STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF PROFESSIONAL REGULATION, ) CONSTRUCTION INDUSTRY LICENSING BOARD, )

)

Petitioner, )

)

vs. ) CASE NO. 87-0213

)

PRESTON MADDOX, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to Notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, William R. Cave, held a public hearing in the above- captioned case on May 1, 1987 in Tallahassee, Florida. The issue for determination is whether Respondent's license as a registered general contractor should be disciplined based on the charges alleged in the Administrative Complaint.

APPEARANCES

For Petitioner: G. Vincent Soto, Esquire

Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32399-0750

For Respondent: Lee Meadows, Esquire

1017 Thomasville Road, Suite D Tallahassee, Florida 32303

BACKGROUND

By Administrative Complaint dated September 19, 1956 and filed with the Division of Administrative Hearings on January 16, 1987, the Petitioner seeks to revoke, suspend or otherwise discipline Respondent's registered general contractor's license. As grounds therefor, it is alleged that Respondent aided and abetted an uncertified or unregistered person to evade the provisions of Chapter 489, Florida Statutes, in violation of Sections 489.129(1), (e), Florida Statutes.

In support of its charges, Petitioner presented the testimony of Virgil Fleming, Shirley Iozzi, James D. Courtney and Thomas K. Hannah. Petitioner's exhibits 1 through 7 were received into evidence. Respondent testified on his own behalf but offered no exhibits into evidence.

The parties submitted posthearing Proposed Findings of Fact and Conclusions of Law. A ruling on each proposed finding of fact has been made as reflected in the Appendix to this Recommended Order.

FINDINGS OF FACT

Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant facts are found:

1. At all times material to this proceeding, Respondent was licensed as a registered general contractor by the State of Florida, Construction Industry Licensing Board, having been issued license number RG 0014645. Respondent's address is 2533 Green Road, Tallahassee, Florida 32308.

   
   

2. On or about October 30, 1985, Willie McFarland (McFarland) contracted with Virgil Fleming (Fleming) to perform certain improvements to Fleming's home located at 9008 Broken Lance, Tallahassee, Florida. The contract price was

   $24,600.00. There was no contract between Fleming and Respondent.

   
   

3. Fleming paid McFarland $16,500.00 of the contract price. Most of this money was paid in advance of work being performed.

   
   

4. MoFarland was not, at any time material to this proceeding, a licensed contractor in the State of Florida and both Fleming and Respondent knew that he was not a licensed contractor.

   
   

5. McFarland was not authorized to pull a permit to complete the work and Fleming, upon finding this out, started to pull the permit as a homeowner but changed his mind.

   
   

6. Respondent agreed to pull, and did pull, the permit for this job, after checking on McFarland and with the understanding that he would have to be involved with McFarland on the job. Without the permit, McFarland could not have continued with the job.

   
   

7. Fleming did not pay any money to Respondent for pulling the permit or for anything else and there was no evidence that McFarland paid any money to Respondent for pulling the permit or anything else.

   
   

8. McFarland partially completed the work contracted for with Fleming.

   
   

9. The Respondent went to the job site on several occasions but was unable to make contact with McFarland. Respondent did make contact with McFarland on one (1) occasion after he had pulled the permit and obtained some promises from McFarland concerning the job but McFarland did not "live up" to those promises.

   
   

10. There was credible testimony from Respondent that McFarland was not an employee of Respondent's business but that one of the conditions for pulling the permit required McFarland to be an employee of Respondent only on this job.

    
    

11. Respondent had no knowledge of the financial arrangements between McFarland and Fleming until after the permit was pulled and McFarland had "skipped."

    
    

12. The parties have been unable to locate McFarland.

    
    

    CONCLUSIONS OF LAW

    
    

13. The Division of Administrative Hearings has jurisdiction over the parties to, and the subject matter of, this proceeding pursuant to Section 120.57(1), Florida Statutes.

14. Section 489.129(1), Florida Statutes, empowers the Florida Construction Industry Licensing Board (Board) to revoke, suspend or otherwise discipline the license of the Respondent if he is found guilty of any one of those enumerated acts listed in Section 489.129(1)(a)-(m), Florida Statutes.

    
    

15. The Administrative Complaint charges Respondent with violating Section 489.129(1)(e), in that it alleges that Respondent aided and abetted McFarland, an unlicensed contractor, when Respondent "pulled" the permit for the Fleming job. Section 489.129(1)(e), Florida Statutes provides as follows:

    
    

    (e) Aiding or abetting any uncertified or unregistered person to evade any provision of this act.

    
    

16. In disciplinary proceedings, the burden is upon the regulatory agency to establish facts upon which its allegations of misconduct are based. Balino

    v. Department of Health and Rehabilitative Services, 348 So.2d 349 (1 DCA Fla. 1977).

    
    

17. The evidence is clear that Respondent knew McFarland was unlicensed and, therefore, unable to "pull" a permit for the Fleming job. However, the more credible evidence shows that Respondent did not intend to participate with McFarland in any violation of Chapter 489, Florida Statutes but instead "pulled" the permit with the intention of supervising the Fleming job. The Petitioner has failed to meet its burden to show that when Respondent "pulled" the permit on the Fleming job that it was done with the intent of evading the provisions of Chapter 489, Florida Statutes and, therefore, there was no violation of Section 489.129(1)(e), Florida Statutes. Blume v. Department of professional Regulation, 489 So.2d 880 (2 DCA Fla. 1986)

RECOMMENDED ORDER

Having considered the foregoing Findings of Fact, Conclusions of Law, the evidence of record and the candor and demeanor of the witnesses, it is, therefore,

RECOMMENDED that the Board enter a Final Order dismissing the Administrative Complaint filed herein.

Respectfully submitted and entered this 19th day of June, 1987, in Tallahassee, Leon County, Florida.

WILLIAM R. CAVE

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 19th day of June, 1987.

APPENDIX TO RECOMMENDED ORDER, CASE NO. 870213

The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on all of the Proposed Findings of Fact submitted by the parties in this case.

Rulings on Proposed Findings of Fact Submitted by the Petitioner:

1.-2. Adopted in Finding of Fact 1.

3. Adopted in Findings of Fact 2 and 8. 4.-5. Adopted in Finding of Fact 4.

6.-7. Adopted in Finding of Fact 6.

1. Rejected as not supported by substantial competent evidence in the record.

2. The fact concerning supervision of the job is rejected as not supported by substantial-competent evidence in the record. The balance of the paragraph is adopted in Finding of Fact 11.

Rulings on Proposed Findings of Fact Submitted by the Respondent

1. Adopted in Finding of Fact 1.

2. Adopted in Finding of Fact 2.

3. Adopted in Finding of Fact 7.

4. Rejected as not supported by substantial competent evidence in the record.

5. Adopted in Finding of Fact 6.

6. Adopted in Finding of Fact 9.

7. Adopted in Finding of Fact 12.

8. Adopted in Finding of Fact 2.

9. Adopted in Finding of Fact 4.

10. Rejected as immaterial and irrelevant.

COPIES FURNISHED:

Van Poole, Secretary Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32301

Fred Seely, Executive Director Construction Industry Licensing Board Department of Professional

Regulation

130 North Monroe Street Tallahassee, Florida 32301

G. Vincent Soto, Esquire Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32301

Lee Meadows, Esquire 1017 Thomasville Road Suite D

Tallahassee, Florida 32303

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

AGENCY FINAL ORDER

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

STATE OF FLORIDA DEPARTMENT OF PROFESSIONAL REGULATION CONSTRUCTION INDUSTRY LICENSING BOARD

DEPARTMENT OF PROFESSIONAL REGULATION,

Petitioner,

vs. CASE NO. 71352

DOAH CASE NO. 87-0213

PRESTON MADDOX,

License No. RG 0014645

Respondent.

/

FINAL ORDER

THIS MATTER came before the Construction Industry Licensing Board pursuant to Section 120.57(1)(b)(9), Florida Statutes, on July 16, 1987, in Tallahassee, 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 above styled case. The Petitioner was represented by Douglas A. Shropshire. The Respondent was present and represented by counsel at the proceedings.

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

FINDINGS OF FACT

1. The Hearing Officer's findings of fact are hereby approved and adopted and incorporated by reference as the findings of fact of the Board.

   
   

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

CONCLUSIONS OF LAW

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

2. The Board rejects the Hearing Officer's conclusions of law as being inconsistent with the findings of facts as listed in the Recommended Order and adopted by this Board. The Board approves and adopts paragraph 2 of the petitioner's Exceptions To Hearing Officers Recommended Order and finds that the Respondent is guilty of violating Section 489.129(1)(e), Florida Statutes, for the reasons specified in said exceptions. As paragraph 1 of the above referenced exceptions is more commentary than exception, the Board shall not address same.

   
   

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

   
   

4. As this Board has determined that a violation of law exists on the part of the Respondent, the Hearing Officer's recommended dismissal of this cause is improper.

THEREFORE, IT IS HEREBY ORDERED:

Respondent shall pay an administrative fine in the amount of five hundred dollars to the Florida Construction Industry Licensing Board. Said fine shall be paid within thirty days.

To assure payment of the fine, it is further ordered that all of Respondent's licensure to practice contracting shall be suspended with the imposition of the suspension being stayed for thirty days. If the ordered fine is paid within that thirty day period, the suspension imposed shall not take effect. Upon payment of the fine after the thirty days, the suspension imposed shall be lifted. If the licensee does not pay the fine within said period, then immediately upon expiration of the stay, he shall surrender his licensure to the investigator of the Department of Professional Regulation or shall mail same to the Board offices.

Respondent shall be on probation from the date of the Final Order herein, through February, 1988. Respondent shall make a probation appearance before the Board in the month of February 1988. At said appearance, Respondent shall stand for questions from the Board as to his firm's operations and finances, and shall supply the Board with such financial reports and other papers as the Board may require

Pursuant to Section 120.59, Florida Statutes, the Parties are hereby notified that they may appeal this Order by filing one copy of a Notice of Appeal with the Clerk of the Department of Professional Regulation, 130 North Monroe Street, Tallahassee, Florida 32301, and by filing the filing fee and one copy of the Notice of Appeal with the District Court of Appeal within thirty

(30) days of the effective date of this Order.

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

DONE AND ORDERED this 21st day of September 1987.

J. R. Crockett, 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

Preston Maddox 2553 Greer Road

Tallahassee, Florida 32308

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 30th day of September, 1987.

Docket for Case No: 87-000213

Orders for Case No: 87-000213