STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

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

)

Petitioner, )

)

vs. ) CASE NO. 81-1925

)

DAVID H. HAMILTON, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a hearing was held before Charles C. Adams, a Hearing Officer with the Division of Administrative Hearings. This hearing was conducted in Room 155, Osceola County Courthouse, 17 South Vernon Avenue, Kissimmee, Florida, on October 15, 1981.

APPEARANCES

For Petitioner: Drucilla E. Bell, Esquire

Assistant General Counsel

Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32301

For Respondent: David H. Hamilton, pro se

Post Office Box 1723 Kissimmee, Florida 32741

ISSUE

The issues presented in this case concern certain allegations made by the Petitioner against the Respondent through an Administrative Complaint. In particular, it is alleged that on or about April 23, 1980, the Respondent's contractor's license issued by the Petitioner was suspended and subsequent to that time, the Respondent continued to perform contracting services through a company, David H. Hamilton, Inc., a corporation which was not properly qualified by the Petitioner to provide contracting services. It is further alleged by the Petitioner that the Respondent obtained building permits Nos. S2740-80B 1/ and 3214-80B from the Osceola County Building Department with the use of another contractor's license, namely: Louie S. Winchester, license #RR003839. For the reason of these facts, the Petitioner alleges that the Respondent has violated Subsection 489.127(1)(e), Florida Statutes, in that he attempted to use a suspended registration. It is further alleged, based upon the facts as reported in this Issues statement, that the Respondent has violated Subsection 489.129(1)(g), Florida Statutes, by acting in a capacity as a contractor under a certificate of registration not in his name. Finally, it is alleged, based upon

the facts as reported hereinabove, that the Respondent has violated Subsection 489.129(1)(j), Florida Statutes, by failing to comply with Subsection 489.119(2), Florida Statutes, by not properly qualifying a corporation under which he performed contracting services.

FINDINGS OF FACT

1. The case presented concerns license disciplinary action by the Petitioner, State of Florida, Department of Professional Regulation, Florida Construction Industry Licensing Board, against the Respondent, David H. Hamilton, who holds a residential contractor's license issued by the Petitioner, #RR0014037. The prosecution of this action is through the offices of the Department of Professional Regulation and the outcome of the matter could lead to the revocation, suspension or other disciplinary action against the Respondent, in keeping with the provisions of Chapter 489, Florida Statutes. This case was presented before the Division of Administrative Hearings following a decision on the part of the Respondent to request a formal hearing pursuant to Subsection 120.57(1), Florida Statutes.

   
   

2. The facts reveal that a Final Order of the Florida Construction Industry Licensing Board was issued on April 23, 1980, and this order established disciplinary action against the current license of David H. Hamilton. (A copy of this Final Order may be found as a part of the record in this proceeding and official recognition of that Final Order is made by the Recommended Order process.) This Final Order was entered after review of a Recommended Order of a Division of Administrative Hearings' Hearing Officer. By the terms of the Final Order, Hamilton's license was suspended "until such time as his Lake County Certificate of Competency is reinstated by the Lake County Board of Examiners." This contingency referred to the fact that the Respondent had his Lake County Certificate of Competency Card removed prior to the entry of the April 23, 1980, order of the Construction Industry Licensing Board.

   
   

3. On September 2, 1980, at a time when the Respondent's residential contractor's license was under suspension by the State of Florida, the Respondent through a corporation applied to the Osceola County Building Department for a building permit to construct a residence in Osceola County, Florida. This permit number was #2740-80B. The permit was issued on September 4, 1980, and was granted in the name of David Hamilton, Inc., a corporation in which the Respondent was a principal. To obtain the permit in the sense of an effort to meet the requirements that the permit be applied for by a licensed Florida contractor, the Respondent used the registered residential contractor's license of one Louie Stevens Winchester who held license #RR003839 issued by the Florida Construction Industry Licensing Board. On the occasion of the issuance of the permit by Osceola County, Winchester was an officer of David Hamilton, Inc. Through the action of "pulling" this permit and the utilization of the permit in his construction of the residence, the Respondent was acting in the capacity of contractor under Winchester's license and the offices of the corporation, as opposed to the Respondent's suspended license. Prior to the request for permit, neither Hamilton nor Winchester had attempted to properly qualify David Hamilton, Inc., as a contracting corporation with the Florida Construction Industry Licensing Board. In this case, to properly qualify the corporation, it would have entailed the use of Winchester as the qualifying agent, in view of the fact that Winchester still held a valid contractor's license from the Florida Construction Industry Licensing Board. No effort was made to qualify David Hamilton, Inc., in its own right, through the agency of Winchester, until some time shortly beyond December 1, 1980.

4. On October 28, 1980, the Respondent in his individual capacity, that is to say unconnected with his business pursuits as David Hamilton, Inc., went to the Osceola Building Department and applied for the issuance of a building permit for a home remodeling project for a customer of his. The permit in question on this occasion was #3214-80B. That permit was issued on October 29, 1930, and was used by the Respondent in his building project. An official in the Osceola County Building Department had checked with an employee in the Lake County Building Department on the status of Hamilton's rights to be employed as a building contractor in Lake County, Florida, and was informed that Hamilton's status in Lake County was acceptable. Based upon these representations, the Osceola County employee issued the permit discussed in this paragraph to Hamilton.

   
   

5. The Osceola County employee also asked that the Lake County employee formally confirm Hamilton's status. The correspondence in response to Osceola County employee, John Pate, Assistant Building Director, as issued by an official in Lake County, one Herb Dudgeon, may be found as Petitioner's Exhibit No. 3. This letter was received by Pate after the permit was issued. That correspondence indicates that Hamilton had been given the privilege of reinstating his Lake County Competence Card, contingent upon "providing bond, insurances, occupational license, etc.," which had not been received by Lake County as of the date of the correspondence. The correspondence goes on to mention that the State, meaning the Florida Construction Industry Licensing Board, was waiting for confirmation of the completion of the contingencies referred to.

   
   

6. Subsequent to this correspondence, the Respondent having completed all the necessary steps for reinstatement of the Lake County Competency Card, had his license suspension removed and was reinstated by the Florida Construction Industry Licensing Board, as verified by that body.

   
   

   CONCLUSIONS OF LAW

   
   

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

   
   

8. Official recognition is made of the Final Order of the Florida Construction Industry Licensing Board dated April 23, 1980.

   
   

9. The Administrative Complaint placed against the Respondent is based upon a number of alleged violations which were set out in the course of the Issues statement of this Recommended Order.

   
   

10. The first of those allegations refers to a violation of Subsection 489.127(1)(e), Florida Statutes (1980), which prohibits the use of a certificate or registration which has been suspended or revoked. The terms certificate or registration also mean license. Any person who has violated that provision of law is subject to criminal court action leading to a conclusion that a first degree misdemeanor offense has been committed. See Subsection 489.127(2), Florida Statutes (1980). This violation does not refer to action under administrative prosecution, and although Respondent, by the events of October 28 and 29, 1980, referring to the issuance of the building permit #3214-80B and the utilization of that permit, may arguably be said to have utilized his suspended license #RR0012037, he may only be disciplined for such violation in keeping with Subsection 489.129(1)(b), Florida Statutes (1979). This most recent provision allows the agency to discipline a license holder by revocation, suspension, fine, probation, reprimand or censure if he has been convicted or

    found guilty, without regard for the adjudication, of a crime in any jurisdiction in a circumstance where that conviction or finding of guilt relates to the practice of contracting or the ability to practice the contracting profession.

    
    

11. To utilize the above stated basis for discipline, it is necessary for the criminal court system to have made a pronouncement as to a conviction or finding of guilt related to an alleged violation of Subsection 489.127(1)(e), Florida Statutes (1980). The forum provided by this administrative prosecution is not one in which a factual determination utilizing an administrative prosecutorial standard may be used in lieu of the criminal law system. The Petitioner having failed to establish a determination of conviction or guilt through the criminal law system in the State of Florida, it is concluded as a matter of law that the Respondent has not violated Subsection 489.127(1)(e), Florida Statutes (1980), and is not subject to the penalties set forth in Subsection 489.129(1)(b), Florida Statutes (1979).

    
    

12. It is next contended that the Respondent acted in violation of Subsection 489.129(1)(g), Florida Statutes (1979) , by acting in a capacity of contractor under a certificate of registration not in his name. That provision prohibits acting in the capacity of contractor under a certificate of registration, other than in the name of the certificate or registration holder or related to personnel of the certificate holder or registrant or in some other way provided by Chapter 489, Florida Statutes. In the September 2, 1980, attainment of the building permit #S2740-80B, the Respondent utilized the Winchester license to "pull" the permit in the name of David Hamilton, Inc., a corporation not registered with the Florida Construction Industry Licensing Board and through the offices of that corporation and on authority of Winchester's license undertook contracting services in keeping with the terms of the permit. By this action he violated Subsection 489.129(1)(g), Florida Statutes (1979), in view of the fact that the registration he was operating under was not his own and he was not acting as a person who was part of the personnel of the certificate holder or operating on any other basis authorized by the overall regulatory chapter. For this violation, the Respondent is subject to the disciplinary actions set forth in Subsection 489.129(1), Florida Statutes (1979).

    
    

13. Finally, it is contended that the Respondent has violated Subsection 489.129(1)(j), Florida Statutes (1979), for failure to comply with Subsection 489.119(2), Florida Statutes (1979), by not properly qualifying a corporation under which he performed contracting services. The former provision as alluded to in this paragraph makes it a violation to fail to comply in any material respects with the provisions of Chapter 489, Florida Statutes (1979), and the provision Subsection 489.119(2), Florida Statutes (1979), would require that David Hamilton, Inc., to operate as a contracting entity must obtain a license (registration or certificate) for that corporation through an application process, to include the sponsorship of a qualifying agent. That qualifying agent must be certified or registered under the same regulatory provisions as established for the corporation. In the September 2, 1980, attainment of the

permit #S2740-80B and his contracting services performed under that permit issued in the name David Hamilton, Inc., Respondent was operating through the corporate entity at a time when that corporation had not been certified or registered by the Florida Construction Industry Licensing Board and having failed to qualify the corporation in keeping with the terms set forth in Subsection 489.119(2), Florida Statutes (1979), was in violation of that provision Subsection 489.129(1)(j), Florida Statutes (1979), related to failure to comply in a material respect with a provision of Chapter 489, Florida Statutes (1979) and is therefore, subject to the penalties set forth in Subsection 489.129(1), Florida Statutes (1979).

RECOMMENDATION

Based upon a full consideration of the findings of fact and conclusions of law reached herein, it is

RECOMMENDED:

That the Florida Construction Industry Licensing Board issue a Final Order which absolves the Respondent of any responsibility for a violation of Subsection 489.127(1)(e), Florida Statutes (1980); that finds the Respondent in violation of Subsection 489.129(1)(g), Florida Statutes (1979), and imposes a penalty of a 60-day suspension; and that finds the Respondent in violation of Subsection 489.129(1)(j), Florida Statutes (1979), and imposes a suspension of

60 days to run concurrently with the other suspension in this paragraph of recommendation. 2/

DONE and ENTERED this 13th day of November, 1981, in Tallahassee, Florida.

CHARLES C. ADAMS, 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 13th day of November, 1981.

ENDNOTES

1/ The original Administrative Complaint had alleged the permit as being No. S2740-80F, which was amended in the course of the hearing to set forth the number as reported in the Issues statement above.

2/ The Petitioner, in the person of counsel, has offered proposed findings of fact, conclusions of law, and a recommended disposition in this action. These matters have been reviewed prior to the entry of this Recommended Order. To the extent that the matters are consistent with the Recommended Order, they have been utilized. To the extent that the matters are inconsistent with this Recommended Order, they are hereby rejected.

COPIES FURNISHED:

Drucilla E. Bell, Esquire Assistant General Counsel Department of Professional

Regulation

130 North Monroe Street Tallahassee, Florida 32301

David H. Hamilton Post Office Box 1723

Kissimmee, Florida 32741

Docket for Case No: 81-001925

Orders for Case No: 81-001925