STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

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

)

Petitioner, )

)

vs. ) CASE NO. 81-2057

)

BRUCE ALLES, )

Respondent. )

)

RECOMMENDED ORDER

A hearing was held in the above-captioned matter, after due notice, at Cocoa, Florida, on November 2, 1981, before Thomas C. Oldham, Hearing Officer.

APPEARANCES

For Petitioner: Michael Egan, Esquire

217 South Adams Street Post Office Box 1386

Tallahassee, Florida 32302

For Respondent: Joe Teague Caruso, Esquire

Post Office Box 757

Cocoa Beach, Florida 32931 ISSUE PRESENTED

Whether Respondent's license as a certified general contractor should be suspended or revoked, or the licensee otherwise disciplined, for alleged violations of Chapter 489, Florida Statutes, as set forth in the Administrative Complaint dated July 17, 1981.

This case arises from an administrative complaint filed by the Department of Professional Regulation, seeking to take disciplinary action against Respondent Bruce Alles, a certified general contractor, for alleged derelictions in connection with the collapse of a condominium building at Cocoa Beach, Florida in March, 1981. Although this case was consolidated for hearing with Department of Professional Regulation, Construction Industry Licensing Board v. Lawrence M. Stoner, Case no. 81-1944, the parties announced at the commencement of the hearing that they had elected to hear this case separately.

The parties further announced at the commencement of the hearing that they had entered into an oral stipulation as to legal issues and certain facts. At this time, Petitioner withdrew the matters set forth in Paragraph 13b of the complaint concerning violation of Subsection 489.129(1)(d), Florida Statutes, based on violations of applicable building codes in the construction of the building in question.

The remaining stated grounds for discipline involve alleged violation of Subsection 489.129(1)(j), Florida Statutes, which provides for disciplinary action for failure in any material respect to comply with the provisions of Chapter 489. Paragraph 13a of the Administrative Complaint alleges that Respondent violated that provision under Subsections 489.119(2) and 105(3), F.S., which require a contractor as the qualifying agent for a business organization, to supervise and be responsible for the entire project contracted for, and under Subsection 489.119(5), F.S., which requires the contractor to affix his license number to all of his contracts and bids.

The parties stipulated that the issues to be determined are:

1. Whether the Respondent had a duty to affix his license number to the Harbour Cay contract, and

2. Whether Respondent had a duty to supervise and to be responsible for the construction at the Harbour Cay site.

No witnesses were called by Petitioner at the hearing, nor did it submit any documentary evidence. Respondent testified in his own behalf and submitted the testimony of one other witness.

Proposed recommended orders submitted by the parties have been fully considered, and those portions not adopted herein are considered to be either unnecessary, irrelevant, or unsupported in law or fact.

FINDINGS OF FACT

1. Respondent Bruce G. Alles, is a certified general contractor, license number CGC C014472, and has been so licensed since the summer of 1979. At that time, he became the qualifying agent for Univel, Inc., Melbourne Beach, Florida, a general contracting firm. Prior to Respondent becoming the qualifier for Univel, Inc., one David Boland had been the qualifying agent for the company, and no apparent action was taken by Univel to remove Boland as a qualifier for an undisclosed period of time after Respondent assumed that function. (Pleadings, testimony of Respondent, K. Alles)

   
   

2. The only project of Univel that Respondent supervised from 1979 until subsequent to April, 1981 was the renovation of several buildings called Ocean Landings. During the period of March or April, 1980 until April, 1981, he had no involvement in any of Univel's projects. Since April, 1981 he has pulled permits and supervised some small renovation or alteration projects. (Testimony of Respondent, K. Alles, Stipulation)

   
   

3. For the past three and one-half years, Lawrence M. Stoner, a certified general contractor and qualifying agent for Dynamic Construction Company, Inc. has engaged in joint construction projects with Univel, Inc. In such instances, Stoner obtains the building permits and supervised construction of the projects. At some undisclosed point in time, Kenneth Alles, Vice President of Univel, Inc. consulted with and obtained assurances from legal counsel that, based upon Univel's relationship with Stoner and Dynamic Construction Company, it was unnecessary for Stoner to file a formal application as qualifying agent for Univel. In fact, Alles was of the opinion that at one point Univel had three qualifying agents simultaneously who were Respondent, Stoner, and Boland. (Testimony of K. Alles)

4. At some undisclosed time subsequent to Respondent becoming the qualifying agent for Univel, that firm entered into a construction contract with Palm Harbor West, Inc. to construct a condominium building called Harbour Cay. Stoner supervised the construction of the building. There was an on-site superintendent of construction who was employed by Univel. Stoner and Univel

   co-signed a bank loan agreement for the project. (Testimony of K. Alles)

   
   

5. Respondent was not involved in the Harbour Cay project in any respect. He did not affix his license number to the contract nor did he supervise of have any connection with the project. (Testimony of K. Alles, Stipulation)

   
   

6. On March 27, 1981, the Harbour Cay building collapsed causing multiple deaths and injuries. (Testimony of K. Alles, pleadings)

   
   

   CONCLUSIONS OF LAW

   
   

7. Petitioner seeks to take disciplinary action against Respondent under Subsection 489.129(1)(j), Florida Statutes, which authorizes such action for:

   
   

   (j) Failure in any material respect to comply with the provisions of this act.

   
   

   The alleged bases for the above-stated ground for discipline are that Respondent, as the qualifying agent for Univel, Inc., failed to supervise and be responsible for the entire project as required by Subsections 489.119(2) and 489.105(3), F.S., and that he did not affix his license number to the Harbour Cay contract, as required by Subsection 489.119(5), Florida Statutes. The stipulated issues to be determined are whether or not Respondent had a duty to so affix his license number to the Harbour Cay contract, and whether he had a duty to supervise and be responsible for the construction of the project.

   
   

8. The statutory provisions cited in the complaint which purport to require the qualifying contractor to supervise and be responsible for a project, deal with a definition section and with applications to become a qualifying agent. Subsection 489.105(3) defines "contractor" in part as the "person who is qualified for and responsible for the entire project contract for". Subsection 489.119(2), F.S. requires that a person proposing to engage in contracting as a corporation apply through a qualifying agent, and that such application must show:

   
   

   . . . the qualifying agent is legally qualified to act for the business organization in all matters connected with its contracting business, and that he has authority to supervise construction undertaken by such business organization.

   
   

   Although the above two statutory provisions contemplate that a contractor will assume supervisory responsibilities for a construction project, neither provision specifically requires that a qualifying agent supervise and be responsible for a project of the qualifying firm. Further, there is no provision in Chapter 489 which delineates any specific duties and responsibilities of a qualifying agent in carrying out a construction project. Again, the mere definition of "qualifying agent" in Section 489.105(4), F.S. as "a person who possesses the requisite skill, knowledge, and experience to supervise, direct, manage, and control the contracting activities of the

   business entity with which he is connected..." does not by its terms impose any duties. In the absence of such specific requirement in Chapter 489, disciplinary action which is penal in nature cannot be imposed under Section 489.129(l)(j), F.S. Although it can be inferred from Chapter 489 that a qualifying contractor has general supervisory responsibility over a construction project, the remedy for his failure to properly supervise would necessarily have to be measured in terms of his culpability under existing statutes. An example of a ground for such a failure to supervise might be found in Section 489.129(1)(m), F.S., which provides that a licensee may be disciplined upon proof of gross negligence, incompetency, or misconduct in the practice of contracting. However, this ground for discipline was not alleged by Petitioner and is therefore unavailable for application in this proceeding.

   
   

9. If there had been a clear statutory duty for Respondent to supervise the Harbour Cay project, the particular facts of this case would establish his responsibility. Although the evidence presented at the hearing as to the relationship between Univel, Inc. and Stoner (Dynamic Construction, Inc.) was scant, it was shown that the contract in question was between Univel and Palm Harbor West, Inc. In view of this fact, it stands to reason that Univel, Inc. was solely answerable to Palm Harbor West for the performance of the contractual obligations. Since Univel, Inc. was therefore the general contractor for the project, it would have been incumbent upon Respondent as its qualifying agent to assume ultimate responsibility for the project. This is not to say that Stoner could not have become a qualifying agent for Univel, Inc. if such had been desire by those parties. Subsection 489.119(6), F.S. states that a qualifying agent may qualify multiple firms, but if he desires to qualify more than two business entities, he must receive approval of the petitioner board. Although Section 489.119 does not deal specifically with the converse situation of a qualified firm having more than one qualifying agent, such a situation is not expressly precluded, and it is reasonable to assume that a large contractor with multiple projects would require several qualifiers in order to adequately conduct its business.

   
   

10. Subsection 489.119(5), F.S., provides in part that:

    
    

    (5) Each registered or certified contractor shall affix the number of his registration or certification to all his contracts and bids.

    
    

    Respondent was obliged to affix his certification number to the Univel contract for the Harbour Cay project because he was its qualifying agent. His failure to do so therefore constitutes a technical violation of the above statutory provision.

    
    

11. It having been determined that the only established ground for discipline against Respondent is failure to affix his signature to the Harbour Cay contract, and in consideration of all the circumstances surrounding his failure to do so, including the fact that he did not "pull" the building permit for the project or participate in work thereon in any manner, it is believed that disciplinary action in the form of a written public reprimand would be a sufficient penalty and would serve to insure that Respondent's future actions are in strict conformity with applicable law and regulation.

RECOMMENDATION

That the Construction Industry Licensing Board administer a written public reprimand to Respondent Bruce Alles for violation of Subsection 489.119(5), F.S., pursuant to Subsection 489.129(j), F.S.

DONE and ENTERED this 23rd day of December, 1981, in Tallahassee, Florida.

THOMAS C. OLDHAM

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 23rd day of December, 1981.

COPIES FURNISHED:

Michael Egan, Esquire

217 South Adams Street Post Office Box 1386

Tallahassee, Florida 32302

Joe Teague Caruso, Esquire Post Office Box 757

Cocoa Beach, Florida 32931

James K. Kinnan Executive Director

Construction Industry Licensing Board

Post Office Box 2 Jacksonville, Florida 32202

Docket for Case No: 81-002057

Orders for Case No: 81-002057