STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

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

)

Petitioner, )

)

vs. ) CASE NO. 82-542

)

MICHAEL J. IPSEN, )

)

Respondent. )

)

RECOMMENDED ORDER

This matter came on for hearing in Hollywood, Florida on June 14, 1982, before the Division of Administrative Hearings and its duly appointed Hearing Officer, R. T. Carpenter. The parties were represented by:

APPEARANCES

For Petitioner: Michael J. Cohen, Esquire

101 Kristen Building

2715 East Oakland Boulevard Ft. Lauderdale, Florida 33306

For Respondent: Mr. Michael J. Ipsen

1229 North West 7th Terrace Ft. Lauderdale, Florida 33311

This matter arose on Petitioner's Administrative Complaint charging Respondent with various violations under Chapters 455 and 489, Florida Statutes (F.S.). Petitioner submitted proposed findings of fact which have been incorporated herein to the extent they are relevant and consistent with the evidence.

FINDINGS OF FACT

1. Respondent is a registered roofing contractor holding Florida license number RC0034000. He was so licensed at all times relevant to this proceeding.

   
   

2. About April 11, 1980, Alexander D. Wynn contracted with Darryl Saibic, owner of Darric Construction, Inc., to reroof Wynn's home in Plantation, Florida. Work began on April 17, 1980, although no building permit had been obtained from the Plantation Building Department.

   
   

3. In response to Wynn's complaint, the Plantation Building Department issued a violation notice and stop order to Darric Construction, Inc. on April 17, the same day work started.

4. Richard Kessel, President of Darric Construction, Inc., had no one to qualify the company to perform roofing work and asked Respondent to act as the qualifier. Respondent agreed and he and Kessel drove to the Broward County and Plantation Building Departments on April 17, where Kessel turned in the paperwork necessary to qualify Respondent.

   
   

5. Respondent signed a building permit application for the Wynn job, and a permit was issued to Darric Construction, Inc., later that day. Respondent did not supervise or in any way participate in the Wynn project, but merely loaned his license to Kessel as a personal favor.

   
   

6. Respondent filed his application to qualify Darric Construction, Inc., with the State of Florida on April 18, but did not receive the registration until July 14, 1980. Thus, work began before Respondent had applied for this registration and was not issued until several months later, after the Wynn project was completed.

   
   

7. The Wynn contract, ostensibly with Darric Construction, Inc., had the name William P. Doe Company, Roofing and Construction Contractors, listed at the top of the document. No reference was made to Darric Construction, Inc., the company which Respondent attempted to qualify, nor was Respondent's registration number entered on this contract. See Petitioner's Exhibits one and three.

   
   

   CONCLUSIONS OF LAW

   
   

8. Section 489.119, F.S. (1979), provides in part:

   
   

   (2) If the applicant proposes to engage in contracting as a partnership, corporation, business trust, or other legal entity, the applicant shall apply through a qualifying agent; the application shall state the name of the partnership and of its partners, the name of the corporation and of its officers and directors, the name of the business trust and its trustees, or the name of such other legal entity and its members; and the applicant shall furnish evidence of statutory compliance if a fictitious name is used. Such application shall also show that 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. The registration or certification, when issued upon application of a business organization, shall be in the name of the qualifying agent, and the name of the business organization shall be noted thereon.

   (3)(a) The qualifying agent shall be certified or registered under this act in order for the business organization to be certified or registered in the category of the business conducted for which the qualifying agent is certified or registered. If any qualifying agent ceases to be affiliated with such

   business organization, he shall so inform the department. In addition, if such qualifying agent is the only certified or registered individual affiliated with the business organization, the business organization shall notify the department of the termination of the qualifying agent and shall have a minimum of 60 days from the termination of the qualifying agent's affiliation with the business organization in which to employ another qualifying agent. The business organization may not engage in contracting until a qualifying agent is employed.

   (b) The qualifying agent shall inform the department in writing when he proposes to engage in contracting in his own name or in affiliation with another business organization, and he or such new business organization shall supply the same information to the department as required of applicants under this act.

   (5) Each registered or certified contractor shall affix the number of his registration or certification to all his contracts and bids. Any official issuing building permits shall affix such number to each application for a building permit and on each building permit issued and recorded.

   
   

9. Section 455.227, F.S. (1979), provides in part:

   
   

   1. The board shall have the power to revoke, suspend, or deny the renewal of the license,

      or to reprimand, censure, or otherwise discipline a licensee, if the board finds that:

      1. The licensee has made misleading, deceptive, untrue, or fraudulent representations in the practice of his profession;

         
         

10. Section 489.129, F.S. (1979), provides in part:

    
    

    489.129 Disciplinary proceedings. -

    1. The board may revoke, suspend, or deny the issuance or renewal of the certificate or registration of a contractor or impose an administrative fine not to exceed $1,000,

    place the contractor on probation, reprimand or censure, a contractor if the contractor is found guilty of any of the following acts:

    1. Violation of chapter 455.

    2. Willful or deliberate disregard and of the applicable building codes or laws of the state or of any municipalities or counties thereof.

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

    4. Knowingly combining or conspiring with an uncertified or unregistered person by allowing one's certificate or registration to be used

       by any uncertified or unregistered person with intent to evade the provisions of this act.

       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 act constitutes prima facie evidence of an intent to evade the provisions of this act.

    5. Acting in the capacity of a contractor under any certificate or registration issued hereunder except in the name of the certificate holder or registrant as set forth on the issued certificate or registration, or in accordance with the personnel of the certificate holder or registrant as set forth in the application for the certificate or registration, or as later changed as provided in this act.

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

    
    

11. Respondent is charged herein with violating all of the above-quoted statutory provisions. The facts adduced in this proceeding establish that Respondent did materially violate these statutes as charged. However, he did so through ignorance and disregard of the requirements of law rather than through any corrupt purpose or motive.

    
    

12. Respondent failed to qualify Darric Construction, Inc., prior to the commencement of work as required by Subsections 489.119(2) and (3), and 489.129(1)(d), F.S. Additionally, his name did not appear on the Wynn contract in violation of Subsections 489.119(5) and 489.129(1)(j), F.S. Further, this contract was executed by a company other than that for which Respondent sought to qualify in violation of Subsections 489.129(1)(g) and (j) F.S.

    
    

13. Respondent's loan of his registration enabled an unregistered person to evade the requirements of law imposed on contractors in violation of Subsections 489.129(1)(e) and (f), F.S. His failure to participate in company management or operations was a further violation of the latter provision. Finally, the above acts and omissions amounted to deceptive and misleading representations to a member of the contracting public in the practice of the roofing contractor's profession, in violation of Subsections 455.227(1)(a) and 489.129(1)(c), F.S.

RECOMMENDATION

From the foregoing, it is RECOMMENDED:

That Petitioner enter its Final Order finding Respondent guilty of the charges contained in the Administrative Complaint and suspending his roofing contractor's license for a period of one year; with reinstatement thereafter only upon demonstration by Respondent that he understands the provisions of law which apply to roofing contractors and that he is capable of adhering to these requirements.

DONE and ENTERED this 28th day of July, 1982 in Tallahassee, Florida.

R. T. CARPENTER, 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 28th day of July, 1982.

COPIES FURNISHED:

Michael J. Cohen, Esquire

101 Kristen Building

2715 East Oakland Park Blvd. Ft. Lauderdale, Florida 33306

Mr. Michael J. Ipsen

1229 North West 7th Terrace Ft. Lauderdale, Florida 33311

James Linnan Executive Director

Construction Industry Licensing Board Department of Professional Regulation Post Office Box 2

Jacksonville, Florida 32202

Samuel R. Shorstein Secretary

Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32301

Docket for Case No: 82-000542

Orders for Case No: 82-000542