STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF PROFESSIONAL )

REGULATION, Construction Industry ) Licensing Board, )

)

Petitioner, )

)

vs. ) CASE NO. 82-2628

)

FRANK H. SUESZ, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, Sharyn L. Smith, held a formal hearing in this case on February 8, 1983, in Miami, Florida. The following appearances were entered:

APPEARANCES

For Petitioner: Michael J. Cohen, Esquire

Suite 101 Kristin Building

2715 East Oakland Park Boulevard Ft. Lauderdale, Florida 33306

For Respondent: Craig Donoff, Esquire

DONOFF & KERN, P.A.

Amerifirst Bldg., Third Floor 18301 Biscayne Boulevard

North Miami Beach, Florida 33160

The issue for determination at the final hearing was whether the Respondent Frank H. Suesz, should be disciplined by the Petitioner Department of Professional Regulation Construction Industry Licensing Board, for allegedly violating Sections 489.129(1)(j) and 489.127(1)(d), Florida Statutes, by giving false information to the Board when applying for his contractors certificate and Section 455.227(1)(e), Florida Statutes, by obtaining his certificate through the material misrepresentation of material facts.

At the final hearing, the Petitioner presented the testimony of Patricia C. Simon, Investigator for the Department of Professional Regulation, Frank H. Suesz, the Respondent, and Richard Spinnenweber, William E. Whiteman and James

1. Laria, the President and employees of Steel Systems Construction Company. The Respondent Frank H. Suesz testified on his own behalf. Petitioner's Exhibits 1-4 and Respondent's Exhibits 1, 2 and 4 were admitted into evidence.

   
   

   Proposed Recommended Orders containing findings of fact have been submitted by the parties and considered in the preparation of this Recommended Order.

   When the parties' findings of fact were consistent with the weight of the credible evidence introduced at final hearing, they have and are reflected in

   this Recommended Order. To the extent that the findings were not consistent with the weight of the credible evidence, they have been either rejected, or when possible, modified to conform to the evidence. Additionally, proposed findings which were subordinate, cumulative, immaterial or unnecessary have not been adopted.

   
   

   FINDINGS OF FACT

   
   

   1. The Respondent Frank H. Suesz is a licensed general contractor having been issued certificate number CG C020463.

      
      

   2. On July 21, 1981, the Respondent Suesz submitted an application to the Petitioner Department of Professional Regulation to take the certified contractors' examination as a general contractor. On the application, the Respondent Suesz stated that he had four (4) years of construction experience, one (1) year of on-the-job-supervisory experience, and some experience in the construction of buildings in excess of three(3) stories in height.

      
      

   3. The Respondent's work experience' was verified by Ethel C. Douglas, his mother-in-law and a building owner. Douglas' verification on the Respondent's application was notarized.

      
      

   4. The experience claimed by the Respondent on his application involved his prior position with Steel Systems Construction Company, a seller and erector of pre-engineered metal buildings. Steel Systems is owned by Richard Spinnenweber, who is also the Respondent's cousin and the complainant in this case. Steel Systems holds the franchise for American Steel Buildings while the Respondent's company, ABCO Construction, Inc., has acquired the franchise for Pre-Engineered Steel Buildings. Since the Respondent's resignation from Steel Systems, his relationship with his cousin has been anything but cordial. The Respondent and Spinnenweber have engaged in litigation concerning the termination of their former relationship and are now active business competitors through their respective companies. 1/

      
      

   5. The Respondent's company sells and erects pre-engineered, prefabricated steel buildings that are built in a factory, shipped to the job site and erected. One witness for the Petitioner analogized the construction of these buildings to "erector sets". (See Tr. at 43)

      
      

   6. Since being certified in 1981, the Respondent's company, ABCO Construction, Inc. has successfully completed approximately 40 construction projects including a 45,000 foot roof for Pan Am at Miami International Airport, a 10,000 square foot marina warehouse in Key Largo, and has worked for the U.S. Customs Service and the Air Force. No evidence was presented that any of the Respondent's jobs completed since he became certified, were substandard or present a threat to the public health, safety and welfare. Permits were pulled on these projects and building inspections were passed when required.

      
      

   7. Prior to moving to Florida, the Respondent Suesz had varied construction experience which including supervising the construction of building additions, a shipping storage warehouse and a factory for Beckley Perforating Company, which is headquartered in Garwood, New Jersey. This testimony is corroborated by a letter dated May 13, 1982, from Frank P. Marano, President of Beckley, which also noted the Respondent's ". . .unusual competency in all areas of responsibility as to construction, maintenance and expansion." [See Petitioner's Exhibit 3(x).]

   8. Additionally, the Respondent has some construction experience in excess of three stories, which dates from his work with his father on apartment buildings located out of state. The extent of the Respondent's experience which dates from the 1940s, is set forth in detail in Respondent's Exhibit 2.

      
      

   9. Although his position at Steel Systems was primarily sales, the Respondent Suesz also worked in the field when necessary. 2/

      
      

   10. While employed by Steel Systems, the Respondent supervised construction of two large dock roofs in 1978 and 1979, plus three buildings in 1980 and 1981 for the Homestead Tomato Packing Company, Inc. By letter dated May 13, 1982, Rosario Strano, company owner, commended the Respondent for his work and stated that he intended ". . .to negotiate with him for all future requirements for buildings, dock roofs, etc." [Petitioner's Exhibit 3(y).]

       
       

   11. In early 1989, the Respondent Suesz built an addition to the Hialeah factory of Brice-Southern, Inc. His supervision of the project included pouring and finishing the floor slab. Philip H. Brice recommended the Respondent's work via letter dated May 13, 1982, and stated ". . .that he would give him the opportunity to do our future requirements." Petitioner's Exhibit 3(z).]

       
       

   12. According to Gerald Antel, Trustee, Sunshine Skateway, the Respondent supervised the construction of a $250,000 roller rink. [Petitioner's Exhibit 3(aa).]

       
       

   13. Finally, in late 1980 and 1981, the Respondent supervised construction of a 16,800 square foot building for Woal Wholesale Plumbing Supply, Inc. His work on this project was observed and recommended by Randy S. Woal. [Petitioner's Exhibit 3(bb).]

       
       

       CONCLUSIONS OF LAW

       
       

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

       
       

   15. By Administrative Complaint dated August 26, 1982, the Respondent is charged with violating Sections 489.129(1)(j), 489.127(1)(d), 489.129(1)(c) and 455.227(1)(e), Florida Statutes. Pursuant to Section 489.129(1), Florida Statutes, the Petitioner Department of Professional Regulation, Construction Industry Licensing Board is empowered to discipline a licensee found guilty of, inter alia, the following acts:

       
       

       (c) Violation of chapter 455.

       (j) Failure in any material respect to comply with the provisions of this act.

       
       

       Section 489.127(1), Florida Statutes, prohibits a person from, inter alia, giving false or forged evidence to the Board or a member thereof for the purpose of obtaining a certificate or registration. Additionally, Section 455.227(1)(e), Florida Statutes, authorizes Boards within the Department of Professional Regulation to impose discipline against a licensee found to have obtained a license by fraud or material misrepresentation of a material fact.

       
       

   16. A careful examination of Section 489.127, Florida Statutes reveals that it is generally directed toward the unlawful activities of unlicensed persons who attempt to perform acts or hold themselves out as licensees. Section 489.127(2), Florida Statutes, makes such conduct a first degree

       misdemeanor. While Sections 489.127(1)(a)-(c) and (e)-(f), Florida Statutes, clearly were intended to prohibit the unlawful activities of any unlicensed persons, Section 489.127(1)(d), Florida Statutes, is ambiguous in its proscription. However, since interpreting Section 489.127(1)(d), Florida Statutes, to apply to licensees is inconsistent with the general statutory scheme of Section 489.127, Florida Statutes, under the rule of statutory construction known as ejusdem generis, Section 489.127(1)(d), Florida Statutes, should be construed consistently with the other provisions of Section 489.127, Florida Statutes, and be found inapplicable to licensed contractors. 3/

       
       

   17. Pursuant to Sections 489.129(1)(c) and 455.227(1)(e), Florida Statutes, which clearly empower the Board to impose discipline against a certificate holder, the Respondent Suesz is charged with obtaining his certificate by fraud or material misrepresentation of a material fact. In disciplinary proceedings where a regulatory agency seeks to discipline a licensee in a manner substantially affecting the practice of his business or profession, the Petitioner must prove the allegations of the Administrative Complaint by clear and convincing evidence. Gans v. Department of Professional and Occupational Regulation, 390 So.2d 107 (Fla. 3d DCA 1980); Walker v. Board of Optometry, 322 So.2d 612 (Fla. 3d DCA 1980); Reid v. Florida Real Estate Commission 188 So.2d 846 (Fla. 2d DCA 1966). Such evidence must be as substantial as its consequences. Bowling v. Department of Insurance, 394 So.2d 165, 172 (Fla. 1st DCA 1981).

       
       

   18. The weight of credible evidence in this case fails to establish that the Respondent Suesz obtained his license by fraud or material misrepresentation of a material fact. The work experience which was furnished by the Respondent Suesz, verified by Ethel Douglas, and accepted by the Board in order to enable him to sit for the contractors exam, listed his experience from April 25 to the present as Vice-President and Manager of Steel Systems, and the type of buildings worked on to include warehouses, factories, stores and offices (to four stories). While not a model of clarity, this information is neither fraudulent nor does it materially misrepresent the facts established at final hearing. Although the Respondent's mother-in-law verified his experience, nothing has been introduced to show that this verification was fraudulent or otherwise prohibited by law. Due to the antagonistic relationship that existed between the Respondent and his former employer, it is highly unlikely that anyone at his former place of employment would have assisted the Respondent in obtaining his contractors certificates. Under such circumstances, the Respondent's use of his mother-in-law for verification of his work experience, while obviously not ideal, is nonetheless understandable.

RECOMMENDATION

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

That the Administrative Complaint filed against the Respondent Frank H. Suesz, be dismissed.

DONE and ORDERED this 15th day of August, 1983, in Tallahassee, Florida.

SHARYN L. SMITH

Hearing Officer

Division of Administrative Hearings 2009 Apalachee Parkway

Tallahassee, Florida 32301

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 15th day of August, 1983.

ENDNOTES

1/ Although Spinnenweber testified that he and the Respondent have not been competitors, see Tr. at 36, this testimony is clearly incorrect. For example, on a job for Pan Am, Spinnenweber sent a representative of the airline a letter dated September 7, 1982, Respondent's Exhibit 3, with enclosure, which reiterated the problems that ABCO Construction Company had with DPR due to its failure to meet ". . .minimum qualifications to receive a General Contractors' License. . ." and urged that Steel Systems be considered for the job instead.

2/ The Respondent's testimony concerning his experience at Steel systems was corroborated by the letters of recommendation furnished by the owners or principals of various projects. This information which was supplied by unbiased third parties is highly persuasive, especially when contrasted with the testimony of the Petitioner's main witnesses, all of whom have an interest either personal or financial, in the outcome of this proceeding.

3/ Although not raised by counsel, such a construction also avoids the problem of whether Section 489.127(1)(d), Florida Statutes can be applied in this case since it was apparently not in existence on April 23, 1981, when the Respondent's application was filed. Compare, Section 58, Chapter 80-406, effective October 1, 1980, which apparently deleted Section 489.127(1)(d), Florida Statutes, from the 1980 Laws of Florida, and Section 370, Chapter 81- 259, effective July 2, 1981, which reenacted Section 489.127(1)(d), Florida Statutes.

COPIES FURNISHED:

Michael J. Cohen, Esquire Suite 101 Kristin Building

2715 East Oakland Park Boulevard Fort Lauderdale, Florida 33306

Craig Donoff, Esquire DONOFF & KERN, P.A.

18301 Biscayne Boulevard Amerifirst Bldg., Third Floor North Miami Beach, Florida 33160

James Linnan, Executive Director Construction Industry Licensing

Board

Post Office Drawer 2 Jacksonville, Florida 32202

Frederick Roche, Secretary Department of Professional

Regulation

Old Courthouse Square Building

130 North Monroe Street Tallahassee, Florida 32301

Docket for Case No: 82-002628

Orders for Case No: 82-002628