Violated Section 489.129(1)(j), Florida Statutes, by failure in any material respect to comply with the provisions of Chapter 489, Florida Statutes by failing to properly subcontract work for which a local examination for a certificate of competency or license was required, contrary to Section 489.113(3), Florida Statutes.
Stephen G. Blume, the Respondent, is a state certified Class A contractor under Chapter 489, Florida Statutes. He holds license number CA C009753, and he is the qualifying agent for BCH Mechanical, Inc. (BCH), a
Florida corporation, in which Blume is the principle stockholder. BCH is a mechanical contractor and concentrates its efforts in commercial construction work, particularly in shopping center construction. BCH subcontracts from owners or general contractors for the installation of heating, ventilating, and air conditioning for individual establishments within shopping malls.
Prior to February 18, 1983, the Respondent contracted with a general contractor for the Respondent to provide heating, ventilation, and air conditioning equipment to approximately 15 stores in the Aventura Mall in Dade County, Florida. The work was of a nature for which the Respondent and BCH were qualified to perform under Chapter 489, Florida Statutes.
On February 18, 1983, the Respondent and his company contracted with Richard E. Hahn, doing business as Temp-Rite Air Conditioning and Refrigeration, Inc., to install air conditioning systems in spaces 128, 163, 645, and 677 at the Aventura Mall. See attachment to Respondent's Exhibit 1, and paragraph 3 of the administrative complaint.
On February 23, 1983, the Respondent obtained building and mechanical permits to perform heating, ventilation, and air conditioning work on spaces 163, 645, 677, and 128 at the Aventura Mall. See Petitioner's Exhibit 1. The Respondent did not attempt to list the permits in the name of Hahn at the time of application or subsequently.
Richard Hahn did not have a certificate of competency to do air conditioning construction work, and was not qualified in Dade County to obtain a permit to do that work himself. He also was not licensed by the Construction Industry Licensing Board to perform this work.
The Respondent selected Hahn by the following process. When he got to the mall, he contacted Robert Shaw Controls, the company that was doing work on the concourse air conditioning systems at the mall. Employees of Robert Shaw told the Respondent of three pipe fitting companies that were then doing work at the mall. All three gave the Respondent bids, and Respondent selected Hahn's company as low bidder. There is no evidence that Blume was a friend of Hahn prior to this contract.
Respondent's company specializes in installation of air conditioning systems in shops in commercial malls. Respondent's company employs 30 to 40 people. Most of this is handled by his own employees, without subcontracts. Thus, for most of his work, there is no need for a licensed subcontractor.
At the Aventura Mall project, the Respondent determined that he needed to hire a subcontractor affiliated with the pipefitters union for the work on first floor shops. The Respondent did not have a bargaining agreement with the pipefitters union, and thus could not call the Dade County pipefitters' hiring hall to hire a pipefitter as a temporary employee. Instead, Respondent had to subcontract the work to a pipe fitter union member. Respondent determined that he needed pipefitter union affiliation because that union was quite strong in Dade County, and use of nonunion members might have caused labor unrest at the mall work site.
It was not to the economic advantage of the Respondent to subcontract the work to Hahn. It would have been more profitable to the Respondent to have followed his usual business practice of doing the air conditioning pipe fitting work using his own nonunion pipefitter employees.
The Respondent asked Hahn if he was a licensed contractor for his work, whether he was a union pipe fitter, and whether he carried worker's compensation coverage. The Respondent was told by Hahn that he had a license, that he was a journeyman union pipe fitter, and that he did carry worker's compensation coverage. Following his past practice, the Respondent asked Hahn only for proof of his worker's compensation coverage. The Respondent did nothing to attempt to verify the truth of Hahn's assertion that he was a licensed contractor.
The Respondent could have verified the existence of Hahn's license by either asking Hahn to show him his license card or by telephoning the license record officer in Dade County and asking that agency to verify Hahn's license. The Respondent did not do either of these things both of which were relatively easy to do. The Respondent had memorized his own contract license number.
William Lessaris was employed by the Respondent and BCH Mechanical, Inc., to provide daily supervision of the project. Lessaris was at the job site daily. Other BCH employees were also on the job site.
John D. Arition is Mechanical and Building Inspector and Plans Processor for far the Building and Zoning Department of Dade County, Florida.
Arition was called by Lessaris to come to the job site to perform the air conditioning inspection. Arition did not tell BCH Mechanical, Inc., when he would arrive. When Arition arrived on the job site, Hahn was there. Arition asked Hahn for his license to do the work. Hahn told Arition that he did not have a license. Arition ordered Hahn to cease work. Hanh picked up his tools and left the job site. Arition then talked with Lessaris and told him about the problem with Hahn.
The work was completed satisfactorily, without defects.
Subsequently, Hahn was administratively charged with violating various provisions of Dade County construction law, was found to have committed six violations, was fined a total of $2,700 and had his personal certificate of competency suspended for one year. Blume was asked to appear at the hearing, but could not due to prior scheduled work. There is no evidence that Blume was given adequate notice of the date of the hearing, and it appears that he was given only short notice of the precise date. Blume was not subpoened to appear, and was not at fault in failing to appear. Blume voluntarily supplied Dade County with all documentary evidence requested.
CONCLUSIONS OF LAW
It would have been relatively easy for Respondent Blume to have independently verified Hahn's claim that he was properly licensed to perform the work under his contract with Blume. Blume could have asked Hahn to provide some written verification of his license, or Blume could have telephoned the Dade County Office which maintains official records of currently licensed contractors. But the contracting laws do not specifically require such verification by Blume, and his failure to do so does not violate any law, nor is he charged with such a violation.
The first violation charged is "knowingly combine or conspire with an uncertified or unregistered person by allowing his certificate to be used by an uncertified or unregistered person with intent to evade the provisions of Chapter 489," in violation of Section 489.129(1)(f), Florida Statutes. The
evidence fails to prove this allegation for two reasons: there has been no proof of a knowing conspiracy between Hahn and Blume, and the proof fails to show specific intent to evade the provisions of Chapter 489. A conspiracy to commit an offense is an offense separate from the offense itself, and requires proof both an agreement and an intent to commit the underlying offense. Of.
Ashenoff v. State, 391 So.2d 380, 291 (Fla. 3rd DCA 1981). The agreement may be inferred from circumstantial evidence. Cf. Estraviz v. State, 366 So.2d 803, 804 (Fla. 3rd DCA 1979). But there must be some evidence of the plan, agreement, and communication of the agreement between the parties. Cf. Beke v. State, 423 So.2d 417, 419 (Fla. 2nd DCA 1982). Conspiracy may not be inferred from aiding and abetting alone. Cf. Ashenoff, supra, 391 So.2d at 291.
Petitioner presented no evidence from which it may be inferred that Blume and Hahn agreed to violate the law. Second, the Petitioner in its proposed findings and conclusions of law acknowledges that since Section 489.129(1)(f) requires proof of "intent to evade" Chapter 489, the offense requires proof of specific intent. Linehan v. State, 442 So.2d 244 (Fla. 2nd DCA 1983). Petitioner's entire case relies upon evidence of how easy it would have been for the Respondent to have checked Hahn's license, and as such, relies upon neglect, not intent to violate the law specifically. A failure to independently check the veracity of Hahn's claim to a license might be some evidence of knowledge and intent to violate the law by Blume if connected with other evidence, but there is no other evidence in this case. Indeed, all of the other evidence indicates that Blume had no intent to commit any of the violations charged. The proof is thus insufficient for this alleged violation.
Petitioner cites Moncrief v. State, Commissioner of Insurance, 415 So.2d 785 (Fla. 1st DCA 1982) as authority to support a finding of specific intent to support the first allegation in this case. The Moncrief case is inapposite. In Moncrief, the Court found as a matter of fact that the Respondent in that case "was aware that Sams was not licensed." The Respondent's defense was simply that although he knew that Sams did not have license to be a runner he was operating from a mistake of law that a license was not required. Moreover, the Respondent in Moncrief was not charged with a knowing conspiracy, as in the case at bar, and was not charged with an offense requiring specific intent to evade the law, as in the case at bar.
The second violation charged is aiding and abetting an unregistered person to evade the provisions of Chapter 489, Florida Statutes. Proof of assistance to Hahn to commit Hahn's violation without proof that Blume intended to participate in the violation is not sufficient to prove the offense of aiding and abetting. Cf. J. H. v. State, 370 So.2d 1219, 1220 (Fla. 3rd DCA 1979). As discussed above, there is no proof that Blume knew that Hahn was unlicensed or that Blume intended to violate the law.
The Petitioner cites La Russa v. State, 142 Fla. 504, 196 So. 302 (Fla. 1940) as authority for the proposition that proof of specific intent is not needed to support the second alleged violation of aiding and abetting another person to evade the law. The La Russa case is likewise not on point. The statute violated in the La Russa case was not an "aiding and abetting" violation, but rather simply prohibited "printing lottery tickets." Having proved that the tickets printed were "lottery" tickets, the State had proved its case. Proof of intent that the ticket were to be used in a specific lottery, or knowledge that they would be used in a future lottery, was unnecessary since the statute did not require proof of these subjective states of mind to prove that the ticket printed were "lottery" tickets. In the case at bar, the Florida Legislature could easily make it illegal for a contractor to subcontract to a person who requires a license and fails to have one. Such an offense would be
provable without proof of knowledge and intent, just like the Moncrief offense. But the Legislature has not done so. It has chosen instead to use "aiding and abetting" language that has a long history of definition in the criminal law as requiring something more than proof of acts which end up assisting another to violate the law. As discussed above, the aider and abettor must be shown to have intended to participate in the offense by his acts of assistance. The second allegation is thus not supported by the evidence.
The third violation alleged is that Blume failed to properly subcontract work for which a local examination for a certificate of competency or license was required, contrary to Section 489.113(3), Florida Statutes, and thus failed to comply in any material respect with the provisions of Chapter 489, in violation of Section 489.1 29(1)(j), Florida Statutes. Section 489.113(3), Florida Statutes, does not require a contractor such as Respondent Blume to subcontract air conditioning work if he himself "holds a state certificate of competency or license of the respective trade category." Blume held a proper state license, was qualified himself to do the work, and properly obtained a permit from Dade County. At the hearing, Petitioner stipulated to the truth of these facts as set forth in paragraph 2 of Respondent's proposed stipulation, and Petitioner alleged in the administrative complaint that Respondent held a state license.
The Petitioner cites Farzad v. DPR, 443 So.2nd 373 (Fla. 1st DCA 1983) as authority to sustain the third charge, but the case is not applicable in this proceeding. In Farzad, the proof conformed to the violations alleged in the complaint. The only error, which the Farzad Court said was harmless, was that the final order mistakenly cited the wrong statute for the violation. The situation in the case at bar is different. Here, having given Respondent notice of violation of one statutory provision, the Petitioner now says ignore the statute alleged. Rather than ask that the facts be conformed to the statute, Petitioner would jetison the statute altogether. Notwithstanding the looser requirements in the administrative arena for pleading violation, the Respondent is entitled to at least know what statute he has violated. Further, if the statute is to be disregarded, what other statute is offered as a basis for Petitioner's jurisdiction? None is suggested. In summary, the third violation has not been provided by evidence.
Sections 10-22(h)(1) and (4), Dade County Code, attached to Petitioner's Exhibit 3, are irrelevant to this case. Subsections (1) and (4) do not create a violation, but are only some evidence of a violation of Dade County Law. Moreover, the Respondent has been charged with violation of state law, not Dade County Law. Further, both subsections may be some evidence of the Dade County offense of "Intentionally evading or violating any provisions of this chapter" (Section 10-22, Dade County Code), but neither of these provisions of the Dade County Code create any evidentiary presumptions or guidelines for determining violations of state law charged in the administrative complaint.
The Petitioner asserts that the testimony of Respondent Blume that Hahn told Blume that he had all the proper licenses to do the work is hearsay, and cannot be the sole basis for a finding of fact. Hahn's statement would be hearsay if offered to prove that Hahn "had all the proper licenses to do the work." But it is not hearsay to prove that Blume heard Hahn make the representation. Blume is allowed to testify to anything he personally saw or heard, and as long as such matters are not offered to prove the truth of what was heard, Blume's testimony is not hearsay. This is simply the first principle of the hearsay rule, and is contained in the definition of hearsay. Section 90.801(c), Fl. Stat.
