STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF PROFESSIONAL )

REGULATION, CONSTRUCTION )

INDUSTRY LICENSING BOARD, )

)

Petitioner, )

)

vs. ) CASE NO. 82-1236

)

JAMES D. POSKEY, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a formal administrative hearing was conducted in this matter on July 15, 1982, in Orlando, Florida. The following appearances were entered: John Williams, Tallahassee, Florida, appeared on behalf of the Petitioner, Department of Professional Regulation, Construction Industry Licensing Board; and Tom Smith, Orlando, Florida, appeared on behalf of the Respondent, James D. Poskey.

The Petitioner filed an administrative complaint, seeking to suspend or revoke the Respondent's license as a registered building contractor, or to take other appropriate disciplinary action against the Respondent. The Respondent requested a formal administrative hearing, and Petitioner forwarded the matter to the office of the Division of Administrative Hearings for the assignment of a Hearing Officer and the scheduling of a hearing. The final hearing was scheduled as set out above by notice dated June 7, 1982.

At the final hearing Petitioner called Nettie Wilkes, an Orlando resident, as its only witness. The Respondent testified as a witness on his behalf, and called Jerry Polk, an employee of the Orange County Fire Department, as an additional witness. Petitioner's Exhibits 1 through 5 were received into evidence. The parties have submitted posthearing memoranda which include proposed findings of fact and conclusions of law. The proposed findings and conclusions have been adopted only to the extent that they are expressly set out in the Findings of Fact and Conclusions of Law which follow. They have been otherwise rejected as not supported by the evidence, contrary to the evidence, irrelevant to the issues, or legally erroneous.

ISSUES

The issues in this proceeding are whether the Respondent has violated provisions of the Florida Construction Industry Licensing Law, and, if so, what disciplinary action should be taken. The administrative complaint specifically charges Respondent with aiding an unlicensed person to evade provisions of the contracting licensing law, conspiring with an unlicensed person to allow his license to be used to evade provisions of the law, acting as a contractor under a name other than as appears on his registration, and failing to properly

qualify a company under which he was doing business. Respondent denies the allegations.

FINDINGS OF FACT

1. At all times material to this proceeding, the Respondent has been duly licensed by the Petitioner as a building contractor.

   
   

2. On March 23, 1980, Nettie Wilkes entered into a contract with Rado Construction, Inc. The contract was for Rado to enclose a carport at Wilkes' residence and to do other work incident to that renovation. The contract provided that work would commence on April 10, 1980, and be completed approximately 21 to 30 days from the start. The total contract price was

   $5,700, and Mrs. Wilkes gave Rado a $1,500 down payment. Donald W. Gray negotiated the contract on behalf of Rado with Wilkes. Gray appears to be the principal party in Rado Construction.

   
   

3. Gray contacted James Neilan and Jerry Polk about performing the work on the Wilkes project. Gray did not show Polk a copy of the contract with Wilkes, and he led Polk to believe that considerably less work would need to be performed than was required under the contract. Although Polk had a local occupational license as a carpenter, he was not a licensed contractor, and was not able to obtain a building permit for the work. Neilan and Gray were also unlicensed and unable to obtain a permit. Polk assumed that he would be working for Gray in a subcontracting capacity. Polk had performed considerable carpentry work on a subcontracting basis for the Respondent. Polk felt that the Respondent might help him obtain a permit.

   
   

4. Polk approached the Respondent about the Wilkes' project. He told the Respondent the scope of the project as it bad been related to Polk by Gray. He did not advise the Respondent of the involvement of Gray or of Rado Construction. Polk initially asked the Respondent if the Respondent would be able to do the job and the Respondent indicated that he could not. Polk and the Respondent discussed the job on a casual basis and the discussion ended.

   Several days later, Polk returned to the Respondent's office and asked the Respondent if the Respondent could obtain the building permit and allow Polk to perform the work on a subcontractor basis. Respondent drew up some plans about the project. He agreed to Polk's proposal. The Respondent filed an application with the building inspection department of the City of Orlando for a building permit on April 15, 1980. A permit was issued by the city on that same date.

   Respondent had estimated the cost of the project, based upon his discussion with Polk, as being approximately $2,000. The Respondent delivered the permit to Polk and advised Polk that he would be inspecting the project periodically.

   
   

5. Polk posted the permit at the Wilkes' property and worked together with James Neilan on the project. The work did not commence as scheduled in the contract between Rado Construction and Mrs. Wilkes, but it did commence sometime after April 15, 1980. As the project went on, Gray would from time to time visit the site and advise Polk and Neilan of additional work that would need to be performed that Polk had not known about earlier. Polk did not know that considerable masonry work would be required. He was not qualified to do masonry work, but he attempted to perform it. As the work went on, Polk became more and more dissatisfied, and ultimately concluded that what had been described to him as a one and one-half week job for two people was in reality a two-week job for ten men. Polk ultimately removed the permit from the premises and abandoned his work there.

6. Approximately four days after he obtained the building permit for Polk, the Respondent visited the job site. He observed that no work had commenced and he contacted Polk. Polk erroneously advised the Respondent at that time that the project had been abandoned and that the permit would not be utilized. Respondent heard nothing more about the project for approximately four weeks. Mrs. Wilkes eventually became dissatisfied with the nature of the services that were being performed on her property. When Polk abandoned further work, she contacted the building permit officials and was advised that the Respondent, not Rado Construction, had obtained the permit. She contacted the Respondent and advised him of what had occurred. The Respondent promptly visited Mrs. Wilkes at her home. He was surprised and appalled to find that very poor work had been performed in a very sloppy manner. He discussed the matter at length with Mrs. Wilkes and learned for the first time of Gray's involvement in the project. He advised Mrs. Wilkes that he would not be able to do the job, but he gave her a check for $600 which she told him would be sufficient to complete the project. Respondent also provided laborers to perform cleanup work at the site, and hired a subcontractor to pour a driveway. Respondent expended approximately $1,000 to complete the project for Mrs. Wilkes.

   
   

7. The Respondent located Gray, and in an unpleasant confrontation, obtained a promissory note from Gray for $1,000 to compensate the Respondent for his expenditures. The Respondent ultimately accompanied Mrs. Wilkes to a first meeting of creditors at Gray's bankruptcy proceedings.

   
   

8. The Respondent has not previously or subsequently engaged in business in the manner that he did in this transaction. He is a reputable contractor and is contrite about the role that he played in the transaction.

   
   

   CONCLUSIONS OF LAW

   
   

9. The Division of Administrative Hearings has jurisdiction over the parties and the subject matter of this proceeding. Sections 120.57(1), 120.60, Florida Statutes.

   
   

10. Respondent is charged with violating four provisions of Chapter 489, Florida Statutes, in connection with the Wilkes' transaction. It is charged that he violated the provisions of Section 489.120(1)(e), Florida Statutes, in that he aided and abetted an unlicensed person to evade the provisions of the contracting licensing law. This allegation has been sustained by the evidence. By agreeing to obtain a building permit to allow Polk to perform work on the Wilkes' project, the Respondent, albeit unwittingly, aided Rado Construction and Donald Gray to operate as a licensed building contractor. While it was not his intention to do that, the Respondent was under a clear obligation to learn more about the nature of Polk's relationship with the Wilkes' project. If he had inquired further of Polk, the Respondent would either have learned sufficient information to lead him to the conclusion that he should not obtain the permit for Polk, or he would have learned that Polk himself had insufficient knowledge of the project.

    
    

11. The remaining allegations of statutory violations have not been sustained by the evidence. It is charged in the administrative complaint that the Respondent violated the provisions of Section 489.129(1)(f), Florida Statutes, in that he knowingly conspired with an unlicensed person with intent to evade the provisions of the statute. The Respondent did not knowingly conspire with Polk with intent to evade the provisions of law. Instead, he agreed to assist Polk in a manner which on its face appeared lawful. It is charged that the Respondent violated the provisions of Section 489.129(1)(g),

    Florida Statutes, in that he acted as a contractor under a name other than as appears on his registration. This allegation is not sustained by the evidence. The Respondent never operated under any name but his own. That is the name that he used in obtaining the building permit. The Respondent is charged with violating the provisions of Section 489.129(1)(j), Florida Statutes, in that he failed to comply with the provisions of Sections 489.119(2) And (3) relating to properly qualifying companies under which he was doing business. The Respondent at no time did business under any name or through any company but his own.

    
    

12. The Respondent has fully compensated Mrs. Wilkes, the person who was most directly injured by the acts which gave rise to this proceeding. Furthermore, it does not appear that the Respondent has previously violated any provisions of the statutes relating to building contractors, and he is remorseful. Only minimal disciplinary action is justifiable under these circumstances.

RECOMMENDED ORDER

Based upon the foregoing Findings of Fact and Conclusions of Law, it is, hereby,

RECOMMENDED:

That the Department of Professional Regulation, Construction Industry Licensing Board, enter a final order reprimanding the Respondent for his violation of the provisions of Section 489.129(1)(e), Florida Statutes, as set out above, and imposing an administrative fine against the Respondent in the amount of $250.

RECOMMENDED this 13th day of August, 1982, in Tallahassee, Florida.

G. STEVEN PFEIFFER Assistant Director

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 13th day of August, 1982.

COPIES FURNISHED:

John O. Williams, Esquire

547 North Monroe Street Tallahassee, Florida 32301

Thomas B. Smith, Esquire

2 South Orange Avenue Orlando, Florida 32801

J. K. Linnan, Executive Director Construction Industry Licensing

Board

Post Office Box 2 Jacksonville, Florida 32201

Samuel R. Shorstein, Secretary Department of Professional

Regulation

130 North Monroe Street Tallahassee, Florida 32301

Docket for Case No: 82-001236

Orders for Case No: 82-001236