STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

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

)

Petitioner, )

)

vs. ) CASE NO. 80-2079

) (0003222)

NEIL WAYNE SMITH, )

)

Respondent. )

)

RECOMMENDED ORDER

PURSUANT TO NOTICE, the Division of Administrative hearings, by its duly designated Hearing Officer, WILLIAM R. THOMAS, held a hearing in this case on May 7, 1981, in Daytona Beach, Florida.

APPEARANCES

For Petitioner: Michael Egan, Esquire

Post Office Box 1386 Tallahassee, Florida 32302

For Respondent: Neil Wayne Smith, in pro per

14 Rain Tree Drive

Port Orange, Florida 32019

By its Administrative Complaint, the Petitioner alleges that the Respondent violated the provisions of Section 489.113(2) and (5), Florida Statutes, by engaging in the contracting business in Florida while not licensed, and by attempting to use the nontransferable certificate of another person; and that he violated Section 489.129(1)(g), Florida Statutes, by acting in the capacity of a contractor under a certificate which was not issued in the name of that contractor. In support of its Complaint, the Petitioner presented the testimony of one of its investigators, the former partner of the Respondent, and the manager of a heating and air conditioning firm which worked as a subcontractor on the project that is involved in this proceeding. Nine exhibits were redivide in evidence. The Respondent testified in his own behalf, but presented no other witnesses or exhibits.

FINDINGS OF FACT

1. The Respondent, Neil Wayne Smith, is a certified general contractor holding license number CG C003076. This license was suspended on March 4, 1977, for three years, and was reinstated in March of 1980. On March 21, 1980, the Respondent became the qualifier for WWRS Enterprises, Inc.

   
   

2. This corporation had been formed in 1978 by the Respondent and his partner, William Rymers, for the purpose of engaging in the general contracting

   business. Mr. Rymers became president of WWRS Enterprises, Inc., and the Respondent acted as secretary, supervisor of construction, and manager of financial matters. Although the Respondent did not hold any direct stock ownership, his share of the corporate stock was registered in his wife's name.

   
   

3. The Respondent knew that under the law WWRS Enterprises, Inc., needed to have a qualifying agent registered with the Construction Industry Licensing Board, and the Respondent and his partner discussed this subject. Since the Respondent's license was under suspension during 1978 and 1979, it was proposed that a Max Dunaway would become the qualifying agent for WWRS Enterprises, Inc., but the necessary paperwork to register him as qualifying agent for the company was never filed. Thus, until March of 1980, the company was not qualified to engage in general contracting.

   
   

4. In November, 1979, the Respondent negotiated a contract on behalf of WWRS Enterprises, Inc., with Wilhelm Hackenberg and his wife, for the construction of an addition to their home in Ormond Beach, Florida. Since the Respondent's license was suspended, Max Dunaway pulled the building permit for the company, but the job was supervised by the Respondent, not Max Dunaway. WWRS Enterprises, Inc., was the contracting company to which at least one subcontractor submitted invoices, Mr. Dunaway's company, Southwide Builders, Inc., was not involved in this transaction. At least four construction jobs were performed by WWRS Enterprises, Inc., but only the Hackenberg job was identified by a precise time-frame during which the company had no qualifying agent.

   
   

5. The Respondent does not challenge many of these facts. Instead, he contends that he never held any stock in WWRS Enterprises, Inc., and was only a managing employee of the company, not responsible for its policies. These contentions, however, are not consistent with the weight of the credible evidence, and have been discounted.

   
   

   CONCLUSIONS OF LAW

   
   

6. Section 489.119(2), Florida Statutes, requires corporations proposing to engage in contracting to apply for a certificate through a qualifying agent. Section 489.119(3) (a), Florida Statutes, requires the qualifying agent to be certified or registered. This section further prohibits a corporate entity from engaging in contracting until a qualifying agent is employed.

   
   

7. Only those persons who hold licenses can engage in the business of contracting in this State. Section 489.113(2), Florida Statutes. The Construction Industry Licensing Hoard may revoke or suspend the certificate or registration of a contractor, or impose a fine not exceeding $1,000, if it finds that the contractor is guilty of the following: (1) acting in the capacity of a contractor under any certificate except one issued in the name of the registrant [Section 489.129(1)(g), Florida Statutes], (2) failure in any material respect to comply with the provisions of the act [Section 489.129(1)(j), Florida Statutes], and (3) aiding or abetting any uncertified or unregistered person to evade any provision of the act [Section 489.129(1)(e), Florida Statutes].

   
   

8. Under the evidence presented in this case, the Respondent was engaging in the business of contracting while his license was under suspension, in violation of Section 489.113 (2), Florida Statutes. In addition, the Respondent has violated Section 489.129(1)(e), Florida Statutes, in that his conduct aided or abetted the unlicensed corporation, "WWRS Enterprises, Inc., to evade the prohibition against contracting without a license. Finally, the Respondent

violated Section 489.129(1)(g), Florida Statutes, by acting in the capacity of a contractor under the certificate of Max Dunaway, who was qualifying agent for Southwide Builders, Inc., and not for WWRS Enterprises, Inc. In summary, the evidence reflects the Respondent's total disregard of the licensing law, and his unwillingness to refrain from contracting during the period of time his license was under suspension.

RECOMMENDATION

Based upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED that license number CG C003076 held by the Respondent, Neil

Wayne Smith, be revoked.

THIS RECOMMENDED ORDER entered on this 21 day of May, 1981.

WILLIAM B. THOMAS

Hearing Officer

Division of Administrative Hearings The Oakland Building

2009 Apalachee Parkway

Tallahassee, Florida 32301

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 21st day of May, 1981.

COPIES FURNISHED:

Michael Egan, Esquire May, 1981. Post Office Box 1386

Tallahassee, Florida 32302

Neil Wayne Smith

14 Rain Tree Drive

Port Orange, Florida 32019

Docket for Case No: 80-002079

Orders for Case No: 80-002079