STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

FLORIDA CONSTRUCTION ) INDUSTRY LICENSING BOARD, )

)

Petitioner, )

)

vs. ) CASE NO. 79-956

)

RICHARD A. VALDES, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, R. L. Caleen, Jr., held a formal hearing in this case on February, 15, 1980, in Jacksonville, Florida.

APPEARANCES

For Petitioner: Barry Sinoff, Esquire

2400 Independent Square

Jacksonville, Florida 32202,

For Respondent: Richard A. Valdes, pro se

9375 S. W. 83rd Street Miami, Florida 33178.

ISSUE PRESENTED

Whether Respondent, a certified general contractor, is guilty of pulling permits for construction projects not supervised by Respondent, and, if so, the appropriate disciplinary action which should be taken by the Board.

CONCLUSION AND RECOMMENDATION

Guilty, as charged. Respondent's certified general contractor's license should be suspended until such time as full restitution is made to the persons damaged by his actions.

BACKGROUND

By Administrative Complaint filed April 18, 1979, the Florida Construction Industry Licensing Board ("Board") seeks to (1) revoke the general contractor's license of RICHARD A. VALDES ("Respondent") until evidence of restitution is furnished the Board, and (2) impose an administrative fine of $500.00. As grounds therefore, the Board alleges that Respondent unlawfully used his license to secure building permits on two projects which were undertaken by an unlicensed contractor (San Pedro Construction Inc.) who was not supervised by Respondent.

On April 25, 1979, Respondent disputed the factual allegations contained in the Board's Administrative Complaint and requested a formal hearing pursuant to Section 120.57(1), Florida Statutes (1979). Thereafter, the Board requested the Division of Administrative Hearings to assign a Hearing Officer to conduct a formal hearing in this case.

Final hearing was initially scheduled for August 15, 1979. Due to Respondent's absence from the country on business, the hearing was continued, and subsequently rescheduled for February 15, 1980.

At final hearing, the Board called Charles Kozak, James L. Shaw, and Patricia C. Simon as its witnesses, and offered Petitioner's Exhibit Nos. 1 through 6, inclusive, each of which was received into evidence. Respondent testified on his own behalf, and presented no other evidence.

At mid-proceeding, the parties stipulated and agreed that the allegations contained in paragraphs 1.(a) [as modified], (b), (c), (d) [as modified], (g), (h), (i), (j), (k), and (1) were true, and uncontested.

Upon consideration of the evidence presented at hearing, the following findings of fact are determined:

FINDINGS OF FACT

1. At all times material hereto, Respondent was the holder of Certified General Contractor's License No. CG C005204 issued by the Board. Although this license was active at the time the Administrative Complaint was filed, Respondent has placed it on an inactive status until June 30, 1981. (Stipulation, Testimony of Respondent)

   
   

   As to Amiguet Construction Project

   
   

2. During 1976, Jose Amiguet entered into a contract with San Pedro Construction Inc. for the construction of an addition to his existing residence located at 1409 Granada Boulevard, Coral Gables, Florida. (Stipulation, Petitioner's Exhibit 1)

   
   

3. Since San Pedro Construction Inc. was not properly licensed as a building contractor, it was not qualified to apply for and obtain a Coral Gables building permit to undertake this residential addition. Therefore, on January 12, 1977, pursuant to an agreement with Jose San Pedro, representative of San Pedro Construction Inc., the Respondent applied and obtained the required Coral Gables building permit under his on name. (Stipulation, Testimony of Respondent, Charles Kozak, Petitioner's Exhibit 1)

   
   

4. The Respondent did not participate in, manage, or supervise, in any manner, the construction of the Amiguet residential addition by San Pedro Construction Inc. Jose Amiguet neither knew the Respondent, nor had any dealings with him during the construction work. (Stipulation, Testimony of Respondent)

   
   

5. Final inspection of the Amiguet construction project has not been conducted by the Coral Gables building inspection department since the required documentation concerning sidewalk improvements and subcontractors used has not yet been submitted. The actual construction work has, however, been completed, to the satisfaction of Jose Amiguet. (Testimony of Charles Kozak, Respondent)

6. Respondent made an effort to assist Jose Amiguet in obtaining the final inspection and clearance by the city building inspection department. However, since Respondent did not supervise the subcontractors' work, he cannot truthfully complete the required documents. He has, therefore, offered to (1) pay for the additional costs associated with obtaining the necessary final inspection, and (2) transfer to Jose Amiguet the right to receive, after final inspection, the refund of the contractor's performance bond in the amount of approximately $400-$500. (Testimony of Respondent)

   
   

   As to the Shaw Construction Project

   
   

7. During July, 1977, and on February 8, 1978, James L. Shaw entered into separate contracts with San Pedro Construction Inc. for the construction of residential improvements at 836 Obispo Avenue, Coral Gables, Florida. The final contract was in the amount of $16,700.00. (Stipulation, Testimony of Respondent, James L. Shaw, Petitioner's Exhibit 4)

   
   

8. Since San Pedro Construction Inc. was an unlicensed contractor, Respondent, on November 15, 1977, pursuant to an agreement with that company, applied for and obtained the required Coral Gables building permit. (Stipulation, Testimony of Respondent, James L. Shaw, Petitioner's Exhibit 4)

   
   

9. The Respondent did not participate in, manage, or supervise in any manner the construction of the Shaw residential improvements by San Pedro Construction Inc. James Shaw neither knew Respondent, nor had any dealings with him during the construction work. (Stipulation, Testimony of Respondent)

   
   

10. On or about April, 1978, the lending institution for the Shaw project, and James Shaw stopped making construction payments to San Pedro Construction Inc., due to its failure to proceed on and abandonment of the project. (Testimony of James Shaw, Charles Kozak)

    
    

11. On June 20, 1978, James Shaw obtained an "owner-builder" permit from the City of Coral Gables and incurred the following costs in order to complete the construction project as originally planned: $12,000 for labor and materials, and $625.00 for architectural services. Inasmuch as approximately,

    $10,128.00 had earlier been paid to San Pedro Construction Inc. for the construction project, the total cost of the project to James Shaw was approximately $22,753.00-$6,053.00 in excess of the original contract price. (Testimony of James Shaw and Respondent)

    
    

12. San Pedro Construction Inc. is no longer in business, and the whereabouts of its owner, Jose San Pedro, is unknown. (Testimony of Respondent)

    
    

13. As with the Amiguet construction project, final inspection of the Shaw project cannot be conducted until missing documentation relative to sidewalk improvements and subcontractors involved is supplied. In an effort to assist James Shaw, the Respondent has offered to transfer to Shaw the right to receive, after final inspection, the refund of the contractor's performance bond in the amount of approximately $400-$500. (Testimony of Charles Kozak and Respondent)

    
    

14. At all times material hereto, the Respondent was aware that it was unlawful, under both state law and the Code of Metropolitan Dade County, to aide an unlicensed contractor in evading the contractor licensing law, and to use one's license to pull permits for projects not supervised by the licensee. (Stipulation, Testimony of Respondent, Petitioner's Exhibit 1)

15. The Metro Dade Construction Trades Board heard the complaint against the Respondent and found prima facie evidence and probable cause to refer the matter to the Florida Construction Industry Licensing Board (Stipulation)

    
    

16. Notwithstanding the evidence presented, the Administrative Complaint and the Board's counsel at hearing limited the amount sought for restitution purposes to $5,300.00, provided both the performance bonds are refunded to the benefit of Jose Amiguet and James Shaw. (Administrative Complaint, statement of Board's Counsel)

    
    

17. Respondent regrets having taken the actions complained of in the Board's Administrative Complaint, and now more fully understands the resulting burdens which have been placed on Jose Amiguet and James Shaw. (Testimony of Respondent)

    
    

    CONCLUSIONS OF LAW

    
    

18. The Division of Administrative Hearings has jurisdiction over the subject matter and the parties to this action. Section 120.57(1), Florida Statutes.

    
    

19. Statutes which provide for revocation of licenses are penal in nature, and must be strictly construed and followed. Bach v. State Bd. of Dentistry,

    378 So.2d 34 (Fla. 1st DCA 1980). Section 468.112, Florida Statutes (1970), the law under which the Board's Administrative Complaint was filed,, was repealed and replaced on July 1, 1979, by enactment of Chapter 79-200, Laws of Florida (1979). Accordingly, the law which now governs the Board's final action in this case is contained in Section 489.129(1), Florida Statutes (1979), which allows disciplinary action if a contractor is found guilty of any of the following acts:

    
    

    1. Willful or deliberate disregard and violation of the applicable building codes or laws of the state or of any municipal- ities or counties thereof. (Emphasis supplied)

       
       

    2. Aiding or abetting any uncertified or unregistered person to evade any provision of this act.

       
       

    3. Knowingly combining or conspiring

    with an uncertified or unregistered person by allowing one's certificate or regis- tration to be used by any uncertified

    or unregistered person with intent to evade the provisions of this part. When a certified holder or registrant allows his certificate or registration to he 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.

    Equivalent or substantially identical grounds for disciplining a contractor were in effect at the time of Respondent's alleged unlawful actions. Section 468.112(2)(a), (b), and (c) Florida Statutes (1977).

    
    

20. Chapter 10, Code of Metropolitan Dade County, a county ordinance, prohibits a contractor from:

    
    

    22(h)(1) Aiding or abetting any person not holding a certificate of competency, to evade or violate any of the provisions of this chapter; or

    * * *

    (3) Obtaining a permit for any work in which the certificate holder does not actively supervise, direct, and control the construction or installation covered by such permit; ...

    
    

21. By the actions described in the above findings of fact, the Respondent is guilty of violating Section 489.129 (e) and (f), supra, and Chapter 10, Section 22(h)(1) and (3), Metro Dade Code. By virtue of his violation of the Metro Dade Code, Respondent is also guilty of violating Section 489.129(d), supra.

    
    

22. Pursuant to Section 489.129(1) supra, the Board has the authority to revoke or suspend the Respondent's Certified General Contractor's license for his commission of the violations indicated above. In the alternative, the Board may impose an administrative fine up to $500.00 -- the maximum amount sought by its Administrative Complaint.

    
    

23. By its Administrative Complaint, the Board seeks to, inter alia, revoke the Respondent's license and allow reinstatement only upon submission of evidence of restitution. Suspension of the Respondent's license, until such time as restitution is made, is a more appropriate action than revocation based on the following:

    
    

    1. When a license is revoked, it becomes a nullity. Absent specific statutory authority allowing the Board to reinstate or restore a license which it has revoked, the person whose license is revoked must later be treated as if no license has ever been issued him. Keating

       v. State, 167 So.2d 46 (Fla. 1st DCA 1964). Also See AGO-059-3 (1959). Here, the Board does not assert that the Respondent is technically unqualified to engage in general contracting. Revoca- tion would require him to reapply

       for and retake the requisite examina- tion for no apparent purpose.

       
       

    2. Suspension of a license, on the other hand, is a temporary with- drawal of a license, and contemplates

       reinstatement upon satisfaction of the conditions prescribed for removal of the suspension. cf. definition

       of "suspend", Funk & Wagnalls Stan- dard Dictionary of English Language (1950)

       
       

    3. The Board, has, in prior cases involving similar offenses, suspended the offending contractor's license. See Board Final Order in cases

Florida Construction Industry Licensing Board v. George C. Moyant, Case No.

76-1978, Florida Construction Industry Licensing Board v. John R. Andersen, Case No. 77-306, Florida Construc-

tion Industry Licensing Board v. William

J. Lanzetta, Case No. 78-1268

RECOMMENDED ORDER

Based upon the foregoing Findings of Fact, and Conclusions of Law, it is RECOMMENDED that the (certified General Contractor's license of RICHARD A.

VALDES, CG C005204, be suspended until such time as the Respondent presents to

the Board evidence of restitution consisting of (1) payment to James L. Shaw in the amount of $5,300.00, and (2) refund of the two contractor's performance bonds to the benefit of Jose Amiguet and James L. Shaw.

DONE and ENTERED this 11th day of March, 1980, in Tallahassee, Florida.

COPIES FURNISHED:

Barry S. Sinoff, Esquire 2400 Independent Square One Independent Drive

Jacksonville, Florida 32202

Mr. Richard A. Valdes 9375 SW 83rd Street Miami, Florida 33178

R. L. CALEEN, JR. Hearing Officer

Division of Administrative Hearings Room 101 Collins Building Tallahassee, Florida 32301

(904) 488-9675

Docket for Case No: 79-000956

Orders for Case No: 79-000956