STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

FLORIDA CONSTRUCTION INDUSTRY ) LICENSING BOARD, )

)

Petitioner, )

)

vs. ) CASE NO. 76-1210

)

PETER F. SOPP, )

)

Respondent. )

)

RECOMMENDED ORDER

A hearing was held in he above-captioned matter, after due notice, at Winter Park, Florida, on October 22, 1976, before the undersigned Hearing Officer.

APPEARANCES

For Petitioner: David Linn, Esquire

217 South Adams Street Post Office Box 1386 Tallahassee, Florida

For Respondent: Thomas Boroughs, Esquire

Post Office Box 1876 Winter Park, Florida 32789

ISSUE PRESENTED

Respondent's alleged violations of Section 468.112 (2)(c) and 468.112(2)(e), Florida Statutes.

At the commencement of the hearing, Petitioner moved to amend paragraphs 2b and 3b of its Amended Administrative Complaint to reflect that KNR, Inc. was registered by the Board to practice pool contracting in Indian River County, Florida, rather than Broward County, Florida, as alleged. The motion was granted and the complaint so amended.

FINDINGS OF FACT

1. Respondent was registered with the Petitioner as a pool contractor, registration 21084, in May, 1974, based on an occupational license and certificate of competency from Seminole County, Florida. His registration expired on June 30, 1975. A renewal was requested on July 25, 1975, but renewal of registration was not issued by the Petitioner until December 10, 1975. (Petitioner's Exhibit 1)

   
   

2. In June, 1974, Respondent's firm, Surfside Pools, Inc., entered into a contract with Betty A. Haynes to build a swimming pool with screened enclosure

   at her residence in Zellwood, Orange County, Florida, for a total sum of

   $7,995.00. During June through August, 1974, Haynes paid Surfside Pools the contract sum by five personal checks drawn in varying amounts, all of which reflect the endorsement of "Surfside Pools, Inc." and two show the additional signature of "Peter F. Sopp, President." At least one of the checks was delivered personally by Haynes to Respondent. The pool, with enclosure, was completed by Respondent. Haynes testified that on October 3, 1974, she received a notice of claim of lien from a firm named Climatrol, based on its failure to receive payment for constructing the screened enclosure for the pool. Haynes testified that Climatrol sued her in the civil courts and recovered final judgment in the sum of $1,544.76, plus interest and costs. (Testimony of Haynes, Petitioner's Exhibit 9)

   
   

3. On September 25, 1975, John L. Condon, 10132 Moultree Court, Orlando, Orange County, Florida, contracted with KNR Corporation to build a swimming pool at his residence for the sum of $5,350.00. The contract was signed by William

   1. Kummer for KNR Corporation and he was the individual with whom Condon dealt throughout the term of the contract. Condon neither knows Respondent nor did he ever see him during construction of the swimming pool. (Testimony of Condon, Petitioner's Exhibit 7)

      
      

4. On November 15, 1975, L.C. Thomas, 10354 Jefferson Street, Orlando, Orange County, Florida contracted with KNR Corporation for the construction of a swimming pool at his residence for the sum of $5,200.00. The contract was signed by Kummer on behalf of KNR Corporation. Thomas dealt only with Kummer as to the contract and never knew Respondent or saw him during the contract period. (Testimony of Thomas, Petitioner's Exhibit 6)

   
   

5. Master Pools/KNR Corporation was registered with Petitioner as a pool contractor on August 11, 1975, based on an occupational license from Indian River County, Florida. The registration was issued on the application of Gregg

   1. Nekola as qualifier for the corporation. Nekola did not become certified as a pool contractor in Orange County, Florida until June 21, 1976. (Testimony of Klages, Petitioner's Exhibits 2, 4)

   
   

6. Kummer requested Respondent to "pull" county building permits for the Thomas and Condon pools because KNR Corporation was not qualified to practice pool contracting in Orange County at that time. Respondent was never associated with KNR Corporation in any respect and at no time did he have any management or control of that firm. Neither did he directly or indirectly supervise construction of the pool other than provide advice to KNR Corporation as to the soil conditions and local building requirements in the area. Kummer paid Respondent $100 each to obtain permits for the two pools. On October 6, 1975, Respondent made application for and received a permit from Orange County for the Condon pool, and on November 18, 1975, made application for and received a building permit for the Thomas pool. The permits were issued by the Orange County Building Department pending receipt of Respondent's state registration renewal. (Testimony of Klages1 Kummer, Petitioner's Exhibits 3, 4)

   
   

   CONCLUSIONS OF LAW

   
   

7. Petitioner seeks to revoke or suspend Respondent's license as a registered pool contractor for alleged violations of Sections 468.112(2)(c) and 468.112(2)(e), Florida Statutes. Section 468.112 provides pertinently as follows:

   "468.112 Revocation or suspension of certificate of registration. --

   
   

   1. On its own motion or the verified written complaint of any person, the board may investigate the action of any contractor certified or registered under this part and hold hearings pursuant to

      chapter 120;... The board may take appro- priate disciplinary action if the contractor 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.

      
      

   2. The following acts constitute cause for disciplinary action:

      * * *

      (c) Knowingly combining or conspiring with an uncertified or unregistered person

      by allowing one's certificate of 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 of regis- tration 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.

      * * *

      (e) Diversion of funds or property received for prosecution or completion of a specified construction project or operation where

      as a result of the diversion the contractor is or will be unable to fulfill the terms of his obligation or contract.

      
      

8. As to the alleged violation of Section 468.112(1)(c), the evidence establishes that Respondent and KNR Corporation, through its representative, William Kummer, agreed and, in fact, Respondent did secure two building permits from the Orange County, Florida Building Department for the construction of swimming pools for John L. Condon and L.C. Thomas. It was further shown that Kummer paid Respondent $100.00 for each of the building permits and that they were obtained because KNR Corporation was not then qualified to do business in Orange County. Therefore, there can be no doubt that Respondent knowingly combined with Kummer to allow Respondent's registration to be used by KNR Corporation. Respondent had no active participation in the operations, management or control of the KNR Corporation and, under the terms of the statute, his acts would constitute prima facie evidence of an intent to evade the provisions of Section 468.105 which permit a registrant to engage in contracting only in the area and for the type of work covered by the registration. Since KNR Corporation's registration did not extend to Orange County at that time, the requisite intent has been established.

9. Respondent raises the argument that Section 468.112(1)(c) does not apply because KNR Corporation was not an "uncertified or unregistered person" within the meaning of the statute because it was registered by the state board for Seminole County. However, this argument fails when considering that the clear intent of the legislature, as manifested by a consideration of the statute as a whole, was to deem a person "unregistered" if he has not been authorized by the state board to practice contracting in a particular area of the state. In short, KNR Corporation was "registered" for Seminole County, but "unregistered" for Orange County.

   
   

10. A more persuasive argument of Respondent deals with the question of whether he could have violated the statute, as alleged, since his registration had expired on June 30, 1975, and the purported violations occurred during the months of October and November, 1975, prior to the issuance of his license renewal in December, 1975. Section 468.108 provides that failure to renew a registration during June causes the registration to become "inoperative" and makes it unlawful for any person thereafter to engage or hold himself out as engaging in contracting under the registration unless the certificate of registration is restored or reissued. It is true that Respondent made application for renewal in July, 1975 and that the building permits in question were issued by the Orange County Building Department in anticipation of such reissuance. Nevertheless, at the time the permits were secured, it was impossible for Respondent to allow his registration to be used by anyone else because it was inoperative and of no effect at the time. Although Section 468.112(6) gives the Petitioner authority to pursue disciplinary proceedings against a registrant even though his registration has lapsed, this authority only relates to retention of jurisdiction over acts which occurred when the registrant was validly licensed. It is therefore concluded that Respondent did not violate the cited statutory provision, as alleged.

    
    

11. The allegation of a violation of Section 468.112(1)(e) fails for insufficient evidence. Although it may be true that Respondent diverted a portion of the funds paid to him by Betty Haynes for construction of a screened swimming pool by failing to pay a screening subcontractor, no competent evidence was presented as to the terms of the Haynes contract or as to any contract between Respondent and a subcontractor. Neither was there any competent evidence concerning Respondent's obligation to or failure to pay any such subcontractor. In the absence of such proof, he cannot be held to have violated the statutory provision, as alleged.

RECOMMENDATION

That the allegations against Respondent Peter F. Sopp, be dismissed.

DONE and ENTERED this 12th day of November, 1976, in Tallahassee, Florida.

THOMAS C. OLDHAM

Hearing Officer

Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304

COPIES FURNISHED:

Mr. J.K. Linnan Executive Director

Florida Construction Industry Licensing Board

P.O. Box 8621

Jacksonville, Florida 32211

David Linn, Esquire

217 S. Adams Street

P.O. Box 1386 Tallahassee, Florida

Thomas Boroughs, Esquire

P.O. Box 1876

Winter Park, Florida 32789

================================================================= AGENCY FINAL ORDER

================================================================= BEFORE THE FLORIDA CONSTRUCTION INDUSTRY LICENSING BOARD

FLORIDA CONSTRICTION INDUSTRY LICENSING BOARD,

Petitioner,

vs. CASE NO. 76-1210

PETER F. SOPP, RP 0021084,

P. O. Box 1046, Winter Park, Florida 32789,

Respondent.

/

FINAL ORDER OF FLORIDA CONSTRUCTION INDUSTRY LICENSING BOARD

This cause came before the FLORIDA CONSTRUCTION INDUSTRY LICENSING BOARD at its regular meeting on January 14, 1977.

Respondent was sent the Hearing Officer's findings and recommendations and was given at least 10 days to submit written exceptions to the recommended order. Respondent was notified of the meeting so that respondent or counsel might appear before the Board. Respondent did appear.

The FLORIDA CONSTRUCTION INDUSTRY LICENSING BOARD on January 14, 1977 after

consideration of the findings of fact and the recommendations of the recommended order and exception to the recommended order, by motion duly made and seconded voted to suspend for one year the respondent's license. It is therefore,

ORDERED that the registration of respondent PETER F. SOPP, Number RP 0021084 be and is hereby suspended for one year.

Respondent is hereby notified that he has 30 days after the receipt of this final order to appeal pursuant to Chapter 120, Florida Statutes, and the Florida Appellate Rules.

HAROLD HAIMOWITZ

President

FLORIDA CONSTRUCTION INDUSTRY LICENSING BOARD

Docket for Case No: 76-001210

Orders for Case No: 76-001210