Judges: D. R. ALEXANDER
Agency: Department of Business and Professional Regulation
Latest Update: Oct. 01, 1985
Summary: Contractor operating with expired license was found guilty of violating the law.
85-1293.PDFSTATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
DEPARTMENT OF PROFESSIONAL ) REGULATION, FLORIDA )
CONSTRUCTION INDUSTRY )
LICENSING BOARD, )
)
Petitioner, )
)
vs. ) CASE NO. 85-1293
)
DANIEL A. ARGUELLES, )
)
Respondent. )
)
RECOMMENDED ORDER
Pursuant to notice, a formal hearing was held in the above case before the Division of Administrative Hearings by its duly designated Hearing Officer, Donald R. Alexander, on August 5, 1985 in Miami, Florida.
APPEARANCES
For Petitioner: Nancy M. Snurkowski, Esquire
130 North Monroe Street Tallahassee, Florida 32301
For Respondent: Daniel A. Arguelles, pro se
9455 Southwest 78th Street Miami, Florida 33173
BACKGROUND
By administrative complaint filed on March 15, 1985, Petitioner, Department of Professional Regulation, Florida Construction Industry Licensing Board, has charged that Respondent, Daniel A. Arguelles, a certified general contractor, had violated various rules and provisions within Chapter 489, Florida Statutes. Generally, Petitioner has alleged that Respondent pulled a permit on a job in Miami, Florida in July, 1984, for which he was listed as the contractor, but had no part in the contract negotiations, no contact with the home owner,
and did not supervise the job. By doing so, it is alleged he aided and abetted an unregistered person to evade the requirements of Chapter 489 in violation of Subsections 489.129(1)(e) and (f), failed to supervise a project in the required manner in violation of Subsections 489.129(1)(j) and 489.105(4), and violated Subsection 489.129(1)(m) through gross negligence or incompetence.
Respondent disputed the above allegations and requested a formal hearing pursuant to Subsection 120.57(1), Florida Statutes. The matter was referred to the Division of Administrative Hearings by Petitioner on April 19, 1985, with a request that a hearing officer be assigned to conduct a formal hearing. By order dated June 24, 1985, this case was consolidated with Case No. 85-1120 and both cases were set for final hearing on August 5, 1985, in Miami, Florida. However, separate Recommended Orders are being entered in the cases.
At final hearing Petitioner presented the testimony of Michael F. O'Connor and David St Clare Reynolds and offered Petitioner's exhibits 1-7. All were received in evidence. Respondent testified on his own behalf.
The transcript of hearing was filed on September 6, 1985. Proposed findings of fact and conclusions of law were filed by Petitioner on September 20, 1985. A ruling on each 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 as subordinate, cumulative, immaterial or unnecessary.
At issue herein is whether Respondent's license as a certified general contractor should be disciplined for the alleged violations set forth in the amended administrative complaint.
Based upon all of the evidence, the following findings of fact are determined:
FINDINGS OF FACT
At all times relevant hereto, Respondent, Daniel A. Arguelles, held certified general contractor license number CG C004252 issued by Petitioner, Department of Professional Regulation, Florida Construction Industry Licensing Board. When the events herein occurred, he was qualified as an individual.
He presently resides at 9455 Southwest 78th Street, Miami, Florida.
Respondent's brother is J. Alejandro Arguelles. Alejandro holds an inactive contractor's license which has been delinquent since July, 1979. In June, 1984, Alejandro was contacted by an individual named Louis Taylor. Taylor told Alejandro that David Reynolds, who resided at 753 Northwest 116th Street, Miami, Florida, wished to add a room to his house. After meeting with Reynolds, Alejandro had plans for the addition prepared, provided an estimate for the job, and gave Reynolds a business card reflecting that he was a licensed general contractor. Reynolds and Alejandro then jointly executed a contract on July 26, 1985, wherein it was provided that A. Arguelles & Associates would construct the room addition for $19,000. The letterhead on which the contract was executed indicated that Alejandro was a general contractor. However, the entity "A. Arguelles & Associates" has never been qualified by any licensee to do construction work in the state.
During all negotiations with Reynolds, Alejandro never mentioned that Daniel would be the contractor on the project although Alejandro did advise him that a general contractor would be required. All checks were made out to Alejandro, and Alejandro ordered all supplies and materials used on the project. In addition, Alejandro was at the job site on a regular basis.
Prior to signing the contract on July 26, Daniel was approached by Alejandro and asked if he would be willing to act as contractor on the project. Daniel agreed, and thereafter pulled a job permit and used his license number on all pertinent documentation. Other than visiting the job site on a "couple" of occasions, he had no other contact with the project. He never met or had any contact with Reynolds.
The actual amount of work done on the project by Alejandro and Daniel amounted to only $5,000.00 and consisted of constructing the foundation up to the tie beam. There is no evidence that this phase of the work was performed in a negligent or incompetent manner.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction of the subject matter and the parties thereto pursuant to Subsection 120.57(1), Florida Statutes.
In the administrative complaint Respondent is charged with (a) aiding, abetting, combining and conspiring with an uncertified or unregistered person to evade the provisions of Chapter 489 in violation of Subsection 489.129(1)(e) and (f), Florida Statutes, (b) violating Subsections 489.105(4) and 489.129(1)(j), Florida Statutes, by failing to supervise a project in the manner required, and (c) being grossly negligent or incompetent in the practice of contracting in violation of Subsection 489.129(1)(m), Florida Statutes.
The evidence is clear and convincing that Respondent effectively allowed his brother to use his license to perform the Reynolds project. This is evidenced by Alejandro having procured and negotiated the job, signed the contract, received all monies, supervised the work, and ordered the supplies and materials used on the project. Indeed, there was no contact whatsoever by Daniel with the consumer, and he had no participation in the project other than pulling the permit and visiting the job site one or two times. Accordingly, Daniel has aided an uncertified person to evade the provisions of Chapter 489, and failed to supervise the project in the manner required. However, there is insufficient evidence that he is guilty of "gross negligence" or "incompetence" as alleged in the administrative complaint. Therefore, the allegation that he violated Subsection 489.129(1)(m) must fail.
Petitioner suggests that the violations warrant a
$1,000.00 administrative fine. However, only one minor project is involved, and it appears that Daniel is less culpable than his brother who instigated the whole matter. Because Petitioner has recommended a $1000.00 fine for Alejandro, a $500.00 administrative fine is appropriate for Daniel.
RECOMMENDATION
Based on the foregoing findings of fact and conclusions of law, it is
RECOMMENDED that Respondent be found guilty as set forth in the Conclusions of Law portion of this order, and that he be fined $500.00.
DONE and ORDERED this 1st day of October, 1985, in Tallahassee, Florida.
DONALD R. ALEXANDER
Hearing Officer
Division of Administrative Hearings The Oakland Building
2009 Apalachee Parkway
Tallahassee, FL 32301
(904)488-9675
Filed with the Clerk of the Division of Administrative Hearings this 1st day of October, 1985.
COPIES FURNISHED:
Salvatore A. Carpino, Esquire
130 N. Monroe St. Tallahassee, FL 32301
Fred Roche, Secretary
Dept. of Professional Regulation
130 N. Monroe St. Tallahassee, FL 32301
Nancy M. Snurkowski, Esquire
130 N. Monroe St. Tallahassee, FL 32301
J. K. Linnan, Executive Director Florida Construction Industry
Licensing Board
P. O. Box 2 Jacksonville, FL 32201
Mr. Daniel A. Arguelles 9455 S.W. 78th Street Miami, FL 33173
Docket for Case No: 85-001293
Orders for Case No: 85-001293
