STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

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

)

Petitioner, )

)

vs. ) CASE NO. 83-3073

) DPR NO. 0031193

GILBERT SYKES, )

)

Respondent. )

)

RECOMMENDED ORDER

This matter came on for hearing before Charles Adams, Hearing Officer, Division of Administrative Hearings, on January 25, 1984, in Room 409 of the Daniels Building, Jacksonville, Florida, pursuant to a notice to the parties. This Recommended Order is being entered following receipt and review of the proposed Recommended Order of Petitioner. To the extent the proposal is consistent with the Recommended Order, it has been utilized. Otherwise, it is rejected as contrary to facts found, conclusions of law or the recommended disposition of the dispute.

APPEARANCES

For Petitioner: Douglas A. Shropshire, Esquire

Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32301

For Respondent: Gilbert Sykes

4862 Soutel Drive

Jacksonville, Florida 32208

ISSUES

The issues in this case are those promoted by the Administrative Complaint by Department of Professional Regulation against Respondent accusing him of violations of Chapter 489, Florida Statutes, pertaining to work done for Mary Scott. This circumstance is more particularly discussed in findings of fact and conclusions of law.

FINDINGS OF FACT

1. Respondent is a registered building contractor and a registered roofing contractor, having been issued license No. RB 0009302 and RC 0032535. Said licenses were in effect as of the date of the hearing in this matter. Both of Respondent's licenses had become delinquent in July 1981 and were not renewed until June 1983.

2. On or about November 11, 1982, Mary Scott entered into a contract with Henry Hodge, doing business as "Direct Interiors," pursuant to which Hodge was to construct an addition to the Scott residence located at 1439 West 2nd Street, Jacksonville, Florida. The contract price was $6,848.00.

   
   

3. On November 24, 1982, Respondent used his registered building contractor's license to help obtain building permit No. 10047 from the City of Jacksonville, Building and Zoning Department, for the construction of the addition to the Scott residence under her contract with Henry Hodge. At no time material hereto was Henry Hodge or "Direct Interiors" licensed to engage in the business of contracting in the State of Florida. At no time did the Respondent qualify "Direct Interiors" to engage in the business of contracting. Respondent helped obtain the permit at Hodge's request, as a favor to Hodge. Respondent has never been partners or otherwise done business with Hodge. Respondent became casually acquainted with Hodge when they both were working on the same construction site, unrelated to this case. Respondent helped Hodge obtain the permit as follows: Hodge approached Respondent and asked Respondent to obtain the permit for the Scott jot. Respondent told Hodge to bring Respondent a building permit application form. Hodge did this, and Respondent then signed the application while it was still blank. Hodge thereafter filled in the details, took the application in to the building department, and received the building permit. Respondent had no knowledge of the size or other details of the work on the Scott job, other that it was a room addition. At not time while Henry Hodge was working on the Scott job did Respondent visit the job site or in any way supervise the work.

   
   

4. Henry Hodge, as "Direct Interiors," completed construction of the addition and received $5,924.00 in payment from Mary Scott.

   
   

5. The contract between Hodge and Scott called for building a room addition and for reroofing certain portions of the roof of the existing structure. After Hodge completed the job, portions of the reroofed area which had not leaked before Hodge reroofed it, began to leak. Mary Scott was not able to obtain satisfactory performance from Hodge concerning this problem. She then contacted the building department and found that the building permit was obtained upon Respondent's license. Until that point, she was unaware of Respondent. Subsequently, Respondent corrected the work done by Hodge.

   
   

   CONCLUSIONS OF LAW

   
   

6. The Division of Administrative Hearings has jurisdiction over the subject matter and the parties pursuant to Section 120.57, Florida Statutes, and Chapter 489, Florida Statutes.

   
   

7. It has been established that Respondent violated Section 489.129(1)(e), Florida Statutes (1981), as alleged in the Administrative Complaint, in that he did aid and abet Henry Hodge to evade the provisions of Chapter 489, Florida Statutes. Respondent did likewise violate Section 489.129(1)(f), Florida Statutes (1981), in that he knowingly combined or conspired with Henry Hodge by allowing the Respondent's registration to be used with the intent to evade the provisions of Chapter 489, Florida Statutes. The above referenced violations occurred in that Respondent knew that Hodge was not licensed and that Hodge should have been licensed before undertaking the Scott job. Nonetheless, Respondent signed his name on the permit application. He therefore aided and conspired with Hodge to assist Hodge in avoiding the requirements of Florida law that persons doing such work be licensed.

8. Respondent further violated Section 489.129(1)(j), Florida Statutes (1981), when he failed to renew his registration as a contractor, as required by Section 489.115(3)(a) and (b), Florida Statutes (1981).

   
   

9. Respondent is not guilty of violating Sections 489.129(1)(g), Florida Statutes (1981), or Section 489.129(1)(j), Florida Statutes (1981), via Section 489.119(2) and (3), Florida Statutes (1981). These charges were clearly plead as alternative to the aiding and abetting and combining and conspiring charges. Having found that the contracting was done solely by Henry Hodge, with no involvement by Respondent, it would be incongruous to find Respondent guilty of contracting in a name other than on his license, or failing to qualify a business through which he contracted.

   
   

10. For the violations established in Paragraphs 3 and 4 of the Conclusions of Law, Respondent is subject to the penalties announced in Section 489.129(1), Florida Statutes (1981).

    
    

    PENALTY

    
    

11. The consumer in this case, Mary Scott, suffered substantial inconvenience and trouble due to Hodges' substandard job performance. This hardship was occasioned by Respondent's willingness to help Hodge evade the licensing requirement. In Respondent's favor, once he was made aware of the problems after the job was completed, he did, in good faith, work with the customer to correct the situation. Furthermore, he acknowledged at the hearing that he had made a serious mistake and stated that he will never again pull a permit for a job contracted by someone else.

RECOMMENDATION

Upon consideration of the facts found, conclusions of law and matters in mitigation and aggravation, it is

RECOMMENDED that a final order be entered imposing a $500.00 fine for the violations found.

DONE AND ENTERED this 5th day of March 1984 in Tallahassee, Florida.

CHARLES C. ADAMS

Hearing Officer

Division of Administrative Hearings The Oakland Building

2009 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 5th day of March 1984.

COPIES FURNISHED:

Harold M. Braxton, Esquire

45 Southwest 36th Court Miami, Florida 33135

Mr. Gilbert Sykes 4862 Soutel Drive

Jacksonville, Florida 32208

James Linnan, Executive Director Construction Industry Licensing Board 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: 83-003073

Orders for Case No: 83-003073