STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF PROFESSIONAL )

REGULATION, CONSTRUCTION )

INDUSTRY LICENSING BOARD, )

)

Petitioner, )

)

vs. ) CASE NO. 82-0829

)

LARRY T. HUSTON, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, this cause was heard by Linda M. Rigot, the assigned Hearing Officer of the Division of Administrative Hearings, on May 19, 1983, in Fort Lauderdale, Florida.

Petitioner Department of Professional Regulation, Construction Industry Licensing Board was represented by Michael J. Cohen, Esquire, Fort Lauderdale, Florida, and Respondent Larry T. Huston was represented by Justin Edward Beals, Esquire, Miami, Florida.

Petitioner filed an Administrative Complaint seeking to suspend, revoke or take other disciplinary action against the Respondent as licensee and against his license as a registered specialty contractor under the laws of the State of Florida Respondent timely requested a formal hearing on the allegations contained within that Administrative Complaint. Accordingly, the issues for determination are whether Respondent is guilty of the charges contained in that Administrative Complaint and, if so, what disciplinary action should be taken, if any.

Petitioner presented the testimony of Regina M. Olzak and Fred Olzak. Additionally, Petitioner's Exhibits numbered 1 through 4 were admitted in evidence.

Both parties submitted post hearing proposed findings of fact in the form of a proposed recommended order. To the extent that any proposed findings have not been adopted in this Recommended Order, they have been rejected as not having been supported by the evidence, as having been irrelevant to the issues under consideration herein, or as constituting unsupported argument of counsel or conclusions of law.

FINDINGS OF FACT

1. Respondent is a registered specialty contractor having been issued license number RX0032228, which he holds in the name of Larry T. Huston, Huston Awning Co.

2. On May 29, 1980, Frank Cornelius, on behalf of Hurst Awning Aluminum Company, Inc., went to the mobile home of Mr. and Mrs. Fred Olzak located in Broward County, Florida, where he met with Mrs. Olzak. By the conclusion of that meeting, Cornelius and Mrs. Olzak had entered into two separate contracts whereby Hurst was to construct a screened enclosure at her mobile home. Both contracts were fully executed and were for the same work, although they varied in price by almost $2,000. No credible explanation was offered as to why Mrs. Olzak entered into two separate contracts.

   
   

3. Approximately a month later, three men arrived at the Olzaks' mobile home with materials bearing the Hurst logo in a truck bearing the Hurst name. They returned a day or two later and started the construction work contracted for by Mrs. Olzak.

   
   

4. At the beginning of July 1980, when the work was almost completed, an inspector for the Broward County Building Department came to the job site and stopped the work for the reason that no permit had been obtained from Broward County.

   
   

5. Shortly thereafter, Respondent telephoned Mrs. Olzak and explained that he had been requested by Frank Cornelius at Hurst to do the necessary engineering work for them. He requested permission to come to the Olzaks' mobile home to take the measurements necessary to prepare engineered sealed plans for the job.

   
   

6. That evening, Respondent visited the Olzak job site and took the measurements necessary to prepare the plans in order to comply with Broward County requirements. While there, he only spoke with Mr. Olzak. He told Olzak that he had his own company, Huston Awning Company, and that he was working with Hurst so that a building permit could be obtained. He advised Olzak where he could be reached at Huston Awning Company in Broward County.

   
   

7. Respondent filed a building permit application with the Broward County Building and Zoning Enforcement Division for the Olzak job. He made application in the name of his company, Huston Awning Company, and signed the application as the contractor. A building permit was issued.

   
   

8. After issuance of the permit, two men came to the Olzaks' mobile home in a truck bearing no company name. They came to continue or complete the Olzak construction. Mrs. Olzak decided she did not like them and issued instructions that they would not be permitted to work on the project. No evidence was presented as to whether those men were employed by Hurst or by Huston.

   
   

9. Thereafter, Mrs. Olzak refused to allow any further work to be done in completion of the contract. No final inspection has ever been made, since Mrs. Olzak has also denied access to the project to the inspector from Broward County.

   
   

10. At no time has Respondent qualified Hurst Awning Aluminum Company, Inc., although no competent evidence was introduced to show that Respondent was employed by Hurst or had an interest in Hurst which might enable him to qualify that company.

    
    

11. At the formal hearing, Mr. Olzak admitted Respondent told him he was with Huston Awning Company in Broward County, and Mrs. Olzak admitted Respondent told her he purchases all of the awnings he uses in his business from Hurst Awning Company.

    CONCLUSIONS OF LAW

    
    

12. The Division of Administrative Hearings has jurisdiction over the subject matter hereof and the parties hereto. Section 120.57(1), Florida Statutes (1981).

    
    

13. The Administrative Complaint filed herein charges Respondent with violating Sections 489.129(1)(e), 489.129(1)(f), 489.129(1)(g), and 489.129(1)(j) by violating Sections 489.119(2) and (3), Florida Statutes (1979). Those regulatory statutes provide as follow:

    
    

    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. 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 registra- tion to be used by any uncertified or unregistered person with intent to evade the provisions of this act. When a certi- ficate 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.

       3. Acting in the capacity of a contractor under any certificate or regis- tration issued hereunder except in the name of the certificate holder or regis-

       trant 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.

       489.119 Business organizations; qualifying agents.

       * * * * *

    2. If the applicant proposes to engage in contracting as a partnership, corpora- tion, business trust, or other legal entity, the applicant shall apply through a quali- fying 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 ame of such other legal entity and its members; and the applicant shall furnish evidence of statutory compliance if a fic- titious name is used. Such application shall also show that the qualifying agent is legally qualified to act for the busi- ness 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 quali- fying agent is certified or registered.

       If any qualifying agent ceases to be affi- liated with such business organization, he shall so inform the department. In addi- tion, if such qualifying agent is the only certified or registered individual affili- ated with the business organization, the business organization shall notify the department of the termination of the quali- fying 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 organiza- tion may not engage in contracting until

       a qualifying agent is employed.

       1. 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 infor- mation to the department as required of applicants under this act.

       2. Upon a favorable determination

       by the board, after investigation of the financial responsibility, credit, and business reputation of the qualifying agent and the new business organization, the department shall issue, without an exami- nation, a new certificate or registration in the qualifying agent's name, and the name of the new business organization shall be noted thereon.

       
       

14. Petitioner has failed to prove that Respondent aided and abetted an unlicensed person to evade the provisions of the contracting license law or that Respondent knowingly conspired with an unlicensed person and allowed his license to be used to evade the provisions of that law in violation of Sections 489.129 (1)(e) and (f), Florida Statutes (1979). Although it appears clear that Cornelius, d/b/a Hurst, did not obtain a building permit in compliance with Broward County requirements, Respondent did do so. No evidence was introduced to show that Respondent did not "take over" Hurst's contract with Mrs. Olzak or that Respondent did not make an arrangement with Hurst to jointly complete the construction project. Indeed, there is a dearth of evidence as to any work done by either Hurst, or by Huston Awning Company after Respondent pulled the building permit. Without proving that any work was done by Hurst and/or Huston after Respondent pulled the permit, Petitioner cannot prove the lack of active participation by Respondent required to show the intent to evade required in order to discipline him. Indeed, without that proof, it is as easy to assume that Respondent aided, abetted and conspired with someone to comply with the provisions of the contracting laws as it is to assume that he intended to evade those same laws. Accordingly, "assumed intentions" cannot form the basis upon which action, penal in nature, can be taken against Respondent.

    
    

15. Petitioner has failed to prove that Respondent acted in the capacity of a contractor under a name other than that which appears on his registration, in violation of Section 489.129 (1)(g), Florida Statutes (1979). Rather, Petitioner proved that Respondent properly applied for and was issued a building permit in the name of Huston Awning Company. Even the Olzaks testified that they knew Respondent had his own company. In his testimony, Mr. Olzak was unable to keep the two companies--Huston Awning Company and Hurst Awning Aluminum Company, Inc.--unconfused in his mind. Mrs. Olzak's "belief" that Respondent was an employee of Hurst Awning Company is based upon her interpretation of conversation she had with someone who answers the telephone at Hurst Awning and is contrary to the representations made to her by Respondent, who advised both Olzaks that he had his own business and that Hurst had requested him to do the engineering work necessary to obtain the permit and complete the Olzak construction project. Accordingly, to the extent that Respondent acted in the capacity of a contractor on the Olzak project, he did so only under the name in which his license was issued to him by Petitioner.

    
    

16. Petitioner has also failed to prove that Respondent violated Section 489.129(1)(j) by violating Sections 489.119(2) and (3), Florida Statutes (1979), by failing to properly qualify a company under which he was doing business. Since Petitioner failed to prove that Respondent acted other than under his licensed name, it is apparent that Petitioner has also failed to prove that Respondent intended to engage in contracting through a different company, assumedly Hurst. Mrs. Olzak stopped work by Huston and/ or Hurst right after the building permit was obtained. There is no evidence in this record to clearly indicate that Hurst and/or Huston engaged in contracting after the time

that Respondent first became involved in this construction project, and there is no evidence to show whether Hurst or Huston sent to the project the two men whom Mrs. Olzak disliked and ousted. If Huston took over the contract from Hurst, no violation of the law has been shown. If Respondent, on the other hand, was affiliating with Hurst for the purpose of completing a near-complete project, he would not legally be entitled to become a qualifying agent for Hurst; not being an employee, an officer or director of that corporation, Respondent could never show that he was legally qualified to act for that business organization in all matters connected with its business. In short, there are simply too many gaps in Petitioner's proof as to what Respondent might have intended to do had Mrs.

Olzak allowed work to proceed under either or both of the contracts she signed.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered finding Respondent not guilty of

the allegations contained in the Administrative Complaint and dismissing the Administrative Complaint filed against him.

DONE and RECOMMENDED this 3rd day of August, 1983, in Tallahassee, Leon County, Florida.

LINDA M. RIGOT

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 3rd day of August, 1983

COPIES FURNISHED:

Michael J. Cohen, Esquire Kristin Building, Suite 101

2715 East Oakland Park Boulevard Fort Lauderdale, Florida 33306

Justin E. Beals, Esquire Forte Plaza, Suite 808 1401 Brickell Avenue Miami, Florida

33131 Frederick Roche, Secretary Department of Professional

Regulation

130 North Monroe Street Tallahassee, Florida 32301

James K. Linnan, Executive Director Construction Industry Licensing

Board

Post Office Box 2 Jacksonville, Florida 32202

Docket for Case No: 82-000829

Orders for Case No: 82-000829