STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

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

)

Petitioner, )

vs. ) CASE NO. 81-3043

)

HARRY TINKLER, )

)

Respondent. )

)

RECOMMENDED ORDER

This matter came on for hearing in St. Petersburg, Florida, before the Division of Administrative Hearings by its duly designated Hearing Officer, Robert T. Benton, II, on April 9, 1982. The parties were represented by counsel:

APPEARANCES

For Petitioner: Michael Egan, Esquire

217 South Adams Street Tallahassee, Florida 32301

For Respondent: Gerald Nelson, Esquire

4950 West Kennedy

Tampa, Florida 33609

By administrative complaint filed October 30, 1981, petitioner alleged, in count one, that "[o]n or about May 1, 1979, Mr. and Mrs. Willard L. Marks entered into a contract with Aquapool Construction and Engineering of Tampa, Inc. [Aquapool] to construct a pool for $7600"; that Aquapool was paid in full; that "[o]n or about June 7, 1979, Mr. Henry J. Tinkler a/k/a Hank Tinkler obtained a building permit number 6648C for said project" and thereby "violated Section 468.112(2)(b), Florida Statutes (Supp. 1978)" by aiding and abetting an unregistered person to evade and "also violated Section 468.112(2)(c), F.S. (Supp. 1978)" by "conspiring with an unregistered person allowing that person's certificate to be used with the intent to evade the "construction industry licensing law, all in violation of "Section 489.129(1)(e) and (f), F.S. (1979)." In count two, the administrative complaint alleges that respondent, in connection with the same job, "has violated Section 468.112(2)(d), F.S. (Supp.

1978) by acting in the capacity of a contractor in a name other than the one in which he is licensed" and "also violated Section 468.112(2)(g), F.S. (Supp.

1978) by failing to comply in a material respect with Section 468.107(6), F.S. (Supp. 1978) in that he failed to affix his registration number to a contract," all in violation of "Section 489.129(1)(g) and (j) and Section 489.119(5), F.S. (1979)." In count three, the administrative complaint alleges that "[o]n or about May 19, 1979, Mr. Henry Pugh entered into a contract with" Aquapool which "contract failed to disclose the registration number or certificate number of the contractor" and that "on or about June 19, 1979, the Respondent applied for

and obtained a permit number 5368 for this project" so violating "Section 468.112(2)(b) and (c), F.S. (Supp. 1978) by aiding and abetting an unregistered person to commit a violation of [the construction industry licensing law] and knowingly combining with the unlicensed person by applying for and obtaining a permit . . . [in] violation of Section 489.129(1)(e) and (f), F.S. (1979)" and that respondent "also violated Section 468.112(2)(g), F.S. (Supp. 1978) in that he failed to comply in a material respect with Section 468.107(5), F.S. (Supp. 1978) in that he failed to affix his state registration number of the contract .

. . [all in] violation of Section 489.129(1)(j), F.S. (1979) and Section 489.119(5), F.S. (1979)." In count four, the administrative complaint alleges that "[o]n or about April 25, 1979, [Aquapool] entered into a contract with Mr. and Mrs. Guy J. Narejo . . . [and that on] or about June 18, 1979, [respondent] obtained permit number 11016 for this project" thereby violating "Section 468.112(2)(b) and (c), F.S. (Supp. 1978) in that he aided and abetted an unregistered person to evade the provisions of" the construction industry licensing law" and knowingly combined and conspired with an unregistered person by allowing his license to be used by that unregistered person to evade the provisions of" the construction industry licensing law in "violation of Section 489.129(1)(e) and (f), F.S. (1979)" and "also violated Section 468.112(2)(g),

F.S. (Supp. 1978) in that he failed in a material respect to comply with the provisions of Section 468.107(6), F.S. (Supp. 1978) by not affixing his registration number to his contract" all in "violation of Section 489.129(1)(j),

1. (1979) by failing to comply with a provision in Section 489.119(5), F.S. (1979)."

   
   

   RULINGS ON MOTIONS

   
   

   At the beginning of the final hearing, counsel for both parties each made various motions ore tenus.

   
   

   Respondent's motion to dismiss for want of jurisdiction on the grounds that state law conferred jurisdiction on the Pinellas County Construction Industry Licensing Board was denied because Section 468.112(1), Florida Statutes (1978 Supp.), had been repealed by the time the instant administrative complaint was filed.

   
   

   Respondent's motion to dismiss on account of the passage of time since the incidents allegedly occurred was denied.

   
   

   On respondent's motion and with petitioner's concurrence the last sentence of count one, the last sentence of count two, the last sentence of count three, and the last sentence of count four were stricken from the administrative complaint, thereby deleting references to Sections 489.129(1)(j) and 489.119(5), Florida Statutes (1979).

   
   

   On respondent's motion and without objection by petitioner, the second sentence of paragraph 11 and the second sentence of paragraph 13 were stricken from the administrative complaint, thereby deleting references to Section 489.129(1)(e) and (f), Florida Statutes (1979).

   
   

   On respondent's motion, over petitioner's objection, the third sentence of paragraph 13 and every reference to "Section 468.107(5), F.S. (Supp. 1978)," a conceded miscitation, were stricken from the administrative complaint.

   Petitioner's motion for leave to amend count two to allege a violation of Section 468.107(6), Florida Statutes (1977), rather than a violation of Section 468.107(6), Florida Statutes (1978 Supp.), was denied, without prejudice to the filing of another administrative complaint alleging any such violation.

   
   

   FINDINGS OF FACT

   
   

   1. At all pertinent times, respondent Henry J. Tinkler was licensed by petitioner as a swimming pool contractor, holding license No. 0024949, under the name of "Henry J. Tinkler."

      
      

   2. At one time, Fred C. Charlton worked as a "salesman" of swimming pool construction contracts for a Ft. Lauderdale construction company. When the Ft. Lauderdale company failed, several contracts to build swimming pools remained unexecuted.

      
      

   3. So that his "sales" would not have been in valid, Mr. Charlton organized Aquapool in late 1978 or early 1979 to step in to the shoes of the Ft. Lauderdale contractor. He has been president of the corporation since its inception. He knew that he could not pull building permits himself; and Mr. Charlton did not involve himself in the actual construction of the pools. Respondent became vice-president of Aquapool and held this office until September of 1979. Respondent has built several pools pursuant to oral agreements with Charlton (acting for Aquapool), to build all pools Aquapool "sold" in Pinellas County. In these transactions, Charlton made a profit and Tinkler made a profit.

      
      

   4. Respondent never applied for any building permit under Aquapool's name. He always used his own name or the name "Hank's Custom Pools." Respondent never made application to qualify Aquapool as a registered pool contractor in Florida. Neither did respondent make application to qualify "Hank's Custom Pools" as a registered pool contractor. Not uncommonly, contractors do business under fictitious trade names like "Hank's Custom Pools."

      
      

   5. Eventually one Clay Andrews of Jacksonville made application to quality Aquapool as a swimming pool contractor in Florida until November 17, 1979.

      
      

   6. Harry George Pugh and Grace L. Pugh signed, on May 19, 1979, a contract with Aquapool for construction of a swimming pool at their Indian Rocks Beach home. Petitioner's Exhibit No. 2. On the building permit application form, Petitioner's Exhibit No. 3, the contractor is listed as "Hank's Custom Pools." The application is dated June 19, 1979. Mr. Pugh never met Mr. Tinkler.

      
      

   7. Guy Jean and Jane A. Narejo also contracted with Aquapool to build a swimming pool at their home in Largo, Florida. Petitioner's Exhibit No. 4. Mr. Pugh never met Mr. Tinkler. On June 14, 1979, "H. Tinkler" applied for a permit to build the pool. The permit issued the following day. Petitioner's Exhibit No. 5.

      
      

   8. Willard L. Marks and Helen J. Marks signed, on May 1, 1979, a contract with Aquapool for construction of a swimming pool at their home in Clearwater, Florida. Petitioner's Exhibit No. 6. Mr. Marks never met Mr. Tinkler. H. J. Tinkler applied for a permit to build the pool on June 7, 1979. Petitioner's Exhibit No. 7.

   9. Swimming pool contractors ordinarily subcontract electrical work. Sometimes as many as four or five subcontractors participate in the building of a swimming pool.

      
      

   10. Petitioner's proposed recommended order has been considered and proposed findings of fact have been adopted except where they have been deemed irrelevant or unsupported by the evidence.

       
       

       CONCLUSIONS OF LAW

       
       

   11. At the time application was made for the building permits in question, on and after May 30, 1978, see Chapter 78-95, Section 58, Laws of Florida (1978), petitioner was authorized to

       
       

       1. Suspend the certificate holder or registrant from all operations as a contractor [or]

       2. Revoke a certificate or registration

          . . . . [or]

       3. Impose an administrative fine or penalty not to exceed $500 . . .

          recoverable . . . only in an action at law, Section 468.112(3), Florida Statutes (1978 Supp.),

          
          

          on a showing that any of the following had occurred:

          
          

          1. Aiding or abetting any uncertified or unregistered person to evade any provision of this part.

          2. Knowingly combining or conspiring with an uncertified or unregistered person by allowing one's certificate or registration to be used by any uncert- ified or unregistered person with intent to evade the provisions of this part. When a certificate holder or registrant allows his certificate or registration to be used by one or more companies without having any active participation in the

             operations, management, or control of said companies, [such action] constitutes prima facie evidence of an intent to evade the provisions of this part.

          3. Acting in the capacity of con- tractor under any certificate or regis- tration issued hereunder except in the name of the certificate holder or registrant as set forth on the issued certificate or registration, or in accor-

          dance with the personnel of the certificate holder or registrant as set forth in the application for the certificate or regis- tration, or as later changed as provided

          in this part. Section 468.112(2), Florida Statutes (1978 Supp.)

          Petitioner has authority to take the same actions for the same reasons under existing law. Section 489.129, Florida Statutes (1981).

          
          

   12. In applying for a building permit for the Pughs' swimming pool, respondent put down "Hank's Custom Pools." This was a technical violation of Section 468.112(2)(d), Florida Statutes (1978 Supp.), but the proof failed to establish that "Hank's Custom Pools" was anything other than another name for respondent's sole proprietorship.

       
       

   13. In force at all pertinent times was a statute making it "unlawful for any person to engage in the business or act in the capacity of a contractor without having been duly registered or certified." Section 468.111(1), Florida Statutes (1977). The same prohibition may be found in existing law. Section 489.127(1)(f), Florida Statutes (1981).

       
       

   14. With respect to the contracts between Aquapool and the Pughs, Aquapool and the Narejos, and Aquapool and the Markses, the evidence showed that Aquapool was not registered as a contractor, either at the time the contracts were entered into or at the time the building permits were issued to respondent. In contracting with the Pughs, the Narejos, and the Markses, Aquapool violated Section 478.111(1), Florida Statutes (1977).

       
       

   15. Since respondent Tinkler was a vice-president of Aquapool, the presumption created by the second sentence of Section 468.112(2)(c), Florida Statutes (1978 Supp.), does not arise. The evidence nevertheless established, clearly and convincingly, that Aquapool acted as a swimming pool contractor "without having been duly registered or certified," Section 468.111(1), Florida Statutes (1977); and that respondent, both as a corporate officer and as a subcontractor, aided and abetted, in violation of Section 468.112(2)(b), Florida Statutes (1978 Supp.), and conspired, in violation of Section 468.112(2)(c), Florida Statutes (1978 Supp.), to that end.

RECOMMENDATION

Upon consideration of the foregoing, it is RECOMMENDED:

That petitioner suspend respondent's registration as a swimming pool contractor for sixty (60) days.

DONE and ENTERED this 27th day of April, 1982, in Tallahassee, Florida.

ROBERT T. BENTON, II

Hearing Officer

Division of Administrative Hearings The Oakland Building

2009 Apalachee Parkway

Tallahassee, Florida 32301

Telephone: (904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 27th day of April, 1982.

COPIES FURNISHED:

Michael Egan, Esquire

217 South Adams Street Tallahassee, Florida 32301

Gerald Nelson, Esquire 4950 West Kennedy

Tampa, Florida 33609

James Linnan, Executive Director Construction Industry Licensing

Board

Post Office Box 2 Jacksonville, Florida 32302

Samuel R. Shorstein, Secretary Department of Professional

Regulation

130 North Monroe Street Tallahassee, Florida 32301

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

=================================================================

STATE OF FLORIDA DEPARTMENT OF PROFESSIONAL REGULATION CONSTRUCTION INDUSTRY LICENSING BOARD

DEPARTMENT OF PROFESSIONAL REGULATION/CONSTRUCTION INDUSTRY LICENSING BOARD,

Petitioner,

vs. CASE NO. 81-3043

HENRY J. TINKLER, RP 0024949

d/b/a Individual 5243 27th Avenue

St. Petersburg, Florida 33710

Respondent.

/

FINAL ORDER

This case came for final action by the Construction Industry Licensing Board on August 13, 1982, in Tampa, Florida. An administrative hearing held pursuant to Section 120.57(1), Florida Statutes, resulted in the issuance of a

Recommended Order which was reviewed by the Board. The Department of Professional Regulation and the Respondent filed exceptions to said Order which were considered by the Board. Following a review of the Recommended Order, the Exceptions to the Recommended Order, and the complete record of use proceeding, it is

ORDERED:

1. The findings of fact contained in the Recommended Order are approved and adopted and incorporated herein by reference.

   
   

2. The conclusions of law contained in the Recommended Order are approved and adopted and incorporated herein by reference. The Board rejects the exception to the conclusions of law as filed by the Respondent.

   
   

3. The Recommendation of the Hearing Officer be and is hereby rejected as inappropriate under the circumstances. The Board rejects the exceptions to said Recommendation as filed by the Department and the Respondent.

THEREFORE

It is ORDERED and ADJUDGED that the Respondent pay a civil penalty in the amount of $500. It is further Ordered that the registered pool contractor's license of the Respondent be and is hereby suspended for one (1) year; provided, however, that the Respondent's license may be reinstated after a period of sixty

(60) days upon proof of payment of the $500 civil penalty referred to above.

DONE and ORDERED this 25th day of August, 1982.

FLORIDA CONSTRUCTION INDUSTRY LICENSING BOARD

John Henry Jones, Chairman

Docket for Case No: 81-003043

Orders for Case No: 81-003043