STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

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

)

Petitioner, )

)

vs. ) CASE NO. 87-3355

)

ROBERT C. HILL, )

)

Respondent. )

)

RECOMMENDED ORDER

This proceeding was conducted on February 23, 1988, by William R. Dorsey, Jr., Hearing Officer assigned by the Division of Administrative Hearings. No transcript of the proceeding was filed. The Department of Professional Regulation submitted a proposed recommended order. The Department's proposed findings of fact are incorporated in this Recommended Order.

David L. Swanson, Esquire, Tallahassee, Florida, for Petitioner. Robert C. Hill, Pro se.

ISSUE

The issue is whether Mr. Hill, as a certified general contractor, is guilty of gross negligence or misconduct in the practice of contracting, and of failing to discharge his supervisory duty as a qualifying agent by qualifying the firm Gulfstream Shutter and Improvement Corp. when he was not actively involved in the operation of that firm, but merely obtained permits for the firm's work.

FINDINGS OF FACT

1. Robert C. Hill is a certified general contractor and holds license CG C028519.

   
   

2. Mr. Hill had been hired as one of four or five salesmen for Gulfstream Shutter and Improvement Corp. by its owner, Eugene Weiner. That company sold rolldown, accordion, panel, and awning metal shutters. Gulfstream acted as a procuring agent for Seaview Manufacturing, Inc., which fabricated and installed the shutters. A homeowner who wanted shutters would contact a salesman for Gulfstream Shutter and Improvement Corp. The salesman would measure the area to be covered for the purpose of estimating a price and give the homeowner a price. If the price was accepted, the shutters would be ordered from Seaview Manufacturing through a purchase order. Engineers from Seaview would then visit the property again to take exact measurements for fabrication, and Seaview would install the shutters. After the homeowner accepted the installation, the homeowner would pay for the shutters. Payment usually had been financed, and upon acceptance by the homeowner, the financing entity would release the

   proceeds of the home improvement loan which would be paid to Seaview for the product, and to Gulfstream for its sales commission. The average job sold by Gulfstream Shutter and Improvement Corp. was about $2,400 per home.

   
   

3. Because of the way in which the sales transactions for shutters were structured, the only party which had any contractual relationship with the homeowner was Gulfstream Shutter and Improvement Corp.

   
   

4. Mr. Hill was also able to handle work in addition to shutters, such as window replacements, because he had a contracting license. About 85 to 90 percent of Gulfstream's business was shutters and 5 percent windows or other work.

   
   

5. The owner of Gulfstream Shutter and Improvement Corp. assumed that Seaview Manufacturing, which had been in the business of fabricating and installing shutters for more than 30 years, obtained any permits that were needed for the installation of the shutters. In fact, no permits were obtained by Seaview, Gulfstream, or Mr. Hill for those installations.

   
   

6. Mr. Hill agreed to become qualifying agent for Gulfstream Shutter and Improvement Corp. so that he could pull permits for spin-off jobs he obtained for window work or other small remodeling jobs, such as porches, which arose in connection with contracts for awning work he obtained. Gulfstream had no other qualifying agent. This qualification took place in August 1985.

   
   

7. When Mr. Hill qualified as the agent for Gulfstream Shutter and Import Corp., he had no oversight of the finances of the company or supervision over the shutter fabrication or installation performed by Seaview Manufacturing on contracts procured by Gulfstream's salesmen.

   
   

8. Eventually, Mr. Hill left Gulfstream Shutter and Improvement Corp., and began his own business, Contractors Marketing, which he qualified with the Department of Professional Regulation.

   
   

   CONCLUSIONS OF LAW

   
   

9. The Division of Administrative Hearings has jurisdiction over this matter. Section 120.57(1), Florida Statutes (1987).

   
   

10. Those engaging in contracting in Florida must be certified or registered to do so. Section 489.117(1), Florida Statutes (1985). Applications for registration of corporate contractors are governed by Section 489.119(2), which provides in pertinent part:

    
    

    (2) If the applicant proposes to engage in contracting as a partnership, corporation, business trust, or other legal entity, the applicant shall state the name of the partnership and of its partners, the name of the corporation and of its officers and directors, the name of the business trust and its trustees, or the name of such other legal entity and its members; and the applicant shall furnish evidence of statutory compliance if a fictitious name is used. Such application shall

    also show that the qualifying agent is legally qualified to act for the business organization in all matters connected with its contracting business and that he has authority to supervise construction undertaken by such business organization.

11. Under Section 489.105(4), Florida Statutes (1985) "Qualifying Agent" means a person who

    ... has the responsibility to supervise, direct, manage and control the contracting activities of the business entity with which he is connected.

    
    

    Mr. Hill did not have the requisite responsibility for the operations of Gulfstream Shutter and Improvement Corp. when he became its qualifying agent. Although Mr. Hill intended to become qualifying agent for the purpose of performing spin-off jobs, once he became qualifying agent he became responsible for all activities of Gulfstream Shutter and Improvement Corp. as a matter of law. He did not become qualifying agent only for that limited class of window, porch, or other jobs which constituted 5 percent of Gulfstream's business. Such limited qualification does not appear to be possible under Section 489.119(2), Florida Statutes (1985).

    
    

12. There is no evidence of deceit in the practice of contracting or other malicious damage to the public as the result of Hill serving as qualifying agent for Gulfstream Shutter and Improvement Corp. The arrangement which Gulfstream had with its supplier, Seaview Manufacturing, was one which would have required Gulfstream, as the entity contracting with homeowners, to have a qualifying agent. The misperceptions of the owner of Gulfstream about his duty to be licensed and obtain permits for shutter installation should not be vicariously borne by Mr. Hill, however. Neither is there any evidence that Mr. Hill became the qualifying agent for Gulfstream Shutter and Improvement Corp. for the purpose of evading the requirement that Gulfstream Shutter and Improvement Corp. have a qualifying agent to obtain permits for installation under its shutter contracts. See Section 489.119(5)(a), Florida Statutes (1985).

    
    

13. Mr. Hill should not have become the qualifying agent for Gulfstream Shutter and Improvement Corp. because he did not control or manage the activities of that business. He therefore violated Section 489.119(2), Florida Statutes (1985). This violation forms the predicate for imposing discipline on Mr. Hill for violating Section 489.129(1)(j), Florida Statutes (1985), by failing to comply in a material respect with the requirements of Chapter 489, Florida Statutes.

    
    

14. The evidence in this case does not establish that Mr. Hill is guilty of gross negligence, incompetence, misconduct, fraud, or deceit in the practice of contracting. Section 489.129(1)(m), Florida Statutes (1985). The evidence only sustain the finding of ordinary negligence in improperly serving as qualifying agent for Gulfstream Shutter and Improvement Corp.

    
    

15. Section 489.129(1), Florida Statutes (1985), authorizes the imposition of an administrative fine not to exceed $5,000 for violation of Section 489.129(1)(j), Florida Statutes. The disciplinary guidelines found in Chapter 21E-17, Florida Administrative Code, which implement Section 489.129, Florida

Statutes, are instructive in determining a penalty here. There is no penalty specifically assigned for violation of Section 480.119(1)(j), Florida Statutes. There is, however, a penalty range assigned for failure to qualify a firm or acting under the name of a firm not on a license. The first such violation results in a letter of guidance, and repeated violations is a fine of $250 to

$750. Rule 21E-17.001(1), Florida Administrative Code. This is the closest analog to the offense at issue here, qualifying a firm by which the licensee is employed, but for which the licensee lacks the requisite supervisory authority. There is no evidence of any aggravating circumstances, or any prior violations. A fine of $250 is appropriate.

RECOMMENDATION

It is therefore recommended that a final order be entered finding Mr. Hill guilty of violating Section 489.119(2), Florida Statutes (1985), which make out a violation of Section 489.129(1)(j), Florida Statutes (1985), and that he be fined $250.

DONE AND ORDERED in Tallahassee, Leon County, Florida, this 22nd day of April, 1988.

WILLIAM R. DORSEY, JR.

Hearing Officer

Division of Administrative Hearings The Oakland Building

2009 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 22nd day of April, 1988.

COPIES FURNISHED:

David L. Swanson, Esquire Robert C. Hill

Department of Professional 5766 Northeast 15th Avenue Regulation Ft. Lauderdale, Florida 33334

130 North Monroe Street Tallahassee, Florida 32399-0750

Fred Seely William O'Neil, Esquire

Executive Director General Counsel

Department of Professional Department of Professional Regulation Regulation

Post Office Box 2 130 North Monroe Street Jacksonville, Florida 32201 Tallahassee, Florida 32399

Docket for Case No: 87-003355

Orders for Case No: 87-003355