STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF PROFESSIONAL )

REGULATION, CONSTRUCTION )

INDUSTRY LICENSING BOARD, )

)

Petitioner, )

)

vs. ) CASE NO. 83-2419

)

NORMAN B. CLARK, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Bearings, by its duly designated Hearing Officer, William B. Thomas, held a formal hearing in this case on September 23, 1983, in Fort Lauderdale, Florida. No transcript was ordered. The parties requested 15 days to submit proposed findings of fact and conclusions of law. These were filed and have been considered. Where not adopted and incorporated herein, they were found to be irrelevant or immaterial, or not supported by the weight of the evidence, and have been rejected.

APPEARANCES

For Petitioner: Stephanie A. Daniel, Esquire

130 North Monroe Street Tallahassee, Florida 32301

For Respondent: Roger D. Haagenson, Esquire

Suite 601 Cumberland Building 800 East Broward Boulevard Fort Lauderdale, Florida 33301

By Administrative Complaint dated July 12, 1983, the Respondent was charged with violation of Section 455.227 (1)(a), Florida Statutes, by making a misleading, deceptive, untrue, or fraudulent representation in the practice of his profession; with violation of Section 489.129(1)(g) , Florida Statutes, by engaging in the business of contracting under a name other than on his certificate; and with violation of Section 489.129(1)(j), Florida Statutes, by engaging in the business of contracting under an inactive license, contrary to the provisions of Section 489.109(3), Florida Statutes

The Petitioner presented three witnesses: Wallace Norman, an investigator; and Barbara Gesino and Carol Glovan of the City of Hollywood Building Department. The Respondent testified on his own behalf and recalled as his witnesses Barbara Gesino and Carol Glovan. Seven exhibits were offered, six of which were received in evidence.

FINDINGS OF FACT

1. The Respondent is a certified general contractor holding license number CG C012556 issued by the State of Florida. Since June 30, 1979, this license was in an inactive status. The Respondent qualified Clark Sales & Service, Inc., with the Construction Industry Licensing Board.

   
   

2. On or about March 16, 1983, the Respondent went to the City of Hollywood Building Department to obtain a building permit for fence installation at 2029 Adams Street in the City of Hollywood.

   
   

3. In order to obtain such a permit in the City of Hollywood, the contractor or owner must first complete a permit application which must be approved by the Engineering Department for the Hollywood Building Department. Once the completed application is approved, it is submitted to the permit section for the City of Hollywood.

   
   

4. In order to pull permits in the City of Hollywood, a contractor must be either certified by the State of Florida, or the holder of a certificate of competency issued by Broward County, in the particular trade category. Either the contractor's state certificate or the county certificate of competency must be presented to the city permit section, which then issues the permit based upon the approved application.

   
   

5. The Respondent presented his general contractor's certificate to Barbara Gesino, who is the administrative assistant for the Hollywood Building Department, in order to obtain a certificate of competency so he could pull the building permit for the fence proposed to be erected at 2029 Adams Street in Hollywood.

   
   

6. The general contractor's certificate which the Respondent submitted to Barbara Gesino had been altered to reflect Clark Fence, Inc., as the company which the Respondent qualified. The Respondent's certificate had been further altered to reflect June 30, 1983, as the expiration date for the certificate, whereas the Respondent's certificate had expired on June 30, 1979. Further, the Respondent qualified Clark Sales & Service, Inc., only at the time he submitted the altered certificate to Barbara Gesino.

   
   

7. At no time did the Respondent qualify Clark Fence, Inc., with the Construction Industry Licensing Board. Clark Fence, Inc., was qualified by Donald Burke, who had been licensed as a specialty fence contractor in the City of Hollywood, but the certificate of competency issued to him by the City of Hollywood was delinquent.

   
   

8. Without a valid certificate of competency, Donald Burke could not obtain permits in the City of Hollywood.

   
   

9. On March 16, 1983, the Respondent obtained the building permit for erection of the fence at 2029 Adams Street in Hollywood. This permit showed Clark Fence as the contractor and was signed by the Respondent in the space designated for the owner, licensed contractor, or agent.

   
   

10. This permit was issued based upon an application signed by Donald Burke, whose certificate of competency was delinquent.

    
    

11. After the Respondent obtained this permit, Barbara Gesino asked him to come back to her office so that she could be certain that the paperwork was in

    order for Clark Fence, Inc., to obtain permits in the City of Hollywood. She prepared two City of Hollywood certificates of competency, one for the Respondent and the other for Donald Burke. The Respondent was instructed to take one of these certificates of competency to Donald Burke, who was to sign it and return it to the City of Hollywood Building Department.

    
    

12. The Respondent signed his certificate of competency while he was at the City of Hollywood Building Department. While he was there, Barbara Gesino copied his state certificate and returned it to him.

    
    

13. Later, when Barbara Gesino reviewed the photocopy of the Respondent's state certificate, she realized that this certificate had been altered, and filed a complaint with the Petitioner.

    
    

14. After the Respondent completed the erection of the fence for which the building permit was obtained, he received a letter from the City of Hollywood Building Department stating that the subject building permit had been cancelled.

    
    

    CONCLUSIONS OF LAW

    
    

15. The Division of Administrative Hearings has jurisdiction over the parties to and the subject matter of this case pursuant to Section 120.57(1), Florida Statutes, and Section 455.225(4), Florida Statutes.

    
    

16. The Construction Industry Licensing Board is empowered to revoke, suspend or otherwise discipline the certificate or registration of a contractor if he is found guilty of violating the following provisions of Section 489.129(1), Florida Statutes:

    
    

    (c) Violation of Chapter 455.

    (g) Acting in the capacity of a contactor under any certificate of registration issued hereunder except in the name

    of the certificate holder or registrant as set forth on the issued certificate or registration.

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

    
    

17. Section 455.227(1), Florida Statutes, provides in part:

    
    

    1. The board shall have the power to revoke, suspend, or deny the renewal of the license, or to reprimand, censure, or otherwise discipline a licensee, if the board finds that:

       1. The licensee has made misleading, deceptive, untrue, or fraudulent repre- senttions in the practice of his profes- sion . . .

          
          

18. License revocation proceedings are penal in nature. The prosecuting agency is required to prove its charges by competent, substantial evidence. See Florida Real Estate Commission v. Webb, 367 So.2d 201 (Fla. 1978); Brewer v. Insurance Commissioner and Treasurer, 392 So.2d 593 (Fla. 1st DCA 1981); and

    City of Lake Wales v. Public Employees Relations Commission, 402 So.2d 1224 (Fla. 2d DCA 1981).

    
    

19. The Petitioner presented competent, substantial evidence that the Respondent made fraudulent, deceptive, misleading or untrue representations in the practice of his profession when he submitted his altered certificate to the City of Hollywood Building Department to obtain a certificate of competency. The Respondent is thus guilty of violating Section 455.227(1)(a), Florida Statutes, which is a violation of Section 489.129(1)(c), Florida Statutes.

    
    

20. Competent, substantial evidence was presented to show that the Respondent acted in the capacity of a contractor under a name other than on his certificate when he presented an altered certificate to the City of Hollywood, so that he could engage in the business of contracting as Clark Fence, Inc. When the Respondent submitted the altered certificate, he did not qualify Clark Fence, Inc., with the Construction Industry Licensing Board. The Respondent thus is guilty of violating Section 489.129(1)(g), Florida Statutes.

    
    

21. Section 489.109(3), Florida Statutes, provides in part:

    
    

    (3) A person who is registered or who holds a valid certificate from the board may go on inactive status during which

    time he shall not engage in contracting . . .

    
    

22. Competent, substantial evidence was presented to show that the Respondent's certified general contractor's license was on inactive status during the times in question. Nevertheless, he used this certificate, which had been altered, to obtain a certificate of competency from the City of Hollywood so that he could obtain a building permit therein. He was thus engaging in contracting while his license was inactive and has violated Section 489.129(1)(j), Florida Statutes, by failing to comply in a material respect with the provisions of Section 489.109(3), Florida Statutes.

RECOMMENDATION

Based upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED that license number CG C012556 held by the Respondent, Norman

C. Clark, be revoked.

THIS RECOMMENDED ORDER ENTERED this 8th day of November, 1983.

WILLIAM B. THOMAS, 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 8th day of November, 1983.

COPIES FURNISHED:

Stephanie A. Daniel, Esquire Department of Professional

Regulation

130 North Monroe Street Tallahassee, Florida 32301

Roger D. Haagenson, Esquire Suite 601 Cumberland Building 800 East Broward Boulevard Fort Lauderdale, Florida 33301

James Linnan, Executive Director Construction Industry

Licensing Board Post Office Box 2

Jacksonville, Florida 32202

Frederick Roche, Secretary Department of Professional

Regulation

130 North Monroe Street Tallahassee, Florida 32301

Docket for Case No: 83-002419

Orders for Case No: 83-002419