STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF PROFESSIONAL )

REGULATION, CONSTRUCTION )

INDUSTRY LICENSING BOARD, )

)

Petitioner, )

)

vs. ) CASE NO. 82-1635

)

JOSE MILTON, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, James E. Bradwell, held a public hearing in this case on September 29, 1982, in Miami, Florida. The hearing officially closed on October 28, 1982, the date the parties were afforded leave to submit proposed memoranda supportive of their respective positions.

APPEARANCES

For Petitioner: Stephanie Daniel, Esquire

130 North Monroe Street Tallahassee, Florida 32301

For Respondent: Robert D. Korner, Esquire

4790 Tamiami Trail (8th Street) Coral Gables, Florida 33134

ISSUE

The issue posed for decision herein is whether or not the Respondent, Jose Milton, failed to qualify Joseph Enterprises, an entity through which it is alleged that the Respondent engaged in the business of contracting, in violation of Section 489.129(1)(j) and Sections 489.119(2) and (3), Florida Statutes.

FINDINGS OF FACT

1. Based upon my observation of the witnesses and their demeanor while testifying, the documentary evidence received and the entire record compiled herein, the following relevant facts are found.

   
   

2. By its Administrative Complaint dated September 17, 1981, Petitioner seeks to suspend, revoke or take other disciplinary action against the Respondent as licensee and against his licenses as a certified general contractor and a registered general contractor based on the fact that "he was acting in the capacity of a contractor under a name other than as it was issued" in violation of Section 489.129(1)(g) , Florida Statutes (1979), and also in violation of Section 489.129(1)(j) Florida Statutes (1979) to wit: Sections

   489.119(2) and (3) in that he failed to properly qualify a company under which he was doing business. 1/

   
   

3. Documentary evidence introduced revealed that Respondent was first licensed as a registered general contractor in June of 1968 and was issued license No. RG0000195. During January of 1973, the license was changed to reflect International General Contractors, Inc. In June of 1977 a Change of Status application was submitted requesting the subject license be changed to reflect an individual status as well as a reinstatement. That license had been delinquent since July 1, 1975. The application was approved, processed and issued on an active status to Jose Milton, Individual. The subject license is delinquent as of July 1, 1981, and a Change of Status application requesting reinstatement had not been submitted to Petitioner as of September 23, 1982. Additionally, the records reveal that Jose Milton took and passed a state certification examination for general contractors in May of 1972. License No. CGC003859 was issued to Jose Milton, International General Contractors, Inc., in August of 1972. As of September 23, 1982, the subject license is active and issued for the 1981-83 licensing period; however, the certificate of issuance on file for that license expired effective October 1, 1981. Petitioner therefore considers the subject license invalid until Jose Milton has submitted evidence of general liability coverages as required (Petitioner's Exhibit No. 1).

   
   

4. On September 7, 1979, Joseph Enterprises and Joseph Santa Maria entered into a Deposit Receipt and Sales Contract for the sale and purchase of a townhouse located at 19635 West Lake Drive, Miami, Florida. A certificate of occupancy was issued for the townhouse on approximately May 6, 1980. Respondent is not a signator to the subject Deposit Receipt and Sales Contract (Petitioner's Exhibit No. 2).

   
   

5. According to Mr. Santa Maria, there was no construction on the subject site at the time he entered into the Deposit Receipt and Sales Contract with Joseph Enterprises on September 7, 1979. Respondent, on the other hand, takes the position that construction had in fact commenced on September 7, 1979, and that the permits for the townhouse for which Mr. Santa Maria agreed to purchase had been pulled by him on behalf of another entity that he owned, International General Contractors, Inc.

   
   

6. In the subdivision in which Mr. Santa Maria purchased his townhouse, Respondent is the developer of a townhouse project referred to as Royal Singapore Lake which consists of some 174 townhouses. The permits for the construction of these townhouses were pulled by Jose Milton in the name of a construction company that he owned, International General Contractors, Inc., during April of 1978. As stated, Respondent has qualified International General Contractors. The plans, as approved by the Dade County building department, and the necessary building permits were posted at the construction site by International General Contractors (TR 47-48).

   
   

7. Joseph Enterprises is a fictitious name for Jose Milton. The Respondent owns the property on which the townhouses are built and that property is registered under the fictitious name, Joseph Enterprises. That fictitious name is properly registered in Dade County and with the Secretary of State (TR 48-49).

   
   

8. Respondent takes the position that Joseph Enterprises is not an entity through which he is doing contracting but rather it is merely "like qualifying [himself] because I am Joseph Enterprises." Finally, Respondent reiterated that the "Santa Maria building" was nearly completed at the time that the sales

   contract, in evidence herein, was signed. In support thereof, Respondent proffered a flood insurance policy dated May 29, 1979, covering the subject property. A premium payment of $152 per annum was paid for the flood policy. (Respondent's Exhibit No. 1).

   
   

9. As stated, Respondent owns the construction company known as International General Contractors. International General Contractors is a qualified contractor, having been so qualified by Respondent, Jose Milton. According to Respondent, everybody is aware that he is responsible for the property generally known as Royal Singapore Lake. (TR 54). Concluding, Respondent takes the position that he was not even required to register Joseph Enterprises inasmuch as he is a licensed, registered architect in the State of Florida since 1953 (file No. AR0003327) and is therefore exempt from the registration requirements contained in Chapter 489, Florida Statutes.

   
   

   CONCLUSIONS OF LAW

   
   

10. The Division of Administrative Hearings has jurisdiction over the subject matter and the parties to this action. Section 120.57(1), Florida Statutes.

    
    

11. The parties were duly noticed pursuant to the notice provisions of Chapter 120, Florida Statutes.

    
    

12. The authority of the petitioner is derived from Chapter 489, Florida Statutes.

    
    

13. Respondent, a licensed general contractor, is subject to the disciplinary guides set forth in Chapter 489, Florida Statutes.

    
    

14. Insufficient evidence was offered to establish that the Respondent, Jose Milton, used Joseph Enterprises, Inc., as the entity through which he was engaged in his construction activities. What the evidence herein reveals is that the Respondent engaged in his construction activities under the name of International General Contractors, an entity which is qualified. Section 489.119(2), Florida Statutes, only prohibits the acts here complained of "if the applicant proposes to engage in contracting as a partnership etc "

Likewise, Section 489.129(1)(g) , Florida Statutes, subjects a licensee to disciplinary proceedings where such licensee is "acting in the capacity of a contractor under any certificate or registration issued hereunder . . ." There was no competent and substantial evidence adduced herein that the Respondent so engaged in contracting. All of Respondent's contracting activities were conducted through the entity, International General Contractors, Inc., which was lawfully qualified during times relevant. For these reasons, there has been no showing herein that Respondent failed in any material respect to comply with the provisions of Chapter 489, Florida Statutes, as is more particularly sea forth in Section 489.129(1)(j), Florida Statutes. Based thereon, 1 shall recommend that the Administrative Complaint filed herein be dismissed.

RECOMMENDATION

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

RECOMMENDED that the Administrative Complaint filed herein against Respondent, Jose Milton, be DISMISSED.

RECOMMENDED this 30th day of November, 1982, in Tallahassee, Florida.

JAMES E. BRADWELL, 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 30th day of November, 1982.

COPIES FURNISHED:

Stephanie Daniel, Esquire

130 North Monroe Street Tallahassee, Florida 32301

Robert D. Korner, Esquire Korner & O'Brien

4790 Tamiami Trail (SW 8th Street) Coral Gables, Florida 33134

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

================================================================= AGENCY FINAL ORDER

=================================================================

STATE OF FLORIDA

DEPARTMENT OF PROFESSIONAL REGULATION CONSTRUCTION INDUSTRY LICENSING BOARD

DEPARTMENT OF PROFESSIONAL REGULATION,

Petitioner,

vs. CASE NO. 5223

DOAH CASE NO. 82-1635

JOSE MILTON,

Respondent.

/

ORDER

Respondent, Jose Milton, holds Florida license Nos. RG 0000195 and CG 0003859 as a registered general and certified general contractor. Petitioner filed an Administrative Complaint seeking suspension, revocation, or other disciplinary action against the license.

Respondent requested a formal hearing and one was held before the Division of Administrative Hearings. A recommended Order has been forwarded to the Board pursuant to 120.57(1), F.S.

The Construction Industry Licensing Board met on May 12, 1983, in Miami, Florida, to take final agency action. The Petitioner was represented by Edward Hill, Jr., Esquire The Respondent was represented by Robert D. Korner, Esquire The Board has reviewed the entire record in the case.

FINDINGS OF FACT

The Board grants the exceptions filed by the Petitioner. The Hearing Officer misapprehended the facts and the law, and made findings for which there was no competent substantial evidence. The Board makes additional findings of fact based upon the undisputed record and Respondent's admissions in it.

Certain statements made in the Recommended Order which set out the complainant's and Respondent's positions, but make no findings, are omitted.

By its Administrative Complaint dated September 17, 1981, Petitioner seeks to suspend, revoke or take other disciplinary action against the Respondent as licensee and against his licenses as a certified general contractor and a registered general contractor based on the fact that "he was acting in the capacity of a contractor under a name other than as it was issued" in violation of Section 489.129(1)(g), Florida Statutes (1979), and also in violation of Section 489.129(1)(j), Florida Statutes (1979), to wit: Sections 489.119(2) and

(3) in that he failed to properly qualify a company under which he was doing business.

Documentary evidence introduced revealed that Respondent was first licensed as a registered general contractor in June of 1968 and was issued license No.

RG0000195. During January of 1973, the license was changed to reflect international General Contractors, Inc. In June of 1977 a Change of Status application was submitted requesting the subject license be changed to reflect an individual status as well as a reinstatement. That license had been delinquent since July 1, 1975. The application was approved, processed and issued on an active status to Jose Milton, individual. The subject license is delinquent as of July 1, 1981, and a Change of Status application requesting reinstatement had not been submitted to Petitioner as of September 23, 1982.

Additionally, the records reveal that Jose Milton took and passed a state certification examination for general contractors in May of 1972. License No. CG C003859 was issued to Jose Milton, international General Contractors, Inc., in August of 1972. As of September 23, 1982, the subject license is active and issued for the 1981-83 licensing period; however, the certificate of issuance on file for that license expired effective October 1, 1981. Petitioner therefore considers the subject license invalid until Jose Milton has submitted evidence of general liability coverages as required (Petitioner's Exhibit No. 1).

On September 7, 1979, Joseph Enterprises and Joseph Santa Maria entered into a Deposit Receipt and Sales Contract for the sale and purchase of a townhouse located at 19635 West Lake Drive, Miami, Florida. A certificate of occupancy was issued for the townhouse on approximately May 6, 1980.

In the subdivision in which Mr. Santa Maria purchased his townhouse, Respondent is the developer of a townhouse project referred to as Royal Singapore Lake which consists of some 174 townhouses. The permits for the construction of these townhouses were pulled by Jose Milton in the name of a construction company that he owned, international General Contractors, Inc., during April of 1978. As stated, Respondent has qualified International General Contractors. The plans, approved by the Dade County building department, and the necessary building permits were posted at the construction site by International General Contractors. (TR 47-48).

Respondent admitted in the record that Joseph Enterprises was a partnership. The Respondent owns the property on which the townhouses are built and that property is registered under the fictitious name, Joseph Enterprises.

That fictitious name is properly registered in Dade County and with the Secretary of State. (TR 48-49).

Under the terms of the Deposit Receipt and Sales contract between Respondent, while doing business as Joseph Enterprises, and Joseph Santa Maria, Joseph Enterprises agreed to construct a townhouse for Santa Maria upon Lot 4, Block 29 of Royal Singapore Lake, Fourth Section, within one hundred eighty days of the contract date. (See Petitioner's Exhibit Number 2). Respondent admitted signing the contract. The price to be paid was $89,900.00.

Under the terms of said contract, it was agreed that final inspection by a Metropolitan Dade County Building Inspector would be deemed completion of construction of said townhouse. (See Petitioner's Exhibit Number 2).

The construction of the townhouse was not completed until May 16, 1980, as evidenced by the issuance of a Certificate of Completion on May 16, 1980, by the Metropolitan Dade County Building and Zoning Department. The final building inspection occurred on May 16, 1980.

Respondent has been given sufficient opportunity to qualify Joseph Enterprises. Respondent was first contacted by Inv. Patricia C. Simon regarding the requirement that Joseph Enterprises be qualified with the Construction industry Licensing Board, prior to September 1979. On July 14, 1982, a letter was sent to Respondent by the Department of Professional Regulation, at the address which Respondent represented to the Construction industry Licensing Board as being Respondent's address for licensing purposes. Said letter provided that Respondent was to properly qualify Joseph Enterprises with the Construction industry Licensing Board within 20 days of receipt of said letter. Shortly thereafter, Respondent contacted Stephanie Daniel, Attorney for Petitioner, regarding the necessity of qualifying Joseph Enterprises. Despite the opportunities provided above, Respondent has continually refused and/or failed to qualify Joseph Enterprises with the Construction industry Licensing Board. (See transcript, pages 31 and 57, and Petitioner's Exhibit numbers 5 and 7).

CONCLUSIONS OF LAW

These findings establish that Respondent contracted through a partnership, Joseph Enterprises, to build a townhouse for Joseph Santa Maria for compensation. Joseph Enterprises had not, and has not, been properly qualified under the terms of Section 489.119, Florida Statutes, to engage in contracting. This violation is consequently a violation of Section 489.129(1)(j), Florida Statutes.

Since the Respondent was otherwise licensed as a contractor, he is guilty of acting in the capacity of a contractor under a certificate of registration in a name other than the certificate holder, a violation of Section 489.129(1)(g), Florida Statutes.

It is therefore ORDERED that Respondent, Jose Milton, pay a fine of five hundred dollars. It is further ORDERED that the Respondent's licenses are SUSPENDED until he has properly qualified Joseph Enterprises.

DONE AND ORDERED in Jacksonville, Florida, this 2nd day of June, 1983.

FLORIDA CONSTRUCTION INDUSTRY LICENSING BOARD

Henry Bachara, Chairman

Docket for Case No: 82-001635

Orders for Case No: 82-001635