STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

FLORIDA CONSTRUCTION INDUSTRY ) LICENSING BOARD, )

)

Petitioner, )

)

vs. ) CASE NO. 77-496

)

1. MOORE, RB 0006989 and )

   RB 00A6989, )

   )

   Respondent. )

   )

   
   

   RECOMMENDED ORDER

   
   

   This case was heard in Room 465, Orange County Courthouse, 65 East Central Boulevard, Orlando, Florida, at 9:00 A.M. on July 1, 1977, by Stephen F. Dean, assigned Hearing Officer of the Division of Administrative Hearings. This case was heard on an Administrative Complaint filed by the Florida Construction Industry Licensing Board against K. C. Moore alleging that Moore had violated Section 468.112(2)(b), Florida Statutes, and Section 468.112(2)(c), Florida Statutes, by aiding or abetting an uncertified or unregistered person to evade the provisions of the law or normally combining or conspiring with an uncertified person to allow his certificate or certification to be used by uncertified or unregistered persons.

   
   

   APPEARANCES

   
   

   For Petitioner: Barry Sinoff, Esquire

   1010 Blackstone Building

   Jacksonville, Florida 32202

   
   

   For Respondent: R. Stephen Miles, Jr., Esquire

   Miles and Cumbie Post Office Box 517

   Kissimmee, Florida 32741 FINDINGS OF FACT

   1. K. C. Moore is a registered builder contractor holding License No. RB 0006989 and RB 00A6989 issued by the Florida Construction Industry Licensing Board.

      
      

   2. K. C. Moore applied for a building permit in Osceola County on September 10, 1976, to build a single family residence and this building permit was approved and issued September 17, 1976. See Exhibit 1. K. C. Moore filed with the application for building permit a letter to the director of Building and Zoning, Osceola County, Florida, as provied by their regulations, authorizing Joseph Arduengo to call for inspections on the house. See Exhibit

1. K. C. Moore and John O. Rao entered into a contract on August 15, 1976 for the construction of a single family residence. This contract related to the

   construction of the house for which the building permit mentioned above was obtained. The contract provides that the contractor shall furnish all of the materials and perform all of the work shown in the drawings and described in the specifications for the single family residence prepared by Chuck Parsons; however, the contract further provides that all materials and labor will be paid for by the owner. The owner agrees under the contract to pay the contractor a lump sum amount for performance of the contract and further the owner agrees to make payments to the subcontractors as work is completed. See Exhibit 3. K. C. Moore, in accordance with the contract, applied and received the building permit, provided insurance on the construction project, inspected the project, met and discussed the progress of construction with Arduengo and guaranteed all work dome for a period of one year from the completion of the residence against defects and materials and workmanship. Arduengo contacted all materialmen and subcontractors who dealt directly with Arduengo and who received payment directly from John O. Rao, the owner.

   
   

2. John O. Rao is a physician in Osceola County who prior to construction of the house which is the subject of this complaint, had constructed two other homes for sale. Arduengo had acted as building superintendent for Dr. Rao in the construction of these homes. However, because of difficulties in obtaining building permits in the absence of a building contractor, Dr. Rao sought out K.

   C. Moore and requested that he function as the contractor on the house in question. K. C. Moore undertook the position with the understanding that Arduengo would function as building superintendent but that he (Moore) would be responsible for the job and insure that all work was performed in a workman like manner. In this regard, K. C. Moore inspected the work performed under the supervision of Arduengo in the two houses already constructed and was satisfied with his ability to function in this regard. The contract with Dr. Rao provided that Dr. Rao would be responsible for the payment for all materials and labor in the construction of the house. Although Arduengo was employed by and paid by Rao, Arduengo and Rao knew that K. C. Moore was responsible for this construction pursuant to the contract. The construction was directly supervised by Arduengo, acting as building superintendent, in accordance with the plans and specifications and in compliance with all building codes of Osceola County. All of the construction inspections were passed on the first inspection, with the exception of one, which was corrected and which K. C. Moore paid for and arranged the reinspection of the work. For his services, K. C. Moore received a lump sum payment of $500.

   
   

   CONCLUSIONS OF LAW

   
   

3. K. C. Moore is charged with aiding or abetting any uncertified or unregistered person to evade any provision of Part II of Chapter 468 and knowingly combining or conspiring with an uncertified or unregistered person allowing his certificate of registration to be used by an uncertified or unregistered person ;3with the intent to evade provisions of Part II, Chapter 468, and failing in any material respect to comply with the provisions of Part II, Chapter 468.

   
   

4. The legal issue involved is whether a contractor must deal directly with subcontractors or whether the owner may deal directly with subcontractors and the contractor be responsible for the overall construction project pursuant to contract.

   
   

5. Section 468.102, Florida Statutes, defines contractor as any person who, for compensation, undertakes to, or submits a bid to, or does himself or by others, construct, repair, alter, remodel, add to, subtract from, improve any

   building or structure, for others or for resale to others. The purpose of Part II, Chapter 468, is to regulate the activity of contracting in such a manner that only qualified persons may engage in the activity and to require contractors certified or registered with the Board to adhere to the building codes of the state, its municipalities, cities and counties and to be financially responsible to those with whom he contracts. See Section 468.112(2)(a) and (e), Florida Statutes.

   
   

6. The activities of K. C. Moore pursuant to the contract with Dr. Rao were such that Moore would have been in violation of Section 468.111 had Moore not been registered under the pro visions of Part 11 because he undertook through others for compensation to construct a building for resale to others. As his activities relate to the purposes of Part II, Chapter 468, K. C. Moore was responsible and remained responsible for up to one year following the completion of the house for all work and materials in the house under the terms of the contract. As pointed out by various witnesses at the hearing, many contractors used building superintendents to supervise work on a specific

   project and it is not unusual for am owner to contract for, pay for, and in some instances work directly with subcontractors in the completion of a specific phase of construction. However, it is the contractor who is ultimately responsible for completion of the project in accordance with the specifications and plans, and in compliance with the applicable building codes. K.- C. Moore, pursuant to the contract and in the eyes of the building officials of Osceola County, was the individual ultimately responsible for the construction. In the one instance in which a portion of the construction on the house failed to pass initial inspection, it was K. C. Moore who assumed responsibility as contractor for inspection.

   
   

7. It has been argued that the following language of Section 468.102(1), Florida Statutes, requires a contractor to be directly involved in the subcontracting of these phases of construction.

   
   

   However, a 'contractor' shall sub- contract the electrical, mechanical, plumb-

   ing, roofing, sheet metal, and air condition- ing work for which an examination for a certificate of competency or a license is required, unless such contractor holds a cer- tificate of competency or license of the respective trade category, as required by the appropriate local authority."

   
   

   Taking the provisions of Section 468.102(1) pari materia, it is clear that the aforestated language prohibits a contractor from engaging in any phase of construction for which a certificate of competency or license is required and which the contractor is not qualified to perform. It does not, as argued, require the contractor to be directly involved in the subcontracting of such work. For example, if a contractor undertook to construct a home for an owner who was a qualified licensed electrical contractor, the owner himself could undertake to complete the electrical phase of construction. Similarly, an owner could contract directly with a subcontractor for specialty cabinet work to be installed in a home. However, in every case the contractor would be ultimately responsible for the total project to the building officials and to his principle under the terms of his contract.

   
   

8. Because the activities of K. C. Moore would, place him within the definition of a contractor as the term is used in Part II, and because K. C.

Moore was ultimately responsible for all construction on the project, his activities were those of a contractor and, therefore, do not constitute a violation of Section 468.112 (2)(b) , (c) or (g), Florida Statutes.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions of Law, the Hearing Officer would recommend that no action be taken against the licenses of

K. C. Moore as a registered builder contractor.

In addition, the testimony at the hearing revealed that subsequent to the institution of this complaint that Dr. 0. Rao, M.D., did make application to the Florida Construction Industry Licensing Board for licensure as a contractor, that his application was approved, and that upon successful completion of the Board's examination he was licensed. If K. C. Moore is in fact guilty of aiding or abetting or knowingly combining or conspiring with a person to violate Part II, Chapter 468, the person with whom he combined or conspired or who he aided or abetted was Dr. John 0. Rao. Although the Board may be limited under the statutory provisions in denying Dr. Rao the license, assuming the Board rejects the Hearing Officer's Conclusions of Law and finds the facts constitute a violation of the statutory provisions, there is an absence of essential fairness to proceed against the licenses of K. C. Moore while licensing the individual with whom he contracted. The disparity in treatment of K. C. Moore and Dr. John

0. Rao is a factor which must be considered by the Board.

DONE and ORDERED this 20th day of July, 1977, in Tallahassee, Florida.

STEPHEN F. DEAN, Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304

(904) 488-9675

COPIES FURNISHED:

Barry Sinoff, Esquire 1010 Blackstone Building

Jacksonville, Florida 32202

R. Stephen Miles, Jr., Esquire Mile and Cumbie

Post Office Box 517 Kissimmee, Florida 32741

Mr. J. K. Linnan Executive Director

Florida Construction Industry Licensing Board

Post Office Box 8621 Jacksonville, Florida 32211

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

=================================================================

STATE OF FLORIDA

FLORIDA CONSTRUCTION INDUSTRY LICENSING BOARD

FLORIDA CONSTRUCTION INDUSTRY LICENSING BOARD,

Petitioner,

DIVISION OF ADMINISTRATIVE

vs. HEARINGS DOCKET NO. 77-496

K.C. MOORE, RB 0006989 and RB 00A6989,

Respondent.

/

FINAL ORDER OF

FLORIDA CONSTRUCTION INDUSTRY LICENSING BOARD

This cause came before the FLORIDA CONSTRUCTION INDUSTRY LICENSING BOARD at its regular meeting on August 12, 1977.

Respondent was sent the Hearing Officer's findings and recommendation 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 not appear with his attorney, Mr.

R. Stphen Miles, Jr.

The FLORIDA CONSTRUCTION INDUSTRY LICENSING BOARD on August 12, 1977 by

motion duly made and seconded voted tos uspend the registration of K. C. MOORE for a period of one year after considering the findings of fact and the reocmmendations of the recommended order and the transcipt of the administrative hearing. It is therefore,

ORDERED that the registration of respondent K. C. MOORE, Numbers RB 0006989 and RB 00A6989,be and is hereby suspended for a period of one year.

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

FLORIDA CONSTRUCTION INDUSTRY LICENSING BOARD

BY:

JOHN HENDY JONES, President

Mailed this 29th day of August, 1977.

=================================================================

DISTRICT COURT OPINION

=================================================================

IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA FOURTH DISTRICT JANUARY TERM 1993

K. C. MOORE, NOT FINAL UNTIL THE TIME EXPIRES TO FILE REHEARING MOTION,

Petitioner, AND, IF FILED, DISPOSED OF.

vs. CASE NO. 77-2083

DOAH CASE NO. 77-496

FLORIDA CONSTRUCTION INDUSTRY LICENSING BOARD

Respondent.

/ Opinion filed February 21, 1978.

Petition for writ of certiorari to the Florida Construction Industry Licensing Board; John Henry Jones, President.

Stephen Miles, Jr. of Miles and Cumbie, Kissimmee, for petitioner.

Barry S. Sinoff of Jacobs, Sinoff, Edwards, Alford & Burgess, Jacksonville, for respondent.

ANSTEAD, J.

The petitioner, K. C. Moore, is here seeking to overturn an order of the Florida Construction Industry Licensing Board suspending his contractor's license for one year.

An administrative complaint was filed alleging that Moore allowed his license to be used on a construction project while not actively participating as a contractor on the project himself. A hearing examiner conducted a trial and concluded in his recommended order and findings of fact that Moore was not guilty. The board, in an order which made no finding as to Moore's guilt or innocence or discussed the hearing examiner's findings, suspended his license for one year.

Accordingly, the petition for writ of certiorari is granted and the final order of August 29, 1977 is hereby quashed with directions that an order be entered in accordance with this decision. The petitioner's request for attorney's fees and costs is denied.

ALDERMAN, C.J., and MOORE, J., concur.

MANDATE

From

DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA FOURTH DISTRICT

This cause having been brought to this Court by appeal, and after due consideration the Court having issued its opinion;

YOU ARE HEREBY COMMANDED that such further proceedings be had in said cause in accordance with the opinion of this Court, and with the rules of procedure and laws of the State of Florida.

WITNESS the Honorable James C. Downey, Chief Judge of the District Court of Appeal of the State of Florida, Fourth District, and the seal of said Court at West Palm Beach, Florida on this day.

DATE: April 27, 1978

CASE NO.: 77-2083

DOAH CASE NO. 77-496

Debbie Picklesome District Court of Appeal Fourth District

================================================================= DISTRICT COURT ORDER

=================================================================

IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA

FOURTH DISTRICT

K. C. MOORE,

Appellant.

v. CASE NO. 77-2083

DOAH CASE NO. 77-496

FLORIDA CONSTRUCTION INDUSTRY LICENSING BOARD,

Appellee.

/ March 28, 1978

BY ORDER OF THE COURT:

ORDERED that the petition for rehearing filed March 8, 1978 is hereby denied.

A TRUE COPY

CLYDE L. HEATH, CLERK

cc: Barry S. Sinoff, Attorney

R. Stephen Miles, Jr., Attorney

Docket for Case No: 77-000496

Orders for Case No: 77-000496