STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

In re: The revocation of the ) certified pool contractor's ) license CP C 009205 and the )

certified general contractor's ) CASE NO. 76-1978 license CG C 001828 of George C. )

Moyant, Hollywood, Florida. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, K. N. Ayers, held a public hearing in the above styled case on February 14, 1977 at Fort Lauderdale, Florida.

APPEARANCES

For Petitioner: David Linn, Esquire

2175 Adams Street Tallahassee, Florida

For Respondent: Jerome Simons, Esquire George C. Moyant 2621 Hollywood Boulevard

Hollywood, Florida 33020

By Administrative Complaint received November 9, 1976, the FCILB, Petitioner, seeks to revoke, suspend, or otherwise discipline the pool contractor's license and the general contractor's license of George C. Moyant, Respondent. As grounds there for it is alleged that Moyant, in consideration of a payment of $500 by Anthony Schmidt, obtained a permit from Collier County to build a swimming pool for John R. Dottore, a resident of Collier County, knowing that Schmidt had contracted to build the pool for Dottore. That Moyant thereby violated various provisions of Chapter 468 Part II, F.S. to wit: Section 468.112(2)(a)a, willful or deliberate disregard and violation of applicable building codes or laws of the state, county, or municipality thereof; Section 468.112(2)(b) aiding or abetting any uncertified or unregistered person to evade any provision of this part; and Section 468.112(2)(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.

At the hearing two witnesses were called by the Board, seven witnesses, including the Respondent, were called by the Respondent, and seven exhibits were admitted into evidence.

FINDINGS OF FACT

1. On December 30, 1975, Collier County adopted Ordinance No. 75-57 which required, among other things, swimming pool contractors to be licensed by the county or state after establishing their competency. Prior to this time swimming pool contractors did not need certificates of competency to construct swimming pools.

2. Anthony Schmidt had been engaged in the manufacture and installation of swimming pools for several years before opening a swimming pool business in Collier County.

   
   

3. On April 22, 1976 Schmidt entered into a contract (Exhibit 1) to construct a swimming pool for John Dottore in Naples, Florida. Shortly thereafter Schmidt was issued a violation by an investigator of the FCILB for starting a different pool without a license.

   
   

4. Schmidt contacted friends to ascertain who he could get to "pull" the permit needed to construct Dottore's pool, and was subsequently introduced to George C. Moyant, Respondent, a resident of Hollywood, Florida. He was introduced to Moyant at Moyant's house at a meeting arranged by mutual friends. The alleged purpose of this meeting was special tutoring of Schmidt by Moyant to prepare Schmidt for the pool contractor's exam and no other subject was discussed at this meeting. No final arrangements for such tutoring were made.

   
   

5. Respondent holds Pool Contractor's License # CP C009205 and General Contractor's License #CG C001828 issued by the FCILB. He is president of Allstate Construction College, Inc. and prepares applicants for the various examinations required for registration with the FCILB.

   
   

6. Subsequent to the meeting at Moyant's house Schmidt contacted Moyant regarding Moyant pulling a permit for Schmidt to construct Dottore's pool, and on a subsequent visit by Moyant to Naples Moyant, in company with Schmidt, submitted an Application for Building Permit (Exhibit 4) prepared and signed by Schmidt, showing the contractor to be George C. Moyant, License #CP C009205. At the same time Collier County Permit (Exhibit 5) was issued to Moyant as contractor for the construction of a swimming pool for Dottore.

   
   

7. Immediately thereafter, at the Collier County Courthouse parking lot Schmidt gave Moyant a check dated May 4, 1976 in the amount of $500. Moyant's testimony that the payment was an advance for tuition is not credible.

   
   

8. Moyant admits that Schmidt called him around the first of May for help in getting a permit for the swimming pool for Dottore and that he, Moyant, was "very reluctant" but assented to come to Naples to help Schmidt out and in fact, pulled the permit.

   
   

9. Moyant recognized that his actions were in violation of the laws unless "one does things correctly." He advised Schmidt that his brother or the mutual friend, both of whom have general contractor's licenses would act as his, Moyant's, agent "if any problems come up".

   
   

10. Before Schmidt completed the pool an investigator for the FCILB became aware of the circumstances surrounding the issuance of the permit and the investigation and administrative complaint followed.

    
    

    CONCLUSIONS OF LAW

    
    

11. Section 468.112(2) F.S. provides, in part, that the following acts constitute cause for disciplinary action:

    
    

    "(a) Willful or deliberate disregard in violation of the applicable building code

    or laws of the state or any municipality, cities or counties thereof.

    
    

    1. Aiding or abetting any uncertified or unregistered person to evade any provision of this part.

       
       

    2. 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 operation, management, or control of said company, this act constitutes prima facie evidence of an intent to evade the provisions of this part."

       
       

12. Collier County Ordinance No. 75-57 in Section II thereof provides in part:

    
    

    "It shall be unlawful for any person or firm to engage in the business or act in the capacity of ... pool contractor ... without having first obtained a valid and current State Certificate of Competency

    
    

13. By pulling the permit, which was necessary for Schmidt to install the swimming pool contracted for, Moyant acted in willful disregard of the Collier County Ordinance above quoted, aided and abetted Schmidt to install a pool without having a pool contractor's license, and conspired with Schmidt to allow Moyant's registration to be used by Schmidt, an unregistered person, with intent to evade the provisions of Chapter 468, Part II, F.S. Moyant's attempt to refute the illegality of his acts by his testimony that he considered himself to be the contractor is not supported by the operative facts here involved.

    Telling Schmidt to advise him, through his agent, if anything went wrong, clearly implies that Moyant expected to have. nothing further to do with the contract after the permit had been obtained. Moyant knew that Schmidt was an experienced pool builder and obviously had installed many more pools than had Moyant.

    
    

14. In mitigation Moyant presented testimony of Broward County building officers that Moyant had always been cooperative and had no outstanding complaints against him. Additionally Respondent has not done any construction or pulled any permits on his own behalf for the past three years as his full time has been devoted to running his school.

    
    

15. The Administrative Complaint proposes that disciplinary action be taken against Respondent's general contractor's license and his pool contractor's license although all of Respondent's acts complained of could have been committed under his pool contractor's license only. While it may be argued that as a matter of law the pool contractor's license merged with the general contractor's license when Respondent was issued the latter license, the statute does not specifically so provide, and no action was taken by the Board to merge

the licenses. It is clear that Respondent can legally perform all construction under his general contractor's license that he can perform under his pool contractor's license. Accordingly, disciplinary action against Respondent's pool contractor's license can in no way impair Respondent from performing any pool construction for which he may contract. Therefore, to effectively discipline Respondent's registration, action must be taken against his general contractor's license as well as his pool contractor's license.

From the foregoing it is concluded that Respondent, George C. Moyant, is guilty as alleged. It is therefore,

RECOMMENDED:

That George C. Moyant be fined $500 and that his general contractor's license #CG C 009205 and his pool contractor's license #CP C 001828 be suspended for a period of one year. It is further RECOMMENDED:

That if George C. Moyant pays the $500 penalty within thirty (30) days of the Board's Order that the suspension be reduced to six (6) months.

DONE and ENTERED this 32rd day of March, 1977, in Tallahassee, Florida.

K. N. AYERS Hearing Officer

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

COPIES FURNISHED:

Jerome A. Simons, Esquire 2621 Hollywood Boulevard

Hollywood, Florida 33020

David Linn, Esquire 2175 Adams Street Tallahassee, Florida

Docket for Case No: 76-001978

Orders for Case No: 76-001978