STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF PROFESSIONAL )

REGULATION, CONSTRUCTION )

INDUSTRY LICENSING BOARD, )

)

Petitioner, )

)

vs. ) CASE NO. 82-717

)

CARL L. ROBINSON, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, R. L. Caleen, Jr., held a formal hearing in this case on May 28, 1982, in Tampa, Florida.

APPEARANCES

For Petitioner: Michael Egan, Esquire

217 South Adams Street Tallahassee, Florida 32302

For Respondent: David M. Carr, Esquire

600 Madison Street

Tampa, Florida 33602 ISSUE PRESENTED

Whether respondent's license as a registered general contractor should be suspended or revoked on charges that he violated the Construction Industry Licensing Law by failing to properly qualify a business organization; by aiding or abetting an unlicensed person engaging in the business of contracting; by conspiring with an unlicensed person engaging in the business of contracting; by acting in the capacity of a contractor under a name other than that authorized by his license; by signing a statement falsely indicating sub-contracted work, labor, and materials had been paid; and by engaging in contracting in a county in which he had not complied with all local licensing requirements.

BACKGROUND

By administrative complaint dated February 2, 1982, petitioner Department of Professional Regulation, Construction Industry Licensing Board ("Department"), charged respondent Carl L. Robinson ("respondent") with violating various provisions of Chapter 489, Florida Statutes (1981), the Construction Industry Licensing Law. Respondent denied the substantive charges and requested a hearing. On March 11, 1982, the Department forwarded this case to the Division of Administrative Hearings for the assignment of a hearing officer to conduct the requested hearing.

Hearing was set for May 28, 1982. Thereafter, the Department, without objection, filed an amended administrative complaint. The amended complaint seeks to suspend or revoke respondent's general contractor's license for failing to properly qualify a business organization; aiding or abetting an unlicensed person to engage in the business of contracting; knowingly combining or conspiring with an unlicensed person to engage in the business of contracting; acting in the capacity of a contractor under a name other than that set forth upon his license; signing a statement with respect to a project falsely indicating that payment had been made for all subcontracted work, labor, and materials; and engaging in contracting in a county in which he had not complied with all local licensing requirements.

At hearing the parties stipulated to certain facts. In addition, Petitioner's Exhibit 1/ Nos. 1(A)-(C) and 2-14 and Respondent's Exhibit Nos. 1-3 were offered and accepted into evidence. The Department called as witnesses: Darryl Sutphin, Harvey Russel Tiger, John P. Weinman, Salvatore Carollo, Carolyn Hager, James L. Boyles, Joseph Nuccio, Earl Jordan, and Charles

1. West. Respondent testified in his own behalf and called as witnesses Harvey Russel Tiger, Salvatore Carollo, and Earl Jordan.

   
   

   The transcript of hearing was filed on June 29, 1982. Both parties submitted proposed findings of fact and conclusions of law by July 21, 1982.

   
   

   Based on the evidence presented at hearing, the following facts are determined:

   
   

   FINDINGS OF FACT I.

   1. Respondent is a registered general contractor having been issued license No. RG 0019051. (Stipulation.)

      
      

   2. At all times pertinent to the charges, respondent engaged in the business of contracting under the name of Atlas Associates, Inc., of which he was the president. (Testimony of Robinson; Stipulation.)

      
      

   3. Atlas Associates, Inc., however, was not qualified, pursuant to Section 468.107, Florida Statutes (1977), to engage in the business of contracting. (Stipulation.)

      
      

   4. Respondent's registration authorized him to engage in the business of contracting only in Hillsborough County. He was not qualified to contract in any other county. He knew that he was not authorized to pull building permits in Pasco County. (Tr. 5, 171-172.) (Testimony of Robinson; Stipulation.)

      
      

      II.

      
      

   5. Atlas Associates, Inc., entered into a contract with Darryl R. Sutphin and his wife to construct a residence in Pasco County at 631 North Shore Drive, Lake Padgett, Florida. Respondent executed and performed under this contract as president of Atlas Associates, Inc. (Stipulation.)

      
      

   6. Respondent obtained the assistance of his brother-in-law, James Weinman, president of Masterpiece Homes, Inc., which was authorized to engage in contracting and pull building permits in Pasco County. At Mr. Weinman's

      request, John Weinman, an employee of Masterpiece Homes, Inc., pulled the building permits for the Sutphin job in the name of Masterpiece Homes, Inc. However, neither Salvatore Carollo, its licensed contractor, nor any other licensee employed by Masterpiece Homes, Inc., was involved in or supervised the subsequent construction of the Sutphin residence. (Tr. 71.) (Testimony of Weinman, Robinson, Carollo, Sutphin.)

      
      

   7. Construction of the Sutphin residence was financed by Fidelity Federal Savings and Loan Association ("Fidelity Federal"). An agreement was entered into between Fidelity Federal, the Sutphins, and Atlas Associates, Inc., whereby Fidelity Federal was to disburse the loan proceeds to Atlas Associates, Inc., in four draws. In conjunction with the payment of each draw, Fidelity Federal required respondent, on behalf of Atlas Associates, Inc., to execute standard

      no-lien affidavits certifying the following:

      
      

      All the persons, firms, and corporations who have furnished any labor, services and/or materials in connection with the construction or improvements on the real estate [in question]. . .have been paid in full as of the date of this affidavit. . .The undersigned owner further certifies that he has received no notices of unpaid bills or claims affecting the foregoing real estate except as are shown above.

      
      

      (P-5, P-6, P-7.) (Testimony of Hager; P-4, P-5, P-6, P-7.)

      
      

   8. Atlas Associates, Inc., contracted with Nu-Air Manufacturing Company ("Nu-Air") to install windows and screens at the Sutphin residence. On October

      16 and 22, 1979, Nu-Air installed the windows and, except for installing the screens, provided all the services and materials required under the contract. In November, 1979, Nu-Air mailed invoices totaling $700.56 to Atlas Associates, Inc. When the invoices were not paid, Nu-Air's credit manager sought payment by directly contacting a representative of Atlas Associates, Inc. No payment has been made, and the $700.56 remains unpaid. A claim of lien was subsequently filed on January 14, 1980. Yet, on October 19, 1979, and February 14, 1980, respondent executed Fidelity Federal's standard affidavits certifying that there were no unpaid invoices and that all firms who furnished labor or materials in connection with the Sutphin job had "been paid in full as of the date of this affidavit." As a result, Nu- Air suffered financial loss. (Testimony of Boyles; P-6, P-7, P-8, P-9, P-10.)

      
      

   9. On October 24, 1979, another subcontractor, Nuccio Heating and Air Conditioning ("Nuccio"), contracted with Atlas Associates, Inc., to furnish and install central heating and air conditioning units at the Sutphin job. Nuccio completed installing the units required by the contract on November 4, 1979. An invoice was mailed to Atlas Associates, Inc., by November 6, 1979. When it was not timely paid, Nuccio contacted respondent in December, 1979. Nuccio was never paid for its labor and materials; on July 22, 1980, it filed a claim of lien for a total of $2,927. Since Nuccio subsequently repossessed the condensing units, the amount that is now due and remains unpaid is $1,462. Yet, on February 14, 1980, respondent executed and submitted to Fidelity Federal the required affidavit certifying that there were no unpaid invoices and that all firms furnishing labor and material for the Sutphin job had been fully paid. As a result, Nuccio suffered financial loss. (Testimony of Nuccio; P-7, P-8, P-9, P-12.)

   10. On January 2, 1980, another subcontractor, W. W. Drywall, contracted with Atlas Associates, Inc., to install drywall for the Sutphin job. The drywall work was completed in early January, 1980, and an invoice was mailed to Atlas Associates, Inc., on or about January 12, 1980, for $2,591.06. On February 14, 1980, W. W. Drywall received a partial payment of $1,000, but the balance of $1,591.06 remains due and unpaid. W. W. Drywall subsequently filed a claim of lien for this amount. Yet on February 14, 1980, respondent executed and submitted to Fidelity Federal a standard affidavit certifying that there were no unpaid invoices and that all firms furnishing labor and materials for the Sutphin job had been paid. As a result, W. W. Drywall has suffered financial loss. (Testimony of West; P-7, P-13, P-14.)

       
       

       III.

       
       

   11. Respondent admits that when he executed the first October 19, 1979, affidavit, he knew that there were subcontractors which had not been paid. (Tr. 182-183.) He explains that he intended to pay them with the money he received from the draw. By the time he signed the February 14, 1980, affidavit, subcontractors had begun submitting bills directly to the loan officer of Fidelity Federal. He assumed, without checking or inquiring, that the subcontractors had been paid. (Testimony of Robinson.)

       
       

   12. Respondent was unaware of the Construction Industry Licensing Law requirement that registered contractors must register the corporate names under which they are doing business. Thus, his failure to qualify Atlas Associates, Inc., was not a willful or intentional violation of the Construction Industry Licensing Law. (Testimony of Robinson.)

       
       

   13. Between October, 1979, and February, 1980, respondent's working relationship with Mr. Sutphin began to deteriorate for reasons not material here. As a result, Mr. Sutphin began to actively participate in the project and deal directly with the various subcontractors. (Testimony of Robinson, Sutphin.)

       
       

       CONCLUSIONS OF LAW

       
       

   14. The Division of Administrative Hearings has jurisdiction over the parties and subject matter of this proceeding. 120.57(1), Fla. Stat. (1981).

       
       

   15. The Construction Industry Licensing Board is empowered to suspend or revoke the certificate or registration of a contractor if he is found guilty of:

       
       

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

       2. 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. 2/

       3. 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.

          1. Failure in any material respect to comply with the provisions of this act. 3/

             1. Signing a statement with respect to a project or contract falsely indicating that the work is bonded; falsely indicating that payment has been made for all subcontracted work, labor, and materials which results in a financial loss to the owner, purchaser, or

          contractor; or falsely indicating that workers' compensation and public liability insurance

          are provided.

          
          

          489.129(1), Fla. Stat. (1981).

          
          

   16. License revocation proceedings are penal in nature. The prosecuting agency is required to prove its charges by clear and convincing evidence--by evidence as substantial as the consequences. See, Bowling v. Department of Insurance, 394 So.2d 165 (Fla. 1st DCA 1981); Walker v. State, 322 So.2d 612 (Fla. 3d DCA 1975); Reid v. Florida Real Estate Commission, 188 So.2d 846 (Fla. 2d DCA 1966).

       
       

   17. Here, the Department has sustained its burden. It is concluded that respondent, by his described conduct, violated: Sections 489.119(2) and (3), 489.117(2), and thereby Section 489.129(1)(j) by contracting under the name of Atlas Associates, Inc., an unregistered corporation and by contracting in a county where he had not complied with all local licensing requirements; Section 489.129(1)(e) by aiding or abetting Atlas Associates, Inc., an unlicensed corporate person, to evade the Construction Industry Licensing Law; Section 489.129(1)(g) by contracting under a name, Atlas Associates, Inc., which does not appear on his license; and Section 489.129(1)(1) by signing no-lien affidavits falsely indicating that payment had been made for all subcontracted work, such affidavits resulting in financial loss to the subcontractors.

       
       

   18. Penalty. The essence of respondent's misconduct is that he knowingly combined or conspired with others to evade the licensing provisions of the Construction Industry Licensing Law. There was no evidence of any prior infractions. Such misconduct warrants suspension of his contracting license for a period of two (2) years.

       
       

   19. To the extent the parties' proposed findings of fact are incorporated in this recommended order, they are adopted; otherwise, they are rejected as unsupported by the evidence or unnecessary to the resolution of the issues presented.

RECOMMENDATION

Based on the foregoing, it is RECOMMENDED:

That respondent's license be suspended for a period of two (2) years.

DONE AND RECOMMENDED this 11th day of August, 1982, in Tallahassee, Florida.

R. L. CALEEN, JR. 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 11th day of August, 1982.

ENDNOTES

1/ Petitioner's and Respondent's Exhibits will be referred to as "P- ," and "R- ," respectively. Pages of the transcript will be referred to as

"Tr. "

2/ Formerly 468.112(2)(c), Fla. Stat. (Supp. 1978).

3/ Section 489.113(2), Florida Statutes (1981), formerly Section 468.111(1), Florida Statutes (1977), prohibits unlicensed persons from engaging in the business of contracting. Section 489.119(2) and (3), Florida Statutes (1981), requires licensees to register with the Department the corporate names under which they intend to engage in the business of contracting. Finally, Section 489.117(2), Florida Statutes (1981), formerly Section 478.105(2), Florida Statutes (1977), allows registrants to engage in contracting only in the counties where they have complied with all local licensing requirements.

COPIES FURNISHED:

Michael Egan, Esquire

217 South Adams Street Tallahassee, Florida 32301

David M. Carr, Esquire 600 Madison Street

Tampa, Florida 33602

James Linnan, Executive Director Construction Industry Licensing

Board

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: 82-000717

Orders for Case No: 82-000717