

)

Respondent. )

)

RECOMMENDED ORDER

A hearing was held in the above-captioned matter on March 9, 1976 at Coral Gables, Florida, after due notice to the parties, by the undersigned hearing officer.

APPEARANCES

For Petitioner: Barry Sinoff, Esquire

Blackstone Building, Suite 1010 Jacksonville, Florida 32202

For Respondent: None

ISSUE PRESENTED

Whether Respondent's License as a general contractor should be revoked for alleged violation of Sections 468.112(2)(a) & (c), Florida Statutes.

Respondent was not present at the hearing although notice of hearing had been provided him under date of February 17, 1976. Accordingly, the hearing was conducted as an uncontested proceeding.

FINDINGS OF FACT

1. E.J. Lamberth, III, holds general contractor certification number 006734. Addition Builders, Inc., Miami, Florida was registered as a certified general contractor on July 16, 1974 with Respondent as the qualifying individual thereon (Exhibits 6 & 7).

   
   

2. On August 16, 1975, Respondent applied for a building permit from Metropolitan Dade County, Florida, for the purpose of adding a den to the home of Mr. and Mrs. S.A. Cohen, 7525 Southwest 77nd Court, Miami, Florida. The contractor for the job was listed as Addition Builders, Inc. Permit Number BS15057 was issued on August 19, 1974 (Exhibit 1.)

   
   

3. On August 6, 1974, Respondent applied for a building permit from the City of North Miami, Florida for the addition of a bedroom and bath at premises

   owned by Mr. & Mrs. Michael J. Retter, 416 N.W. Opa Loka Boulevard, North Miami, Florida which showed Addition Builders, Inc. as the contractor. Permit A2860 was issued on August 20, 1974 (Composite Exhibit 2.)

   
   

4. The work to be performed as set forth in the above permits was pursuant to contracts between the owners and Addition Builders, Inc. as contractor (Exhibits 5 & 8.)

   
   

5. Acting upon complaints filed by the owners of the property involved in the above two contracts, Mr. William F. McDonald, a field investigator for Petitioner, met with the Respondent on February 21, 1975. In a voluntary statement made to Mr. McDonald and Mr. James Brooks, another investigator, at that time, Respondent admitted that he had not actually supervised either job but had depended upon Addition's superintendent to do so, and that he became the qualifying general contractor for Addition as a result of a newspaper advertisement. As part of his investigation, Mr. McDonald established that Respondent had been employed as a recreation supervisor by Metropolitan Dade County since January 9, 1963. McDonald also visited both of the homes in question and observed that the work under the contract was incomplete in February, 1975 (Testimony of McDonald, Exhibits 4, 5 & 9.)

   
   

6. Respondent was never seen by owner Retter during the course of the work. Approximately 60 percent of the work was completed by Addition on this job, but the owner was obliged to complete the remainder himself (Testimony of Michael Retter.)

   
   

7. Respondent advised Addition by letter that, effective December 24, 1974, he was resigning as general contractor for the firm. On February 20, 1975, the building official of the City of North Miami wrote to Respondent advising that they had received complaints on the stoppage of work at the Retter residence and requesting expedition of completion. Respondent answered that he had disassociated himself from Addition Builders, Inc. (Testimony of Lindblad, Composite Exhibit 3A & B.)

   
   

   CONCLUSIONS OF LAW

   
   

8. Respondent is alleged to have violated Sections 468.112(2)(a) and (c), Florida Statutes. Section 468.112 provides generally that Petitioner may take appropriate disciplinary action against a certified contractor if he is found to be "guilty of or has committed any one or more of the acts or omissions constituting cause for disciplinary action set out herein or adopted as rules or regulations by the board" Subsections (2)(a) and (b) provide pertinently:

   
   

   "(2) The following acts constitute cause for disciplinary action:

   1. Willful or deliberate disregard and violation of the applicable building codes or laws of the state or any municipalities, cities or counties thereof.

      * * *

      (c) 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 part. When a certificate holder or registrant allows his certificate or regi-

      stration to be used by one or more companies without having any active participation in the operations, management, or control of said companies, this act constitutes prima facie evidence of an intent to evade the provisions of this part.

      
      

9. As to the alleged violation of Section 468.112(2)(a), Petitioner alleged in paragraph 3 of the Administrative Complaint that on May 14, 1975, the Metro Construction Trades Qualifying Board charged subject with violation of Section 1022(H)(3), Chapter 10, Code of Metropolitan Dade County in that he obtained building permits for the work done on the two jobs in question and did not actually supervise, direct, or control construction or installation covered by such permits. However, Petitioner submitted no evidence as to the contents of the cited county code provision at the hearing and official recognition cannot be taken of such county ordinances. Rule 28-5.25(5) F.A.C. provides that when a matter is tried as uncontested, the Petitioner has the burden of proof of affirmative allegations and affirmative findings shall be based only upon competent and substantial evidence as admissible under Chapter 120, F.S. Accordingly, there being no showing as to the contents of the code in question, a violation of Section 468.112(2)(a) has not been established.

   
   

10. As to the alleged violation of Section 468.112(2)(c), the competent evidence shows that Respondent knowingly "combined" with an unregistered or uncertified person, to wit: Addition Builders, Inc. with intent to evade the provisions of Chapter 468. By Respondent's admission, he orally authorized the owner of that firm to "pull" or obtain the permit for the work to be accomplished at the Cohen residence. He further conceded in his statement to investigators that he did not actually supervise these jobs, but relied upon the superintendent of the firm to do so. The obvious purpose of the registration and certification requirements of Chapter 468 is to prevent unqualified individuals or business firms from accomplishing construction work. It is apparent from the evidence that Respondent permitted his certificate to be used by others with no intention of actually directing, controlling, or otherwise actively participating in the activities of Addition Builders, Inc. It is thus concluded that a prima facie violation has been established in the instant case.

    
    

11. Section 468.112(3) sets forth the authorized disciplinary actions which the board is authorized to take as a result of a finding that a contractor has committed any one or more of the acts or omissions constituting cause for same. In this case, Petitioner seeks to revoke the certification as a general contractor of Respondent. The flagrant manner in which Respondent abandoned the responsibility entrusted to him by the Board to ensure that the interests of the general public are protected fully warrants such action.

RECOMMENDATION

That the certification as a general contractor of E.J. Lamberth, III, Number 0006734, be revoked.

DONE and ENTERED this 5th day of April, 1976, in Tallahassee, Florida.

THOMAS C. OLDHAM

Hearing Officer

Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida

COPIES FURNISHED:

Barry Sinoff, Esquire Blackstone Building Suite 1010

Jacksonville, Florida 32202

Mr. E.J. Lamberth, III Addition Builders 7251 N.E. 2nd Avenue Miami, Florida 33138

Docket for Case No: 76-000035

Orders for Case No: 76-000035