STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF PROFESSIONAL )

REGULATION, CONSTRUCTION )

INDUSTRY LICENSING BOARD, )

)

Petitioner, )

)

vs. ) Case No. 85-2709

)

MARVIN L. GILL, )

)

Respondent. )

)

RECOMMENDED ORDER

A hearing was held pursuant to notice on January 29, 1986 in Lakeland, Florida by Stephen F. Dean, assigned hearing officer of the Division of Administrative Hearings, in this case which arose from an administrative complaint brought by Florida Construction Industry Licensing Board ("FCILB") against Marvin Gill. The administrative complaint charged that the Respondent violated Section 489.117, Florida Statutes, by contracting to do work for which he was not registered.

APPEARANCES

For Petitioner: Nancy M. Snurkowski, Esquire

Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32301

For Respondent: Marvin L. Gill, pro se

2501 N. 20th Street Zephyrhills, Florida 33599

ISSUES

The Petitioner charges Respondent with contracting to do commercial contracting work for which he was not registered. The Respondent asserts that he was in a partnership with Otis Allen who was qualified to do commercial work and who pulled the permit for the work in question.

The issue is whether Respondent violated Section 489.117, Florida Statutes; if he and Allen did the Mosser job as partners.

Both parties have submitted posthearing Proposed Findings of Fact. A ruling has been made on each proposed finding of fact in the Appendix to this Recommended Order.

FINDINGS OF FACT

1. At all times relevant hereto, Respondent, Marvin L. Gill, held a registered residential contractor's license, number RR 0053369, issued by the State of Florida, Department of Professional Regulation, Construction Industry Licensing Board. (Tr. 18, 59; Petitioner's Exhibit 1) At all times relevant hereto, the Respondent was not a registered commercial contractor.

   
   

2. At all times material hereto, Marvin L. Gill was qualifying agent for Gill Built Homes. (Tr. 18, Petitioner's Exhibit 1)

   
   

3. At all times relevant hereto, Otis Allen, a registered commercial contractor, was not a partner or member of the corporation known as Gill Built Homes. (Tr. 68-69, 101-102)

   
   

4. On or about August 8, 1984, Marvin L. Gill, entered into a contract with Walter Mosser to construct a storeroom at the Sunset Lounge, which was a cocktail lounge. (Tr. 18, 69, 99-100; Petitioner's Exhibit 2)

   
   

5. Said contract designated Marvin L. Gill, d/b/a Gill Built Homes, as the contractor for the project and Walter Mosser as the owner of Sunset Lounge. (Petitioner's Exhibit 2)

   
   

6. The duties of Marvin L. Gill, as contractor, were to provide all labor and material, in accordance with the plans and specifications, to construct a room addition to the lounge owned by Mr. Mosser. (Tr. 99+, Petitioner's Exhibit 2)

   
   

7. (Ultimate fact) The Sunset Lounge is a commercial structure and the room addition project did not fall within the realm of residential construction. (Tr. 141+)

   
   

8. The contract price was $17,500. Said price was to be paid pursuant to a draw schedule listed in the construction contract and these progress payments were to be given to the contractor, Marvin L. Gill. (Tr. 105, 106; Petitioner's Exhibit 2)

9. A check in the amount of $1,750 was made out to Marvin

   L. Gill on August 8, 1984. A check in the amount of $1,800 was made out to Marvin Gill Co. on August 27, 1984. A check in the amount of $3,500 was made out to Marvin Gill and Otis Allen on September 6, 1984. A check in the amount of $5,250 was made out to Marvin Gill and Otis Allen on September 27, 1984. All these checks were payments for work done on the lounge addition by Mosser or at his direction. See Exhibit 5A-D.

   
   

10. The contract provides that the contract shall begin immediately after the contractor has secured the necessary permits which he shall use his best efforts to obtain. (See paragraph 4, Contract; Petitioner's Exhibit 2)

    
    

11. The contract designates the contractor, Marvin L. Gill, as the individual solely responsible for all construction under the contract. Further, Marvin L. Gill was responsible for supervision and direction of the work to be done as well as "provide and pay for all labor, materials and equipment, including tools, construction equipment/machinery and all other facilities and services necessary for the proper completion of work on the project in accordance with the plans and specifications." (See paragraph 5, Contract, Petitioner's Exhibit 2)

    
    

12. The addition was begun and work was done in a workmanlike fashion. The project was stopped for good cause by Respondent when Mosser refused to make further payments. The addition was approximately 75% finished when work ceased; however, the Respondent and Allen had received only $7,000.

    
    

13. The construction contract does not state that the contractor, Marvin L. Gill, was working as a partnership or joint venture for the Sunset Lounge project. The contract does permit assignment of the contract. (Tr. 67-68; Petitioner's Exhibit 2)

    
    

14. Otis Allen pulled the building permit on the Mosser job. Allen and Gill had discussed a partnership in which they would work together and share profits and responsibilities. Checks were made out to Gill and Allen. Allen and Gill worked together on this project as though they were in a partnership. Gill testified they had a partnership. They did not register their partnership.

    
    

    CONCLUSIONS OF LAW

    
    

15. The Division of Administrative Hearings has jurisdiction on the subject matter and the parties thereto pursuant to Subsection 120.57, Florida Statutes.

16. Section 489.128, Florida Statutes, authorizes the Construction Industry Licensing Board to revoke or suspend the registration or certificate of a contractor and impose an administrative fine, place a contractor on probation, or reprimand or censure a contractor if the contractor is found guilty of committing any of the acts enumerated in that section.

    
    

17. The Administrative Complaint charges the Respondent with violating Section 489.117, Florida Statutes. Section 489.117(1) provides:

    
    

    1. Any person engaged in the business of contracting in the state shall be registered in the proper classification, unless he is certified. Any person entering the business of contracting shall be registered prior to engaging in contracting, unless he is certified. To be initially registered, the applicant shall submit the required fee and file evidence, in a form provided by the department, of holding a current local occupational license issued by any municipality, county, or development district for the type of work for which registration is desired and evidence of successful compliance with the local examination and licensing requirements, if any, in the area for which registration is desired. No examination shall be required for registration.

18. The official licensure affidavit of the Construction Industry Licensing Board and the Respondent's own admission (Tr. 18; Petitioner's Exhibit 1) established the Respondent had a registered residential contractor's license. This license limited the Respondent to work only on residential construction.

    
    

19. The Respondent contracted with Mosser, as Gill Built Homes. The evidence established that the work which was the subject of the construction contract between Respondent and Mosser was not residential but was a commercial undertaking. The Respondent's license did not allow him to contract with regard to commercial construction. Otis Allen pulled the building permit on the job in his name, which raises a presumption of improper conduct.

    
    

20. In explaining this permit and the contract, Respondent showed he had a partnership with Otis Allen, a qualified

    commercial contractor, to share work on the lounge project. Respondent obtained the Mosser contract and he and Allen cooperated on the job. Because Allen pulled the permit and supervised the work, it was properly within the area of Allen's license. However, Gill and Allen did not properly register this partnership prior to entering into contracting as required by Section 489.119 and 489.117, Florida Statutes.

    
    

21. In mitigation, it appears that the Respondent and Allen did not intend to avoid the requirements of the statute. They were each qualified registered contractors who gave good service and value to Mosser. Gill lost substantially on this contract. Mosser benefited significantly from his non-payment. The Respondent, Gill, was guilty of a technical violation of failing to register the partnership contrary to Section 489.117, Florida Statutes.

RECOMMENDATION

Based upon the foregoing, it is recommended that Respondent be fined three hundred dollars ($300.00).

DONE AND ORDERED this 16th day of May 1986 in Tallahassee, Leon County, Florida.

STEPHEN F. DEAN, Hearing Officer Division of Administrative Hearings 2009 Apalachee Parkway

Tallahassee, Florida 32399

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 16th day of May 1986.

COPIES FURNISHED:

Mr. Fred Seely Executive Director

Construction Industry Licensing Board Post Office Box 2

Jacksonville, Florida 32201

Mr. Fred Roche Secretary

Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32301

Salvatore A. Carpino, Esquire General Counsel

Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32301

Nancy M. Snurkowski, Esquire Department of Professional

Regulation

130 North Monroe Street Tallahassee, Florida 32301

Mr. Marvin L. Gill 2501 N. 20th Street

Zephyrhills, Florida 33599

APPENDIX

The following constitute my specific rulings pursuant to Section 120.59(2), Florida Statutes (1985) on the proposed findings of fact submitted by the parties.

Rulings on Proposed Findings of Fact Submitted by Petitioner

1-11. Adopted.

1. Rejected as duplication finding of fact 5.

2. Adopted with some reorganization of sentences.

3. Rejected as conclusion of law; factual assertion included in paragraph 1.

4. Adopted with some reorganization of sentences.

5. Rejected as conclusion of law.

Rulings on Proposed Findings of Fact Submitted by Respondent

The majority of this pleading is a recitation of testimony, not a finding of fact. These are the major "facts" stated or suggested in Respondents pleadings:

1. Allen and Gill had a partnership.

2. Allen was a commercial contractor.

3. Allen and Gill shared responsibilities for the job.

4. Mosser received an addition 75% complete for approximately

   $7,000.

5. Allen pulled permits on the job and worked on the job.

6. The project was abandoned because of non-payment by the owner.

7. The work was done in a workmanlike fashion.

Docket for Case No: 85-002709

Orders for Case No: 85-002709