STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF PROFESSIONAL )

REGULATION, CONSTRUCTION )

INDUSTRY LICENSING BOARD, )

)

Petitioner, )

)

vs. ) CASE NO. 83-413

)

ROBERT O. BARTHOLOMEW, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, K. N. Ayers, held a public hearing in the above- styled case on June 16, 1983, at Tampa, Florida.

APPEARANCES

For Petitioner: Douglas A. Shropshire, Esquire

Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32301

For Respondent: Robert O. Bartholomew, pro se

Post Office Box 9002 Tampa, Florida 33675

By Administrative Complaint filed November 24, 1982, the Department of Professional Regulation, Petitioner, seeks to revoke, suspend, or otherwise discipline the license of Robert O. Bartholomew as a registered general and registered residential contractor. As grounds there for it is alleged that Respondent pulled a building permit in Pasco County to construct an addition on a mobile home owned by Betty Valdez when he was not the contractor on the job but only acted as subcontractor, that the permit failed to include a roofing permit when one was required, and that Respondent did not qualify the company contracting for the work, Atlas Associates, Inc.

At the hearing Petitioner called three witnesses, Respondent called three witnesses, including himself, and nine exhibits were admitted into evidence.

There was little dispute as to the facts here involved.

Proposed findings submitted by Petitioner not included herein were not supported by the evidence or were deemed immaterial to the results reached.

FINDINGS OF FACT

1. Robert O. Bartholomew is registered as a general contractor and as a residential contractor holding licenses No. RG0025081 and No. RR0035491. Be was so registered at all times here relevant.

   
   

2. Neither Carl Robinson nor his company, Atlas Associates, Inc., is registered as a building contractor in Pasco County.

   
   

3. Robinson, acting for Atlas Associates, Inc., entered into a contract with Betty Valdez to construct an addition to her mobile home in Lutz, Pasco County, Florida, and requested Respondent to pull the building permit as neither Robinson nor Atlas Associates, Inc., is registered in Pasco County.

   
   

4. Respondent pulled the permit, as contractor, for the work to be done on Valdez' home although he was not a party to the contract. Both Robinson and Respondent testified they worked under a verbal arrangement as partners in several projects; however, Respondent has no ownership interest in Atlas Associates, Inc.

   
   

5. The work was started by Robinson's foreman, Hubbard, but after a short period on the job Hubbard was fired and Respondent took over the construction. Disputes arose between Ms. Valdez and the contractor and the work was not completed by Atlas Associates, Inc.

   
   

6. Part of the contract provided for a roof over the existing roof on the trailer. Pasco County requires this work, like electrical and plumbing, to be done by one licensed in that field. No licensed roofer was used and no permit to have such work done by a licensed roofer was pulled.

   
   

7. Following unsatisfactory termination of the contract between Atlas and Valdez, liens were filed by Atlas Associates, Inc., and Respondent against Valdez' property and countersuits were instituted by Valdez before both sides agreed to drop their claims. Respondent's contention that Ms. Valdez' agreement to drop all claims in settlement of the dispute somehow precludes this action, is without merit.

   
   

8. In a separate proceeding Robinson was disciplined by the Board for his violations of the Construction Industry Licensing Law in contracting with Ms. Valdez when not properly licensed to do so.

   
   

   CONCLUSIONS OF LAW

   
   

9. The Division of Administrative Hearings has jurisdiction over the parties to, and the subject matter of, these proceedings.

   
   

10. Section 489.129, Florida Statutes, provides in pertinent part:

    
    

    1. The board may revoke, suspend,

       or deny the issuance or renewal of the certificate or registration of a con- tractor or impose an administrative fine not to exceed $1,000, place the contractor on probation, reprimand or censure, a contractor if the contractor is found guilty of any of the following acts:

       1. Aiding or abetting any uncertified

          or unregistered person to evade any provi- sion of this act.

       2. Knowingly combining or conspir- ing 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. When a certificate holder or registrant allows his certificate or registration to be

          used by one or more companies without having any active participation in the operations, management, or control of said companies, such act constitutes prima facie evidence of an intent to evade the provisions of this act.

       3. Acting in the capacity of a con- tractor under any certificate or regis- tration issued hereunder except in the name of the certificate holder or registrant

          as set forth on the issued certificate or registration, or in accordance with the personnel of the certificate holder or registrant as set forth in the appli-

          cation for the certificate or registration, or as later changed as provided in this act.

          (j) Failure in any material respect

          to comply with the provisions of this act.

          
          

11. Respondent contends that his violations of the above- quoted provisions were not willful but only through ignorance, and that he did not understand the Pasco County Code to require a roofing permit for Ms. Valdez' roof. As a contractor Respondent is presumed to know both the building code provisions applicable to his work and the laws regulating his registration. While Respondent may not have actually known that a roofing contractor was required for the work on the Valdez' contract, he had a duty, as the contractor under whose license the permit was pulled, to know what was required. Failure to ascertain what one has a duty to know is tantamount to willfulness.

    
    

12. From the foregoing it is concluded that the evidence is clear and convincing that Robert O. Bartholomew is guilty of the violations as alleged. It is

RECOMMENDED that Robert O. Bartholomew pay an administrative fine of five hundred dollars ($500) and that his licenses as general and residential contractor be suspended until said fine has been paid.

ENTERED this 15th day of July, 1983, at Tallahassee, Florida.

K. N. AYERS, 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 15th day of July, 1983.

COPIES FURNISHED:

Douglas A. Shropshire, Esquire Department of Professional

Regulation

130 North Monroe Street Tallahassee, Florida 32301

Robert O. Bartholomew Post Office Box 9002 Tampa, Florida 33674

James Linnan, Executive Director Construction Industry Licensing Board

Department of Professional Regulation

Post Office Box 2 Jacksonville, Florida 32202

Fred M. Roche, Secretary Department of Professional

Regulation

130 North Monroe Street Tallahassee, Florida 32301

Docket for Case No: 83-000413

Orders for Case No: 83-000413