Judges: JAMES E. BRADWELL
Agency: Department of Business and Professional Regulation
Latest Update: Oct. 13, 1986
Summary: The issues presented for decision herein are whether or not Respondent is guilty of allegations, set forth hereinafter in detail as contained in the Administrative Complaint filed herein, and if so, what penalty is appropriate.Suspension and fine recommended for failure to perform contracted work.
86-1385.PDFSTATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
DEPARTMENT OF PROFESSIONAL ) REGULATION, CONSTRUCTION INDUSTRY ) LICENSING BOARD, )
)
Petitioner, )
)
vs. ) CASE NO. 86-1385
)
BOBBY D. PATTON, )
)
Respondent. )
)
RECOMMENDED ORDER
Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, James E. Bradwell, held a public hearing in this case on July 31, 1986, in Miami, Florida. Pursuant to leave, the parties were allowed through September 10, 1986, to submit proposed memoranda supportive of their respective positions. Petitioner's counsel has submitted a proposed recommended order which was considered by me in preparation of this Recommended Order.
APPEARANCES
For Petitioner: Erroll H. Powell, Esquire
Department of Professional Regulation
130 North Monroe Street Tallahassee, Florida 32301
For Respondent: Steven M. Rosen, Esquire
5601 Building
5601 Biscayne Boulevard
Miami, Florida 33137 ISSUES PRESENTED
The issues presented for decision herein are whether or not Respondent is guilty of allegations, set forth hereinafter in detail as contained in the Administrative Complaint filed herein, and if so, what penalty is appropriate.
BACKGROUND
On January 21, 1986, Petitioner, Department of Professional Regulation, filed an Administrative Complaint alleging, in material part, that Respondent, Bobby D. Patton, failed to properly discharge his duty as a qualifying agent and to qualify a legal entity through which he was contracting in violation of Sections 489.129(1)(j), 489.119 and 489.105(4), Florida Statutes; that Respondent aided and abetted and/or knowingly combined or conspired with an unlicensed contractor to evade the provisions of Chapter 489 and thereby violated Sections 489.129(1)(e) and (f), Florida Statutes; that Respondent acted
in the capacity of a contractor under a name other than that appearing on his State Certificate in violation of Section 489.129(1)(g), Florida Statutes; that Respondent committed gross negligence, incompetence, and/or misconduct in the practice of contracting in violation of Section 489.129(1)(m), Florida Statutes; and that Respondent violated Construction Industry Licensing Board Rule 21E- 15.07, Florida Administrative Code, based on his failure to timely notify Petitioner of his change of address.
Respondent filed a response to the Administrative Complaint denying all material allegations therein and the matter was referred to the Division of Administrative Hearings for a formal hearing pursuant to Section 120.57(1), Florida Statutes.
At the hearing, Petitioner presented the testimony of Mei Linn Eisen, Steven B. Schwartz, Donna Romito and Robert Wolf, who testified on behalf of Petitioner and Petitioner offered Exhibits 1 through 7 which were received into evidence.
Respondent did not personally appear but appeared through his attorney and offered one Exhibit, Respondent's Exhibit Number 1 which was received into evidence.
FINDINGS OF FACT
During times material hereto, Respondent, Bobby D. Patton, was a certified general contractor, qualifying Bellavia Construction, Inc. (sometimes referred to as Bellavia) and has been issued license number CGC011543. (Petitioner's Exhibit 1).
During times material hereto, John Bellavia (Bellavia) was not licensed by the State of Florida, Department of Professional Regulation, Construction Industry Licensing Board, as a contractor. (Petitioner's Exhibit 1).
During times material hereto, Allstate Interiors, Inc., was not qualified with the State of Florida, Department of Professional Regulation, Construction Industry Licensing Board. (Petitioner's Exhibit 1).
On October 12, 1982, Bellavia Construction contracted with Mrs. Mei Lin Eisen to construct a fast food restaurant within the confines of Aventura Mall for a cost of $37,000.00. Bellavia executed the contract on behalf of Bellavia Construction as it's president. (Petitioner's Exhibit 2).
On October 15, 1982, Mrs. Eisen gave to Bellavia Construction a down payment of $7,400.00. (Petitioner's Exhibit 3).
Bellavia Construction was to complete the construction within four weeks after the issuance of the building permit. (Petitioner's Exhibit 1).
Mrs. Eisen emphasized to Bellavia that the construction phase of the restaurant had to be completed within the stated period in order that her business could be operating at the time of the Mall's grand opening. Mrs. Eisen also advised Bellavia that if she did not have her business operational at the time of the grand opening, she would be assessed a daily penalty by the Mall's owner for every day she was not in business beyond the grand opening. (TR 21, 35).
On October 15, 1982, a building permit was issued to Respondent for the construction improvement work by Bellavia Construction on the Eisen job. (Petitioner's Exhibit 4; TR43).
For the three week period following the issuance of the building permit (October 15, 1982), there was virtually no progress on the job with the exception of the drilling of three holes for plumbing and the placement of metal studs; which holes were incorrectly drilled and had to be relocated because they did not comport with the schematic drawings as depicted in the plans.
During the three week period following the issuance of the permit, Bellavia was observed performing construction at another business in the mall. During that time, Mrs. Eisen inquired of Bellavia as to the lack of progress on her job and was told that there was no money to be made on the project.
At the conclusion of the three week period subsequent to October 15, 1982, Bellavia quit Mrs. Eisen's project and did not return the deposit monies. Mrs. Eisen therefore had to obtain the services of another contractor to complete the job. As a result of this delay, her business was not open at the time of the mall's grand opening. (TR 22, 36).
Mrs. Eisen was assessed a civil penalty of $16,800.00, payable over a seven year period at $200.00 a month. (TR 23)
Neither during the negotiation of the contract nor during the performance of the contract did Mrs. Eisen or her architect have any knowledge of Respondent. Their entire contractual dealings were with Bellavia. (TR 23, 24, 38 and 39).
Bellavia was also the president of Allstate Interiors, Inc., which attained corporate status on May 2, 1983.
On May 4, 1983, a building permit for construction work by Bellavia Construction for Aventura Travel was issued to Respondent. (Petitioner's Exhibit 6).
On May 11, 1983, a building permit for construction work by Bellavia Construction for Dentaland was issued to Respondent. (Petitioner's Exhibit 5).
During February, 1983, Respondent moved from his address of record with the Department of Professional Regulation, Construction Industry Licensing Board, which was 8698 S.W. 50th Street, Cooper City, Florida. In July, 1983, the Department became aware of Respondent's move from the above location during the investigation of the instant case. (TR 50, 53/54, 56/58).
Respondent, during the license renewal process period for 1985/1987, notified the Department of his address change to 1005 N.E. 143rd Street, North Miami, Florida, which became his address of record. (Petitioner's Exhibit 1).
As stated in the background, Respondent did not appear at the hearing except through counsel.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the subject matter and the parties to this action. Section 120.57(1), Florida Statutes. The parties were duly noticed pursuant to the notice provisions of Chapter 120, Florida Statutes.
Respondent, a licensed general contractor, is subject to the disciplinary guides of Chapter 489, Florida Statutes.
Section 489.129, 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 if the contractor is found guilty of committing any of the acts enumerated in Section 489.129, Florida Statutes.
Section 489.105(4), Florida Statutes, sets forth the definition of a qualifying agent:
"any person who possesses the requisite skill, knowledge and experience to supervise, direct, manage, and control the contracting activities of the
business entity with which he is connected. "
Additionally, Section 489.119, Florida Statutes, provides in pertinent part that if a legal entity is to engage in contracting, it must apply for a license through a qualifying agent who must also be licensed. Additionally, (1 the qualifying agent must 1 have the authority to supervise construction undertaken by such business organizations, (2 the license must be issued in the name of the qualifying agent and the name of the business organization shall be noted on the contracting document.
Competent and substantial evidence was offered herein to establish that Respondent failed to discharge his duty as a qualifying agent based on his contracting activities with Mrs. Eisen for the construction of the fast food restaurant involved herein at Aventura Mall.
Based on Respondent's failure to supervise the Eisen project involved herein, competent and substantial evidence was offered herein to establish that he engaged in conduct violative of Section 489.129(1)(j), and thereby violated Section 489.119, Florida Statutes.
Based on Respondent's failure to perform any work on the Eisen project, knowing that Mrs. Eisen would be subjected to a civil penalty based on her failure to adhere to the time constraints, Respondent thereby is deemed guilty of gross negligence and misconduct in the practice of contracting in violation of Section 489.129(1)(m), Florida Statutes.
Competent and substantial evidence was offered herein to establish that the Respondent failed to notify the Department within thirty (30 days of his change of address from that which appears on his current certificate of registration in violation of Section 489.129(3), Florida Statutes, and thereby violated Board Rule 21E-15.07, Florida Administrative Code.
Respecting counsel's argument during hearing that based on a settlement in civil court which resolved the civil claim between Bellavia Construction and Mrs. Eisen, Petitioner was without authority to proceed or that Mrs. Eisen was prohibited from testifying in these proceedings, such claim is rejected as without merit inasmuch as the Petitioner has the authority to prosecute a claim, as here, even though Mrs. Eisen may have withdrawn her complaint against Bellavia Construction. (Section 455.225, Florida Statutes.
As an aside, Section 455.225(10), Florida Statutes, gives any witnesses who testifies at such a proceeding a privilege against civil liability in giving testimony absent a showing of bad faith or malice. No such showing of bad faith or malice was shown herein. Section 455.225(10 Florida Statutes.
RECOMMENDATION
Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED:
That Respondent, Bobby D. Patton, license number CGC 011543, be suspended for a period of one (1 year.
Further, it is RECOMMENDED that an administrative fine of $500.00 be imposed upon Respondent.
DONE and ORDERED this 13th day of October, 1986, in Tallahassee, Florida.
JAMES E. BRADWELL
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 13th day of August, 1986.
COPIES FURNISHED:
Erroll Powell, Esquire Department of Professional
Regulation
130 North Monroe Street Tallahassee, Florida 32301
Steven M. Rosen, Esquire 5601 Building
5601 Biscayne Blvd.
Miami, Florida 33137
Docket for Case No: 86-001385
Orders for Case No: 86-001385
