STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF PROFESSIONAL )

REGULATION, CONSTRUCTION )

INDUSTRY LICENSING BOARD, )

)

Petitioner, )

)

vs. ) CASE NO. 82-721

)

CHARLES A. WUNDER, SR., )

)

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 March 9, 1983, in Fort Myers, Florida.

APPEARANCES

For petitioner: Xavier J. Fernandez, Esquire

Post Office Box 729

Fort Myers, Florida 33902

For respondent: John K. Shoemaker, Esquire

Post Office Box 1601

Fort Myers, Florida 33902 ISSUE PRESENTED

Whether respondent's contractor's license should be disciplined on charges that he violated Chapter 489, Florida Statutes, by (1) failing to properly qualify accompany through which he was engaging in the business of contracting, and (2) aiding, abetting, or conspiring with an unlicensed person to evade the provisions of the Construction Industry Licensing Law.

BACKGROUND

By a two-count administrative complaint dated February 2, 1981, the Department of Professional Regulation, of Construction Industry Licensing Board ("Department") charged respondent Charles A. Wunder, Sr., with violating Chapter 489, Florida Statutes, the Construction Industry Licensing Law. The respondent disputed the charges and requested a Section 120.57(1) hearing. The Department then forwarded this case to the Division of Administrative Hearings for assignment of a Hearing Officer.

Hearing was set for July 1, 1982, continued on the parties' joint motion and reset for October 7, 1982, then continued, again, upon a representation that this case had been tentatively settled. Subsequently, hearing was reset for March 9, 1983.

At hearing, the Department called Bozidar Devic as its only witness.

Respondent testified on his own behalf and called Mary Marshall, Joe Cosser and James Wunder. Respondent's Exhibit 1/ Nos. 1-6 were received into evidence. No proposed findings of fact and conclusions of law have been filed.

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

FINDINGS OF FACT

1. Respondent is a certified general contractor holding license number CG C005645. His last known address was Raemel Construction & Engineering, Inc., 950 County Club Boulevard, Cape Coral, Florida 33904 (Prehearing Stipulation).

   
   

   I.

   
   

2. Although respondent has engaged in contracting under the name of Raemel Construction & Engineering, Inc., since May 27, 1980, he did not qualify this company with the Construction Industry Licensing Board until December 4, 1980. (Prehearing Stipulation; Testimony of respondent.)

   
   

3. This was not, however, an intentional violation of the Construction Industry Licensing Law. It wasn't until December, 1980--after consulting with his new attorney--that respondent discovered that his former attorney had not filed the necessary papers to qualify his newly renamed company with the Construction Industry Licensing Board. Upon discovering this omission, he promptly qualified the company with the Board. (Testimony of respondent.)

   
   

   II.

   
   

4. In May, 1980, respondent entered an agreement with Bozidar and Rene Devic to build a commercial building to be known as Atrium Plaza on Lots 1-8, Block 359, Cape Coral, Florida. The construction price was $145,000. (R-1.)

   
   

5. Thereafter, respondent, together with his on-site building superintendent, carried out the duties of a general contractor. He supervised the construction of the building, helped obtain the construction loan, received the construction loan proceeds, and, in turn, paid the subcontractors. He, together with Mr. Devic, selected the masonry, plumbing, roofing and electrical subcontractors. He pulled the building permit, checked with his on-site building superintendent daily, and inspected the project at least twice a week. He arranged for all building inspections. Indeed, there is no evidence that the respondent acted other than as a competent and responsible general contractor. (Testimony of respondent, Wunder, Cosser.)

   
   

6. Herbert J. Werner, Director of the Building and Zoning Department of the City of Cape Coral, submitted a sworn statement on respondent's behalf, a statement which is singular in its praise of respondent's performance as a contractor:

   
   

   It has been my extreme pleasure to have known and dealt with Charles A. Wunder, Sr., during most of the above mentioned

   [6] years.

   He has always conducted himself in a most professional manner and I cannot recall a single complaint against him in all that time.

   
   

   Were I to have my choice of people to conduct business with, out of the 2200 contractors within our city, my first choice would be Mr. Charles A. Wunder, Sr. (R-4.)

   
   

   CONCLUSIONS OF LAW

   
   

7. The Division of Administrative Hearings has jurisdiction over the parties and subject matter of this proceeding. Section 120.57(1), Florida Statutes (1981).

   
   

8. The Construction Industry Licensing Board is empowered to discipline a contractor's license for, among other things, failing to promptly qualify a company which is engaged in contracting, a violation of Section 489.129(1)(j) and Section 489.119(2), Florida Statutes (1981), and aiding, abetting or conspiring with an unlicensed person to evade the provisions of Chapter 489, the Construction Industry Licensing Law, a violation of Section 489.129(1)(e) and (f), Florida Statutes (1981).

   
   

9. License revocation proceedings, such as this, are penal in nature. The prosecuting agency must prove its charges by clear and convincing evidence, by evidence as substantial as the consequences. See, Reid v. Florida Real Estate Commission, 188 So.2d 846 (Fla. 2d DCA 1966); Walker v. State, 322 So.2d 612 (Fla. 2d DCA 1975); Bowling v. Department of Insurance, 394 So.2d 165, 172 (Fla. 1st DCA 1981).

   
   

10. Measured by this standard, it is concluded that, as to Count I, respondent violated Sections 489.129(1)(j) and 489.119(2), by failing to properly and timely qualify his contracting company with the Construction Industry Licensing Board. The evidence does not, however, prove a violation of Section 489.129 (1)(e) and (f). Count II, therefore, must be dismissed.

    
    

11. Penalty. Respondent's failure to timely qualify his company was an unintentional error, one which he promptly rectified. Under such circumstances, this is a nonserious, technical violation. The pleadings indicate that, at one time, the Department considered a reprimand to be a sufficient penalty. Given the facts of this case, and the requirement that a penalty not be disproportionate to the offense, a reprimand is wholly appropriate.

RECOMMENDATION

Based on the foregoing, it is RECOMMENDED:

That respondent receive a reprimand for violating Sections 489.129(1)(j) and 489.119(2), Florida Statutes (1981).

DONE and RECOMMENDED this 21st day of March, 1983, in Tallahassee, Leon County, 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 21st day of March, 1983.

ENDNOTE

1/ Respondent's Exhibits will be referred to as "R- ."

COPIES FURNISHED:

Xavier J. Fernandez, Esquire Post Office Box 729 4

Fort Myers, Florida 33902

John K. Shoemaker, Esquire Post Office Box 1601

Fort Myers, Florida 33902

Frederick Roche, Secretary Department of Professional

Regulation

130 North Monroe Street Tallahassee, Florida 32301

J. K. Linnan, Executive Director Construction Industry Licensing

Board

Post Office Box 2 Jacksonville, Florida 32201

Docket for Case No: 82-000721

Orders for Case No: 82-000721