STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF PROFESSIONAL ) REGULATION, CONSTRUCTION )

INDUSTRY LICENSING BOARD, )

)

Petitioner, )

)

vs. ) CASE NO. 85-0344

)

FREDERICK L. SCHREINER, )

)

Respondent. )

)

RECOMMENDED ORDER

A final hearing was held in this case on August 28, 1985, in Melbourne, Florida, before Donald D. Conn, a duly designated Hearing Officer of the Division of Administrative Hearings. The parties were represented by:

For Petitioner: Nancy M. Snurkowski, Esquire

130 North Monroe Street Tallahassee, Florida 32301

For Respondent: Albert S. Lagano, Esquire

2115 Palm Bay Road, N.E. Palm Bay, Florida 32905

The Department of Professional Regulation, Petitioner, has filed an Administrative Complaint before the Construction Industry Licensing Board alleging that Frederick L. Schreiner, Respondent, violated provisions of Sections 489.115, 489.119 and 489.129, Florida Statutes, by failing to qualify businesses for which be obtained building permits and through which he acted as a contractor: by aiding, abetting and conspiring with an unlicensed person to evade the provisions of chapter 489, Florida Statutes by abandoning a construction project in which he was engaged by acting in a name other than as set forth on his license: and by failing to maintain required insurance coverage and operating while his license was invalid due to the expiration of his insurance. The Administrative Complaint contained 11 counts and 103 paragraphs but during the hearing

Petitioner only offered evidence on the following paragraphs: 1- 13, 15, 16, 22, 27-32, 35, 42, 47, 52, 53, 55-58, 71, 80, 82,

88, 90, 91, 93-103. The remaining paragraphs are therefore dismissed since no evidence was presented in support of the allegations contained therein.

At the hearing, Petitioner introduced eight (8) exhibits, and was allowed to supplement two of these exhibits with late filed additional exhibits. Respondent introduced a total of eleven (11) exhibits. Petitioner called ten (10) witnesses and, without objection, proffered the testimony of eight (8) additional witnesses who were present but whose testimony would have been cumulative and repetitious of that which had already been presented. Respondent testified on his own behalf and called additional two witnesses. A transcript of the hearing was filed on September 9, 1985.

Respondent filed a Motion to Dismiss for Lack of Jurisdiction at the commencement of the hearing, and a ruling on the motion was reserved in order to review the matters asserted therein and to incorporate a ruling in the motion in this Recommended Order. Having considered the motion, it is hereby denied for the reasons more particularly set forth below.

The parties were allowed to submit post-hearing proposed findings of fact pursuant to Section 120.57(1)(b)4, Florida Statutes. A ruling on each timely filed proposed finding of fact has been made either directly or indirectly in this Recommended order, except where such proposed findings of fact have been rejected or subordinate, cumulative, immaterial, or unnecessary.

FINDINGS OF FACT

1. At all times material hereto Respondent has been a certified general contractor in the State of Florida having been issued license numbers CG-C004811 and CG-CA04811.

   
   

2. On or about July 11, 1983, Dorothea Stella entered into a contract with J. F. Johnson Company, Inc., to purchase and place a single family manufactures home on property Stella was purchasing from Johnson, designated as Lot 22, Block 1081, Unit PM 19 in the city of Palm Bay. On September 16, 1983 Respondent obtained building permit number 20209 from the city of Palm Bay for this construction. The permit application and the permit itself show J. F. Johnson Company, Inc., as owner.

3. Stella only dealt with J. F. Johnson and never met or heard of Respondent. She believed that Johnson was in charge of the construction, brought problems to his attention and made payments to Johnson.

   
   

4. Respondent was not responsible for any of the work in constructing the manufactures home for Stella but was in charge of placing the home on the lot she bought from Johnson. This would include clearing the lot, preparing a foundation, plumbing and electrical connections and the installation of a septic tank and drain field.

   
   

5. Stella did not close on this dale because construction of the manufactured home was delayed and her financing approval expired. However, the site preparation for the home had been completed, including clearing of the lot and construction of the foundation.

   
   

6. On or about June 30, 1983, Earl D. And Mary C. McNees entered into a contract with J. F. Johnson Company, Inc., to purchase and place a single family manufactured home on property they were purchasing from Johnson, designated as Lot 1, Block 378, Unit PM 10 in the city of Palm Bay. On August 2, 1983, Respondent obtained permit number 19785 from the city of Palm Bay for this construction. The permit application and the permit itself show J. F. Johnson Company, Inc., as owner.

   
   

7. Mary McNees only dealt with J. F. Johnson and had never met or heard of Respondent. She believed Johnson was in charge of the construction and made all payments to Johnson.

   
   

8. Respondent was not responsible for any of the work in constructing the manufactured home for Mr. and Mrs. McNees, but was in charge of placing the home on the lot they purchased from Johnson. He did satisfactorily clear the lot, pour foundation for their home, connect the electricity and plumbing, and install a septic tank and drain field.

   
   

9. During late December 1982, Michael Schulte entered into a contract with J.F. Johnson Company, Inc., to purchase and place a single family manufactured home on a lot he was purchasing from Johnson located at 831 Southwest Hanau Avenue, Palm Bay. Schulte dealt solely with Johnson in this transaction, but he knew that Johnson used Respondent to pull required permits associated with his home sales. Schulte had done work for Johnson and knew that Respondent called for the

   required instructions and obtained all permits. In fact, Respondent did obtain permit number 18601 for this project.

   
   

10. Respondent routinely obtained required permits from the city of Palm Bay on behalf of J. F. Johnson Company, Inc., that were necessary for the placement of manufactured homes o lots which Johnson was selling to purchasers.

    
    

11. At all times material hereto, J. F. Johnson was not licensed with the Construction Industry Licensing Board and Respondent did not qualify J. F. Johnson, Inc. with the Board. Respondent's activities on the site, if any, were minimal. The buyers and electrical contractors testified they never met or saw Respondent on any site and their understanding was that Johnson was in charge of all site preparation for the manufactured homes.

    
    

12. On October 26, 1983, Respondent on behalf of Certified Construction Services, Inc., obtained building permit number 20577 for construction at 2333 S.W. Granata Avenue, Palm Bay. Roger A. Bisset had contracted for the construction of a site built residence at this address with Tommy Holland who was operating as a developer under the company name of Full Value Homes of Florida, Inc. Bisset made payment to Full Value Homes for the home and land. He did not meet Respondent during this transaction, or have any knowledge of Respondent's role in obtaining required permits for the construction of his home.

    
    

13. Respondent routinely obtained required permits from the City of Palm Bay on behalf of Certified Construction Services, Inc. in association with the construction and sale of site built homes by Tommy Holland. Specifically he obtained building permit number 20800 on November 22, 1983, and permit number 20973 on December 8, 1983.

    
    

14. From January through April 1983, Respondent also routinely obtained required permits from the City of Palm Bay on behalf of Full Value Homes of Florida, Inc. in association with their construction and sale of site built homes, Specifically he obtained building permits numbered 17901, 18441, 18443, 18694, 18696, 18872, 18874 and 19155 during this time. These permits were issued to Respondent individually upon application showing Tommy Holland as owner of the properties.

    
    

15. At all times material hereto, Tommy Holland was licensed with the Construction Industry Licensing Board, but Respondent had not qualified either Full Value Homes of Florida,

    Inc., or certified Construction Services Inc., with the Board. He did submit an application to qualify Certified Construction Services, Inc., on or about September 13, 1983, but that application has not been approved by the Board.

    
    

16. At no time hereto was Respondent an officer, director, or employee of J. F. Johnson Company, Inc., or Full Value Homes of Florida, Inc., and at no time was Tommy Holland an officer, director, or employee of Certified Construction Services.

    
    

17. The evidence produced at the hearing does not support the allegation that Respondent failed to maintain required insurance coverage. Rather, it appears that he has been continuously insured since September 1980.

    
    

18. According to local ordinance in the City of Palm Bay, a licensed general contractor who also holds a local certificate of registration must apply for building permits and call for necessary inspections on construction within the City, with the exception of construction by an owner or his property. Respondent holds a local certificate of registration in addition to his state license but Tommy Holland does not, Regarding manufactured housing, a permit is not required for the actual home construction, but it is required for construction associated with site preparation such as clearing, laying a foundation, driveway, septic tank and drain field installation, electrical and plumbing connections. The contractor who obtain a permit for a manufactured home is held responsible for site construction but not for the construction of the manufactured home itself.

1. In an effort to comply with local ordinance requirements, Respondent met with city building officials on several occasions regarding his work for Full Value Homes and Tommy Holland, and was advised that he could pull permits either in his own name or in the name of Certified Construction Services, Inc., since at the time he had a substantially complete application pending with the Board to qualify Certified Construction Services, Inc. When his application was not approved, he pulled permits in his own name and indicated to the city that he was the property owner and builder, and Full Value Homes was simply marketing these site built homes. In fact, Full Value Homes and Tommy Holland were developing property they owned, and had contracted with Respondent for construction of these homes.

2. On August 25, 1982, the Construction Industry Licensing Board issued a Final Order officially reprimanding Respondent based upon the findings of fact and conclusions of law contained in a Recommended Order issued June 29, 1982, in Case Number 81-2375. In that case Respondent was found to have unintentionally failed to qualify a business, unintentionally aided an unregistered persons to evade Chapter 489, Florida Statutes, and unintentionally failed to comply with Chapter 489, Florida Statutes, in a material respect.

   
   

   CONCLUSIONS OF LAW

   
   

3. The Division of Administrative Hearings has jurisdiction over the parties and subject matter in this case. Section 120.57(1), Florida Statutes. Petitioner has jurisdiction over licensees who are subject to disciplinary action for violations of Chapter 489. Florida Statutes. Sections 489.113, 489.119, 489.129 and 455.225, Florida Statutes.

   
   

4. Petitioner has charged Respondent with violating the following provisions:

   
   

   489.129 Disciplinary proceedings.--

   
   

   (1) The board may revoke, suspend, or deny the issuance or renewal of the certificate or registration of a contractor and impose an administrative fine not to exceed $5,000, place a contractor on probation, or reprimand or censure a contractor if the contractor, or if the business entity or any general partner, officer, director, trustee, or member of a business entity for which the contractor is a qualifying agent, is found guilty of any of the following acts:

   
   

   * * *

   
   

   1. Aiding or abetting any uncertified or unregistered person to evade any provisions of this act.

      
      

   2. Knowingly combining or conspiring with an uncertified or unregistered person by allowing one's certificate or registration to be used by any uncertified and

      unregistered person with the 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 such companies such act constitutes prima facie evidence of this act.

      
      

   3. Acting in the capacity of a contractor under any certificate or registration 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 application for the certificate or registration, or as later changed as provided in this act.

   
   

   * * *

   
   

   1. Failure in any material respect to comply with the provisions of this act.

      
      

   2. Abandonment of a construction project in which the contractor is engaged or under contract as a contractor. A project is to be considered abandoned after 90 days if the contractor terminates the project without notification to the prospective owner and without just cause.

   
   

   * * *

   
   

   (m) upon proof that the licensee is guilty of fraud or deceit or of gross negligence, incompetency, or misconduct in the practice of contracting.

   
   

   In addition, Respondent is charged with failing to qualify a business through which he engaged in contracting in violation of Section 489.119(2),(3) Florida Statutes, and failure to maintain required insurance coverage in violation of Section 489.115(4), Florida Statutes.

5. Since this is a license disciplinary case, Petitioner has the burden of establishing the matters alleged in the Administrative Complaint by clear and convincing evidence. Balino v. Department of Health and Rehabilitative Services, 348 So. 2d 349 (Fla. 1st DCA 1977); Bowling v. Department of Insurance, 394 So. 2d 165 (Fla. 1st DCA 1981). Petitioner has met this burden regarding all of the above cited provisions except Section 489.115(4), Florida Statutes, concerning required insurance coverage, and Section 489.129(1)(k), Florida Statutes, concerning abandonment of a project.

   
   

6. The evidence established that Respondent assisted J.

F. Johnson and Tommy Holland to evade the requirements of Chapter 489, and local ordinance and that he allowed his license to be used by Johnson without actively participating in the operations, management or control of site preparation work associated with the placement of manufactured homes on lots. This constitutes prima facie evidence of an intent to evade the provisions of Chapter 489 which is not rebutted by evidence introduced by Respondent. Neither Certified Construction Services, Inc. nor Full Value Homes of Florida, Inc. were ever qualified by Respondent and yet he contracted through these corporations in constructing site built homes for Tommy Holland. He did submit an application to qualify Certified Construction Services, Inc., but proceeded to engage in contracting under this company name before the Board had a chance to act in the application. These acts constitute misconduct and a material failure to comply with Chapter 489, Florida Statutes.

RECOMMENDATION

Based upon the foregoing findings of fact and conclusions of law, it is recommended that a Final Order be issued suspending Respondent's license for a period of six (6) months and imposing an administrative fine of $2,000.

DONE AND ENTERED this 26th day of September, 1985, at Tallahassee, Florida.

DONALD D. CONN, 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 26th day of September, 1985.

COPIES FURNISHED:

James Linnan, Executive Director Construction Board Licensing Industry post Office Box 2

Jacksonville, Florida 32202

Nancy M. Snurkowski, Esq. Department of Professional

Regulation

130 North Monroe Street Tallahassee, Florida 32301

Albert S. Lagano, Esq. 2115 Palm Bay Road, N.E. Palm Bay, Florida 32905

Fred Roche, Secretary Department of Professional

Regulation

130 North Monroe Street Tallahassee, Florida 32301

Salvatore A. Carpino, Esq. Department of Business

Regulation

130 North Monroe Street Tallahassee, Florida 32301

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AGENCY FINAL ORDER

================================================================

=

STATE OF FLORIDA DEPARTMENT OF PROFESSIONAL REGULATION CONSTRUCTION INDUSTRY LICENSING BOARD

DEPARTMENT OF PROFESSIONAL REGULATION,

Petitioner,

CASE NOS. 0043380, 0047212,

vs. 0045461

DOAH CASE NO. 85-0344

FREDERICK L. SCHREINER,

License No. CG CA04811, CG C004811,

Respondent.

/

FINAL ORDER

THIS MATTER came before the Construction Industry Licensing Board pursuant to Section 120.57(1)(b)9., Florida Statutes, on January 9,1986, in Jacksonville, Florida for consideration of the Recommended Order (a copy of which is attached hereto and incorporated herein by reference) issued by the hearing officer in the case of Department of Professional Regulation vs.

Frederick L. Schreiner, Case No. 0043380, 0047212, 0045461. The petitioner was represented by Douglas A. Shropshire. The Respondent was present.

Upon consideration of the hearing officer's Recommended Order, exceptions filed and the arguments of the parties and after a review of the comp1ete record in this matter, the Board makes the following findings:

FINDINGS OF FACT

1. The hearing officer's findings of fact are hereby approved and adopted.

   
   

2. There is competent, substantial evidence to support the hearing officer's findings of fact.

   CONCLUSIONS OF LAW

   
   

3. The Board has jurisdiction of this matter pursuant to the provisions of Section 120.57(1), and Chapter 489, Florida Statutes.

   
   

4. The hearing officer's conclusions of law, are hereby approved and adopted in toto.

   
   

5. The penalty recommended by the Hearing Officer is hereby rejected.

   
   

6. There is competent substantial evidence to support the Board's findings and conclusions.

WHEREFORE, IT IS HEREBY ORDERED AND ADJUDGED:

Respondent shall pay an administrative fine in the amount of

$2,000.00 to the Florida Construction Industry Licensing Board. Said fine shall be paid within 30 days.

Respondent is hereby placed on PROBATION for a period of five years. As a condition of this probation, the Respondent shall break no law relating to the practice of contracting.

Pursuant to Section 120.59, Florida Statutes, the parties are hereby notified that they may appeal this final order by filing one (1) copy of a notice of appeal with the clerk of the agency and by filing the filing fee and one (1) copy of a notice of appeal with the District Court of Appeal within thirty (30) days of the filing of this order.

This Order shall become effective upon filing with the Clerk of the Department of Professional Regulation.

DONE AND ORDERED this 12th day of February, 1986.

John Fix, Chairman

Construction Industry Licensing Board

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a true and correct copy of the foregoing Final Order has been provided by certified mail to

Frederick Schreiner &: Albert S. Lagano, Esq.

375 Lee Ave. 2115 Palm Bay Rd. N.E.

Satellite Beach, FL 32937 Palm Bay, FL 32905

and by hand delivery/United States mail to the Board Clerk, Department of Professional Regulation and its Counsel, 130 North Monroe Street, Tallahassee, Florida 32301, on or before 5:00 p.m., this 27th day of February, 1986.

JAMES B. POWELL

Docket for Case No: 85-000344

Orders for Case No: 85-000344