STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

STATE OF FLORIDA, DEPARTMENT OF ) PROFESSIONAL REGULATION, FLORIDA ) CONSTRUCTION INDUSTRY LICENSING ) BOARD, )

)

Petitioner, )

)

vs. ) CASE NO. 79-502

)

1. J. POLLOCK, )

   )

   Respondent. )

   )

   
   

   RECOMMENDED ORDER

   
   

   Pursuant to notice, a hearing was held before Charles C. Adams, a Hearing Officer with the Division of Administrative Hearings, on September 10, 1979, beginning at 10:30 a.m. The hearing was held in Room 359, State Office Building, 1350 N.W. 12th Avenue, Miami, Florida. This Recommended Order is being entered after affording the parties sixty days beyond the date of the hearing within which time further negotiations could be conducted to promote the possible settlement of this case. That settlement was not forthcoming, hence the Recommended Order.

   
   

   APPEARANCES

   
   

   For Petitioner: Barry Sinoff, Esquire

   Sinoff, Edwards & Alford 2400 Independent Square One Independent Drive

   Jacksonville, Florida 32202

   
   

   For Respondent: H. Adams Weaver, Esquire

   310 Okeechobee Boulevard Post Office Box M

   West Palm Beach, Florida 33402 ISSUE

   The issue in this cause concerns an Administrative Complaint by the Petitioner against the Respondent, E. J. Pollock, on the subject of construction work allegedly done by the Respondent for one Thor Brickman. Specifically, the Administrative Complaint states that the facts involved in the Brickman job show that the Respondent was purportedly in violation of Subsection 468.112(2)(a), Florida Statutes, for willfully or deliberately disregarding and violating applicable building codes or laws of the state or any municipalities, cities or counties thereof, and in violation of Subsection 468.112(2)(d), Florida Statutes, for acting in the capacity of a contractor under any certificate or registration issued under any provision of law, except in the name of the certificate holder or registrant as set forth under the issued certificate or

   registration, or in accordance with the personnel of the certificate holder or registrant as set forth in the application for the certificate or registration or as later changed as provided in the statute.

   
   

   FINDINGS OF FACT

   
   

   1. This cause comes on for consideration based on the Administrative Complaint of the Petitioner, State of Florida, Department of Professional and Occupational Regulation, Florida Construction Industry Licensing Board, now referred to as State of Florida, Department of Professional Regulation, Florida Construction Industry Licensing Board. The essential allegations of the Administrative Complaint are as found in the issue statement of this Recommended Order and that discussion in the issue statement is incorporated into the Findings of Fact and made a part hereof.

      
      

   2. The Petitioner, State of Florida, Department of Professional Regulation, Florida Construction Industry Licensing Board, is an agency of the State of Florida, which has the responsibility to regulate those individuals who serve the public in the capacity of contractors in the State of Florida. This regulatory function carries with it the obligation to prosecute those individual licensees whom the regulatory agency believes to have committed offenses as defined by Chapter 468, Florida Statutes. The possible outcome of such a prosecution carries with it the potential revocation or suspension of the license of those persons regulated by the agency.

      
      

   3. On this occasion, by Administrative Complaint, the Petitioner has charged E. J. Pollock, d/b/a Miami Advertising, Inc., with violations of Chapter 468, Florida Statutes, as set out herein. The Respondent has replied to the Administrative Complaint by reguesting a Subsection 120.57(1), Florida Statutes, hearing, which de novo hearing was held on the date and at the time and place set out above.

      
      

   4. E. J. Pollock, d/b/a Miami Advertising, Inc., is the holder of a Certified general Contractor's license, No. CG C004577, held with the Petitioner. That license was current and active in October, 1975, and continued as an active license until the year 1977 when the license became inactive and it remains inactive at this time.

      
      

   5. The facts reveal that the Respondent in 1975 entered into a discussion with Dr. Thor Brickman about assisting Dr. Brickman in obtaining a building permit from the Metropolitan Dade County Building and Zoning Department, Dade County, Florida. This permit was to allow the construction of certain office alterations of Dr. Brickman's office located at 1136 N.W. 119th Street, Dade County, Florida. The plans and specifications for such alterations may be found as Petitioner's Exhibit No. 8 admitted into evidence. After some discussion, the Respondent and Dr. Brickman concluded an arrangement by which the Respondent would act as a contractor on the job, in the sense of having the overall responsibility for its construction. This included the responsibility to pay the workers, sub contractors and material man. The agreement between Pollock and Brickman was one in which Pollock was acting in his individual capacity as opposed to through affiliation with a contracting firm. However, at the time Pollock entered into this agreement with Dr. Brickman, his Certified general Contractor's license had been transferred to an affiliation with Miami Advertising, Inc. The Respondent had made this transfer in anticipation of a job to be performed for Miami Advertising, Inc., and in fact certain preliminary matters had been concluded with Pollock acting as manager for the project for Miami Advertising, Inc.

   6. Miami Advertising, Inc., was without knowledge of the contract between Pollock and Dr. Brickman.

      
      

   7. Notwithstanding the lack of knowledge on the part of Miami Advertising, Inc., and the representations to Brickman that the Respondent was acting in his individual capacity when he contracted to remodel Brickman's office, the Respondent applied for a building permit to be issued by the Dade County Building and Zoning Department and in doing so he indicated that he was securing that permit as a qualifier for Miami Advertising, Inc. This can be seen in the petitioner's Exhibit No. 5 admitted into evidence which is a copy of the building permit application as issued on October 31, 1975.

      
      

   8. Pollock commenced the work and Dr. Brickman paid Pollock directly for the work that was being done. The parent checks were endorsed and cashed by Pollock. The amount Pollock received totaled $6,797.22.

      
      

   9. Sometime in December, 1975, the owner, Dr. Brickman, became disenchanted with some of the workers whom Pollock had on the job in the sense that those workers had been drinking while on the job. Brickman advised Pollock of this and indicated to Pollock that he did not want those persons on the job without supervision. Nonetheless, the owner continued to advance money to Pollock to pay for the job as contracted for.

      
      

   10. In January, 1976, the Respondent left the job and Brickman was of the impression that the roof on the extension was finished and that there was no problem with the roof, but this impression was wrong because in February, 1976, one of the owner's tenants began to complaint about the roof leaking and those complaints continued until the tenant moved out due to water damage. This caused Brickman to lose moneys in rentals.

       
       

   11. When Brickman spoke with Pollock about the leaking roof, Pollock sent a roofer to the job to see about the problems but Brickman was not satisfied with that roofer and declined to have him make any corrections to the roof job. (Although the Respondent denies the responsibility for the completion of the roofing work on the Brickman project, the testimony clearly reveals that he had accepted that responsibility as a part of the contract.)

       
       

   12. The roofer spoken of, whose name is Montgomery, came to the job in March, 1976.

       
       

   13. Subsequent to Montgomery's visit, problems continued to occur with the roof and the condition of the roof in April, 1976, and the interior of the building may be seen in the Composite Exhibit No. 1 by the Petitioner, which is a series of photos depicting the roof and interior.

       
       

   14. Pollock would not return and complete the job and Dr. Brickman made a complaint to cause administrative charges against the Respondent. This original complaint was dropped and in November, 1977, Pollock called about completing the job which was still unfinished. Brickman agreed to have Pollock cane and complete the job. Pollock did not return to the job as he stated he would do.

       
       

   15. In December, 1978, a representative of the Metropolitan Dade County Building and Zoning Department went to the project and found that the job was closed and found that no framing inspection had been requested by Pollock and completed as required by Metropolitan Dade County Building and Zoning Department Code. Other matters within the job site were found to be deficient. The

       original building permit had expired and the required roofing permit had never been granted. The condition of the project as it existed at the time of the inspection may be found in certain photographs taken by the Building Inspector which may be found as a part of the Petitioner's Composite Exhibit No. 2 admitted into evidence. The problem with permits was subsequently rectified; however, based upon the inspector's evaluation, notices of violations were filed in January, 1979, against the Respondent Pollock.

       
       

   16. The violations spoken to above were for violations of the building and zoning code, particularly Metropolitan Dade County Building and Zoning Department Code No. 305.2, failure to call for inspections between October 31, 1971, and January 4, 1979, and Metropolitan Dade County Building and Zoning Department Code Section No. 304.4(b), failure to construct office alterations according to plans between October 31, 1975, and January 4, 1979. (These provisions are part of the South Florida Building Code which is used by Metropolitan Dade County.)

       
       

   17. The charges were made through a two-count information in Case 79-53600 in the County Court in and for Dade County, Florida. For the former violation, the Respondent was adjudged guilty and received a fine of $750.00 with $25.00 court costs, and for the latter count Pollock was sentenced, with the sentence being suspended from day to day and term to term. This Statement of Charges and Disposition may be found as petitioner' s Composite Exhibit No 3 admitted into evidence, a copy of the Charges, Judgment, Sentence and Order of the Court.

       
       

   18. The Respondent, Pollock, was also charged by Metropolitan Dade County with a violation of the Code of Metro Dade, Chapter 10, Section 10-22 (b), abandonment of the construction project without legal authority. (The disposition of that charge is unknown to the Hearing Officer, in that it was not presented as a matter of proof in the course of the hearing and the facts of the existence of such charge came in by a stipulation of fact between the parties to this action.)

       
       

   19. The Respondent returned to the job in January, 1979, and on the date of the hearing 95 to 99 percent of the job had been completed. Still remaining to be completed were certain roofing work with metal-to-metal soldering and gravel stops to be concluded and at that time the roof was still leaking.

       
       

   20. In view of the damage to Brickman' s property, a claim was made against the liability insurance required by Subsection 468.106(6), Florida Statutes. This claim was denied by the insurance carrier because their insurance covered Miami Advertising, Inc., only, and that company had no knowledge of the contract or the job. An indication of this denial may be found as Petitioner's Composite Exhibit No. 4 admitted into evidence, which are copies of letters denying coverage. They are addressed to Dr. Brickman and are from Parliament Insurance Company, insurer of Miami Advertising, Inc.

       
       

       CONCLUSIONS OF LAW

       
       

   21. The Division of Administrative Hearings has jurisdiction over the subject matter and the parties to this action.

       
       

   22. Through its Administrative Complaint, the Petitioner has charged the Respondent with violations of Subsections 468.112(2)(a) and (d), Florida Statutes. Those provisions state:

       1. 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 municipality, city, or county thereof.

             (d) Acting in the capacity of a contractor under any certificate or registration issued hereunder except in the name of the certificate holder or registrant as set forth on the issued certificate or registration, or in accordance with the personnel of the certificate holder or registrant as set forth in the application for the certificate or registration, or as later changed as provided in this part.

             
             

   23. Based upon a full consideration of the facts herein, it is concluded as a matter of law that the Respondent by willful and deliberate action did disregard and violate the Metropolitan Dade County Building and Zoning Department Code Sections 304.4(b) and 305.2 enacted from the South Florida Building Code. This action occurred in the course of the Respondent's work in behalf of Thor Brickman. See Subsection 468.112(2)(a), Florida Statutes.

       
       

   24. In addition, the Respondent was acting in the capacity of E. J. Pollock as contractor in his contract with Thor Brickman at a time when his Certified general Contractor's license was placed with Miami Advertising, Inc., the latter organization not being a party to the Brickman-Pollock contract all in violation of Subsection 468.112(2)(d), Florida Statutes.

       
       

   25. For the above-established violations, the Respondent is subject to the penalties found in Section 468.112, Florida Statutes.

RECOMMENDATION

It is recommended that the Respondent, E. J. Pollock, who holds his license as qualifier for Miami Advertising, Inc., License No. CG C004577, be suspended for a period of one (1) year. This recommendation is made with the knowledge of the letters offered in mitigation of the penalty.

DONE AND ENTERED this 26th day of November, 1979, in Tallahassee, Florida.

CHARLES C. ADAMS, Hearing Officer Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301

(904) 488-9675

COPIES FURNISHED:

Barry Sinoff, Esquire Sinoff, Edwards & Alford 2400 Independent Square One Independent Drive

Jacksonville, Florida 32202

H. Adams Weaver, Esquire

310 Okeechobee Boulevard Post Office Box "M"

West Palm Beach, Florida 33402

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

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

FLORIDA CONSTRUCTION INDUSTRY DIVISION OF ADMINISTRATIVE LICENSING BOARD, HEARINGS, DOCKET NO. 79-502

Petitioner,

vs.

E. J. POLLOCK d/b/a MIAMI ADVERTISING, INC., 230 N. E. 107th Street, Miami, Florida 33161,

Respondent,

/

FINAL ORDER OF

FLORIDA CONSTRUCTION INDUSTRY LICENSING BOARD

This cause came before the FLORIDA CONSTRUCTION INDUSTRY LICENSING BOARD at its regular meeting on December 14, 1979.

Respondent was sent the Hearing Officer's findings and recommendations and was given at least ten (10) days to submit written exceptions to the recommended order.

The FLORIDA CONSTRUCTION INDUSTRY LICENSING BOARD on December 14, 1979, by

motion duly made and seconded, adopted the findings of fact of the recommended order which are hereby incorporated by reference in this Final Order and imposed an administrative fine in the sum of Five Hundred Dollars ($500) and a written reprimand. These sanctions are based upon the following considerations: The Dade County building inspector confirmed that the licensee completed the project which was the subject of this proceeding and a final Certificate of Occupancy was issued; that the licensee had previously been adjudicated guilty of violation of Metro Code Section 305.2 in the County Court in and for Dade County, Florida, Case No. 79-53600 and had been ordered to pay a fine in the sum of Seven Hundred Fifty dollars ($750) and Twenty-five Dollars ($25) Court costs.

ORDERED that E. J. Pollock shall pay to the State of Florida, Construction Industry Licensing Board, an administrative fine in the sum of Five Hundred Dollars ($500) and is hereby reprimanded.

Respondent is hereby notified that he has thirty (30) days after the date of this final order to appeal Pursuant to Chapter 120, Florida Statutes, and the Florida Appellate Rules.

DATED this 20th day of February, 1980.

THE FLORIDA CONSTRUCTION INDUSTRY LICENSING BOARD

John Henry Jones, President

Docket for Case No: 79-000502

Orders for Case No: 79-000502