STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

STATE OF FLORIDA, DEPARTMENT OF ) PROFESSIONAL REGULATION, FLORIDA ) CONSTRUCTION INDUSTRY LICENSING ) BOARD, )

)

Petitioner, )

)

vs. ) CASE NO. 82-2209

)

MICHAEL WAYNE SCOTT, )

)

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 October 7, 1982, in Deland, Florida. Petitioner's counsel has submitted a posthearing memorandum, including a proposed recommended order, which has been considered by me in preparation of this Recommended Order. To the extent that said memorandum is not incorporated herein, said proposed findings are deemed either irrelevant, immaterial or not otherwise supported by evidence or record.

APPEARANCES

For Petitioner: Michael Egan, Esquire

ROBERT, EGAN & POUTA, P.A.

Post Office Box 1386 Tallahassee, Florida 32302

For Respondent: Michael Wayne Scott, pro se

510 North Riverside Drive Edgewater, Florida 32032

ISSUE

The issue posed for decision herein involves a determination of an appropriate penalty for Respondent's alleged violation of Section 489.127(1)(d), Florida Statutes, which prohibits the giving of false or forged evidence to the Board for the purpose of obtaining a certificate. At the outset of the final hearing, the parties entered into an oral stipulation which will be set forth hereinafter in detail.

FINDINGS OF FACT

1. Based upon my observation of Respondent, the arguments of counsel, the posthearing memorandum and the entire record compiled herein, the following relevant facts are found.

2. By its Administrative Complaint signed July 1, 1982, Petitioner, Department of Professional Regulation, Florida Construction Industry Licensing Board, seeks to revoke Respondent's license to practice the profession of contracting and to impose a civil penalty based upon conduct set forth hereinafter. As stated, the below findings were admitted by Respondent in an oral stipulation read into the record compiled at the final hearing.

   
   

3. Respondent is a registered residential contractor having been issued license number RR0040021. Respondent's last known address is 510 North Riverside Avenue, Edgewater, Florida, 32032.

   
   

4. On August 13, 1981, Respondent applied to sit for the certified contractor's examination in order to become certified as a building contractor.

   
   

5. As part of the application for the certified contractor's examination described above, Respondent provided a "certificate in support of applicant's experience qualifications," which was sworn and subscribed to by Charles R. Cook, a foreman for Edwin Peck, Jr., a certified general contractor. In the "certificate in support of applicant's experience qualification," Cook stated that Respondent occupied the position of superintendent or foreman for Edwin Peck, Jr., from February 4, 1978, until May 1, 1979.

   
   

6. Respondent was employed by Edwin Peck, Jr., for two (2) weeks, working full-time and two (2) weeks working part-time in February of 1979, and for one

   (1) day in March of 1979. The affidavit of Mr. Cook was altered by Respondent.

   
   

7. As part of the application for the certified contractor's examination described above, Respondent included a letter signed by Joseph R. Gober, President of Florida Sun Control Products, Inc. In the letter, Gober stated that Respondent was employed by Florida Sun Control Products, Inc., as a superintendent from May, 1977, through January, 1978.

   
   

8. Respondent has never been employed by Florida Sun Control Products, Inc., as an employee; however, he did work with said company as an independent contractor, supervising construction activities.

   
   

9. Respondent, while admitting the above facts, considers that a revocation of his certificate is not warranted under the circumstances. Respondent points to the fact that he has not sought any contracting job in the private or residential areas, turning instead only to commercial ventures. Further, Respondent notes that no one has been injured by his misdeeds and that he has benefited from his past mistakes as admitted in this cause. Respondent considers that the imposition of a small civil (administrative) fine is ample punishment for his acts in connection with the filing of his application for certification.

   
   

   CONCLUSIONS OF LAW

   
   

10. The Division of Administrative Hearings has jurisdiction over the subject matter and the parties to this action. Chapter 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. Section 489.129(1)(j), Florida Statutes (1979), provides that the Department of professional Regulation may discipline contractors for failure to comply in a material respect with the provisions of Chapter 489, Florida Statutes. Section 489.127(1)(d), Florida Statutes, makes it unlawful for anyone to give false or forged evidence to the Construction Industry Licensing Board for the purpose of obtaining a certificate or registration. Respondent's activities as evidenced by the stipulation entered at the final hearing herein, constitutes a failure on Respondent's part to comply with the provisions of Chapter 489, Florida Statutes, as set forth and defined in Section 459.129(1)(j), Florida Statutes (1979).

RECOMMENDATION

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

RECOMMENDED:

That Respondent's license number RR0040021 be placed on probation for a period of dine (1) year and that an administrative fine in the amount of $250.00 be imposed.

RECOMMENDED this 2nd 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 2nd day of November, 1982.

COPIES FURNISHED:

Michael Egan, Esquire Post Office Box 1386

Tallahassee, Florida 32302

James Linnan, Executive Director

Michael Wayne Scott Florida Construction Industry

510 North Riverside Drive Licensing Board Edgewater, Florida 32032 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/CONSTRUCTION INDUSTRY LICENSING BOARD,

Petitioner,

vs. DPR Case No. 0021731

DOAH Case No. 82-2209

MICHAEL W. SCOTT, RR 0040021 N

Michael W. Scott Construction, Inc.

501 North Riverside Avenue Edgewater, Florida 32032,

Respondent.

/

FINAL ORDER

This matter came before the Construction Industry Licensing Board on January 14, 1983, in Key West, Florida. An administrative hearing held pursuant to Section 120.57(1), Florida Statutes, resulted in the issuance of a Recommended Order (attached hereto as Exhibit A) which was reviewed by the Board. Petitioner filed exceptions to said Order. Following a review of the Recommended Order, exceptions, and the complete record of the proceeding,

IT IS ORDERED

1. The findings of fact contained in the Recommended Order are approved and adopted and incorporated herein by reference.

   
   

2. The conclusions of law in the Recommended Order are approved and adopted and incorporated herein by reference.

   
   

3. The Recommendation in the Recommended Order is rejected as inappropriate under the circumstances. The Board accepts Petitioner's exceptions to said Recommendation.

THEREFORE

IT IS ORDERED and ADJUDGED that the registered residential contractor's license of the Respondent be and the same is hereby REVOKED.

DONE and ORDERED this 27th day of January, 1983.

FLORIDA CONSTRUCTION INDUSTRY LICENSING BOARD

JOHN HENRY JONES

Chairman

Docket for Case No: 82-002209

Orders for Case No: 82-002209