STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF PROFESSIONAL )

REGULATION, CONSTRUCTION )

INDUSTRY LICENSING BOARD, )

)

Petitioner, )

)

vs. ) CASE NO. 82-1854

)

ROBERT W. KIRK, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a formal administrative hearing was conducted in this matter on March 1, 1983, in Titusville, Florida. The following appearances were entered: Michael E. Egan, Tallahassee, Florida, appeared on behalf of the Petitioner, Department of Professional Regulation; and William H. Gauldin, Titusville, Florida, appeared on behalf of the Respondent, Robert W. Kirk.

On or about May 7, 1982, the Department of Professional Regulation filed an Administrative Complaint against the Respondent. The Respondent requested a formal administrative hearing, and the Department forwarded the matter to the office of the Division of Administrative Hearings on July 6, 1982. The final hearing was originally scheduled to be conducted on October 14, 1982. The Respondent filed a Motion for Continuance which was granted and the hearing was rescheduled to be conducted on January 10, 1983. Petitioner filed a Motion in Limine seeking authority to use a deposition that had not yet been taken in lieu of testimony at the hearing. The motion was denied. Respondent filed a Motion for Continuance, and the Petitioner joined in the motion because of the ruling on the Motion in Limine. The matter was then rescheduled to be conducted as set out above.

At the hearing, the Department called the following witnesses: Robert W. Kirk, the Respondent; Vernon E. Crosby, a painting and decorating contractor; Paul Davis, the building official for the City of Titusville, Florida; Michael

1. McShane, an investigator employed with the Department; Robert L. Smith, an investigator employed with the Department; Edward G. Tindall, a roofing worker who had a business relationship with the Respondent; Elizabeth Jones, the manager of an apartment complex; David E. Lawhorn, a roofing worker who has had a business relationship with the Respondent; Frank Brockett, the trustee of property owned by Florida Power and Light Corporation; and Gwen O. Mills, a property owner in Titusville, Florida. The Respondent testified as a witness on his own behalf and called David Lawhorn as an additional witness. Petitioner's Exhibits 1 through 10 and Respondent's Exhibits 1, 2 and 3 were offered into evidence and received. Petitioner's Exhibit 11 was marked for identification, but was not offered into evidence and did not become a part of the record.

   
   

   The parties have submitted posthearing legal 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 better weight of the evidence, irrelevant to the issues, or legally erroneous.

   
   

   ISSUE

   
   

   The ultimate issues to be resolved in this proceeding are whether the Respondent has committed violations of statutes relating to licensed contractors and, if so, the appropriate penalty that should be imposed. The Administrative Complaint is in six counts. The first five counts basically allege that the Respondent aided and abetted unlicensed persons to practice contracting by allowing these persons to use his license in order to obtain building permits to do roofing work. In Count Six, it is charged that the Respondent has engaged in continuing acts of misconduct. At the hearing, the Department dismissed allegations that the Respondent violated provisions of local building codes.

   The Respondent denies all of the allegations.

   
   

   FINDINGS OF FACT

   
   

   1. The Respondent has been certified by the Construction Industry Licensing Board as a general contractor (License No. CG C011050) and as a roofing contractor (License No. CC C001794). The Respondent also holds a real estate broker's license and a mortgage broker's license. The Respondent has developed apartment complexes, and housing and business developments. The Respondent is not presently active in roofing contracting, but he was during the period from 1979 through 1981. Be has been in business in Florida since 1967. The Respondent had qualified Kirk, Inc., with the Construction Industry Licensing Board to do general and roofing contracting. The Respondent is president of Kirk, Inc. The Respondent did not qualify any other entities to do contracting work under either of his licenses during the times material to this proceeding.

      
      

   2. For approximately eighteen months during 1979 and 1980, the Respondent had a business relationship with Edward G. Tindall. Tindall had worked for the Respondent'5 father and was having financial difficulties. Tindall had some experience in the roofing business, and the Respondent sought to use Tindall to manage Respondent's roofing contracting business. Tindall was to be paid a supervisory rate plus other fees. Tindall was to solicit roofing jobs; enter into contracts with customers on behalf of Kirk, Inc.; and perform the roofing jobs. Tindall was not licensed in any capacity by the Construction Industry Licensing Board, and he was therefore not authorized to obtain building permits from the City of Titusville, where most of the jobs were located. Tindall did not perform work in accordance with the agreement with Respondent. Instead, Tindall had stationery and business cards printed which were labeled "Tindall Roofing Company, a division of Kirk, Inc." When Tindall got a roofing job, he did not reduce it to contract on a Kirk, Inc., form as he was supposed to do. Rather, he operated on the basis of oral contracts. He advised personnel at Kirk, Inc., who were qualified to obtain building permits, that he had obtained the jobs, and building permits were secured. Thereafter, Tindall would typically tell Kirk, Inc., employees that the job had fallen through. In the meantime, Tindall completed the work, often using Kirk, Inc., equipment, supplies and workers, and kept the proceeds for himself.

      
      

   3. The Respondent did not become aware of Tindall's activities until sometime late in 1980. When he learned what Tindall was doing, the Respondent fired Tindall and another employee.

   4. In August, 1979, Tindall contracted to repair a roof at the Florida Power and Light Building in Titusville, Florida. Be advised Kirk, Inc., of the contract, and the qualified person at Kirk, Inc., obtained a permit from the City of Titusville to complete the work. Tindall then advised that the project had been cancelled and completed the work himself. The roof was not completed in accordance with Tindall's agreement with Florida Power and Light and was constructed in a manner contrary to the City of Titusville building code. The Respondent was unaware that this had occurred until sometime late in 1980.

      
      

   5. During September, 1979, Tindall contracted with Donald Klongerbo to reroof Klongerbo's home in Titusville, Florida. Tindall obtained a building permit by utilizing Kirk, Inc., employees, then advised that the contract had fallen through. Tindall then completed the work himself. The Respondent did not know that this had occurred until sometime late in 1980.

      
      

   6. During approximately October, 1979, Tindall contracted to repair a roof on a warehouse in Titusville, Florida, that was owned by B. S. Brown. The Respondent authorized Tindall to obtain a building permit from the City of Titusville for this one project in accordance with the City of Titusville code. Tindall then advised that the contract had fallen through and completed the work himself. The work was completed in a substandard manner, and the roof leaked. The Respondent did not learn that this had occurred until sometime late in 1980. He endeavored to repair the poor work that Tindall had performed.

      
      

   7. During June, 1980, Tindall contracted to repair the roof on a residence owned by Gwen O. Mills in Titusville, Florida. Tindall obtained a building permit from the City of Titusville by utilizing personnel at Kirk, Inc. After obtaining the permit, Tindall advised that the contract had fallen through and completed the work himself. The work was completed in a substandard manner and eventually needed to be completely redone. Respondent did not learn of this incident until late in 1980.

      
      

   8. During the investigation of this matter, Tindall gave a written statement which was reduced to writing and which he signed. The statement supports the version of the facts alleged in the Administrative Complaint. At the final hearing, Tindall gave testimony consistent with that version of the facts. On two other occasions, Tindall signed affidavits to a totally different effect. In one of them, he admitted that he obtained the building permits by making untrue statements to the Respondent and other personnel at Kirk, Inc. At the hearing, Tindall gave testimony which supports this version of the facts.

      In evaluating Tindall's testimony, due regard has been given to the conflicting affidavits that he signed, to the conflicting testimony that he gave at the hearing, and to his demeanor as a witness. It has been concluded that his testimony is utterly incredible and not worthy of being believed.

      
      

   9. During May, 1981, Vernon Crosby, who did business as Crosby Painting and Decorating, was performing work at an apartment complex owned by Hewitt Properties, Inc. The apartments are located in Titusville, Florida. Roofing repairs were necessary for several of the buildings. Crosby talked with David Lawhorn, an experienced roofing worker, about the project and, based on that discussion, gave an estimate of the expense to Hewitt Properties. Crosby was asked to perform the work. He hired Lawhorn to accomplish it. Neither Crosby nor Lawhorn is a licensed contractor, and neither was authorized to obtain building permits from the City of Titusville. Lawhorn commenced work without obtaining a permit. Upon learning that work was being undertaken without a

      permit, personnel of the City of Titusville promptly and properly stopped the work from proceeding further.

      
      

   10. After work was stopped by the City, Crosby contacted the Respondent about the problem. The Respondent agreed to obtain a building permit for the work. The permit was obtained, and Lawhorn completed the work as he had agreed with Crosby to do. The Respondent was never in contact with Lawhorn about this project. Lawhorn's work was not supervised either by the Respondent or by Crosby. The only input that the Respondent gave to the project was obtaining the building permit. Due to ambiguities in the testimony, it is impossible to glean how much the Respondent was paid, but it is apparent that he was compensated and that he did nothing to earn compensation except obtain a building permit.

       
       

   11. The Respondent testified that he considered Crosby the agent of the apartment owner. Be testified that he viewed himself as the contractor and Crosby as his super visor. He testified that Crosby was to supervise Lawhorn's work on Respondent's behalf. This version of the relationship has not been credited because it is not supported by she testimony of either Crosby or Lawhorn. Crosby and the Respondent had had business dealings in the past, and it appears that the Respondent obtained the permit in part as a helpful gesture to Crosby. It does not appear that the Respondent ever anticipated performing a roofing job at the apartment far complex. His motivation, instead, was to obtain a building permit to allow persons who could not otherwise obtain a permit (Crosby and Lawhorn) to perform the work.

       
       

   12. There is insufficient evidence to support a finding that the Respondent has been guilty of any continuing course of misconduct in the practice of contracting. The only misconduct that has been established is in connection with the obtaining of a single building permit.

       
       

       CONCLUSIONS OF LAW

       
       

   13. The Division of Administrative Hearings has jurisdiction over the parties and the subject matter of this proceeding.

       
       

   14. Counts One, Two, Three and Four of the Administrative Complaint all relate to the conduct of Tindall. The counts allege various statutory violations. The Department has failed to sustain the allegations. It was not the Respondent's intention that Tindall engage in projects on his own behalf. Instead, Tindall deceived the persons with whom he contracted and the Respondent. To the extent that the allegations of Counts One through Four are supported by the evidence, the evidence has not been credited.

       
       

   15. Count Five of the Administrative Complaint relates to the Respondent's relationship with Vernon Crosby. Sections 489.129(1)(e) and (f) , Florida Statutes, provide that the Construction Industry Licensing Board may take disciplinary action against a licensee if the licensee is found guilty 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 registration to be used by any

          uncertified or unregistered person with intent to evade the provisions of this act . .

          
          

          By obtaining a building permit that had the effect of allowing unlicensed persons to perform work that they could not otherwise have performed, the Respondent violated these provisions. Sections 489.129(1)(g) and (j) , Florida Statutes, provide that a licensee can be disciplined for contracting under a name other than his license or for failing to qualify a business as provided in Sections 489.119(2) and (3), Florida Statutes. A violation of these provisions has not been established. It does not appear that the Respondent had any intention of contracting in Crosby's name or in qualifying Crosby and Lawhorn as a business.

          
          

   16. In Count Six, it is alleged that the Respondent violated Section 489.129(1)(m), Florida Statutes, by engaging in a continuing course of misconduct. The allegations of this count have not been sustained.

RECOMMENDED ORDER

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

RECOMMENDED:

1. That a final order be entered by the Construction Industry Licensing Board dismissing Counts One, Two, Three, Four and Six of the Administrative Complaint filed against Robert W. Kirk.

   
   

2. That the Construction Industry Licensing Board enter a final order finding the Respondent guilty of violating the provisions of Sections 489.129(1)(e) and (f), Florida Statutes, as alleged in Count Five of the Administrative Complaint, and imposing an administrative fine against the Respondent in the amount of $1,000.

RECOMMENDED this 9th day of May, 1983, 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 9th day of May, 1983.

COPIES FURNISHED:

Michael E. Egan, Esquire Roberts, Egan & Routa, P.A. Post Office Box 1386 Tallahassee, Florida 32302

William H. Gauldin, Esquire Post Office Box 6333 Titusville, Florida 32780

Mr. James Linnan, Executive Director Construction Industry Licensing Board Department of Professional Regulation Post Office Box 2

Jacksonville, Florida 32202

Mr. Fred Roche Secretary

Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32301

Docket for Case No: 82-001854

Orders for Case No: 82-001854