STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

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

)

Petitioner, )

)

vs. ) CASE NO. 87-5328

)

JAMES J. HASTINGS, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the above batter was heard before the Division of Administrative Hearings by its duly designated Hearing Officer, Don W. Davis, on March 4, 1988 in Melbourne, Florida. The following appearances were entered:

APPEARANCES

For Petitioner: David Swanson, Esquire

Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32399-0750

For Respondent: James J. Hastings, Pro Se

836 19th Place

Vero Beach, Florida 32962 BACKGROUND

Respondent is a general contractor licensed by Petitioner. Petitioner charged Respondent in an administrative complaint with aiding unlicensed persons to evade state licensing requirements for contractors, operating under a name not on Respondent's license and failing to qualify the business entity through which he was operating. Respondent requested a formal administrative hearing.

At hearing, Petitioner presented testimony of two witnesses and five evidentiary exhibits. Respondent presented testimony of one witness. Proposed findings of fact submitted by the parties are addressed in the appendix to this recommended order.

Based upon all of the evidence, the following findings of fact are determined:

FINDINGS OF FACT

1. Petitioner is the Department of Professional Regulation.

2. Respondent is James J. Hastings, the holder, at all times pertinent to these proceedings, of general contractor license number CG C009847. He is also the qualifying agent for Hastings Construction Co., Inc.

   
   

3. James and Susan Cesiro, owners of a residence in Palm Bay, Florida, entered into a contract on June 13, 1985, with Mike Boyer, proprietor of a business known as American Fiberglass Pools, to furnish and install a swimming pool. The total contract price was $8500.

   
   

4. The owners gave Boyer a $1,500 check at the time the contract was executed. On July 9, 1985, Boyer's employee obtained a second check from the owners for an additional $1,500 allegedly to complete the $3,000 required down payment. Unfortunately, the employee persuaded the owners to make this check payable to the employee personally. The employee subsequently disappeared after cashing the check. This complication resulted in some delay in the initiation of construction activities.

   
   

5. On August 12, 1985, the owners were informed by Boyer that a contractor had been retained to install the fiberglass pool.

   
   

6. On August 28, 1985, Respondent obtained a building permit from the City of Palm Bay authorizing the pool construction. The permit identified Respondent's company, Hastings Construction Co., Inc., as the contractor.

   
   

7. The owners issued a check in the amount of $2,500 on September 6, 1985. Delivery of the check was made to Boyer, but was made payable to Respondent. In view of their past experience with furnishing a check payable to a party other than Boyer or his company, the owners obtained a receipt for the check from Boyer.

   
   

8. The owners gave another check in the amount of $500 to Boyer on September 9, 1985. This check was also made payable to Respondent. Again, a receipt was obtained from Boyer by the owners.

   
   

9. On September 23, 1985, Respondent personally received another check from the owners in the amount of $2,500.

   
   

10. In September, 1985, after receipt of funds from the owners, Respondent and Boyer proceeded with the pool installation. While Boyer was present at the site more than Respondent, the Respondent was present every day at periodic intervals.

    
    

11. The owners had the impression that Respondent was new at the installation of this type of pool. Boyer seemed to be more in charge of the construction and Respondent appeared to defer to him on questions asked by the owners during the installation process. This impression was confirmed at hearing by Respondent's admission that this was his first experience with this kind of pool. He had never "lifted pools over houses" and viewed the entire job as a "learning experience." Because of the tutorial nature of the situation, Respondent said he didn't enter into a formal contract with the owners.

    
    

12. In May 1986, cracks appeared in the bottom of a portion of the pool. Respondent took the position that the pool should be repaired by Boyer under terms of the owners agreement with that individual.

    
    

13. Respondent never prepared or accepted an assignment of the contract made by Boyer with the owners. Respondent is not an officer or employee of

    Boyer's business. Respondent is not a qualifying agent for Boyer or American Fiberglass Pools and those names do not appear on his license.

    
    

14. The owners were never apprised that Respondent was "their" contractor. Respondent's testimony that a letter was sent from him to the owners on August 30, 1985, informing them of this fact is not credited in view of the Respondent's candor and demeanor while testifying on this point, the fact that he had obtained the building permit on August 28, 1985, and the owners denial that such letter was ever received. Respondent's credibility on this point was further undermined at one point in the hearing when he stated he was given this job by Boyer.

    
    

15. Mike Boyer is not, and has never been, licensed by the Florida Construction Industry Licensing Board in accordance with Chapter 489, Florida Statutes. Respondent was aware that Boyer was not a licensed contractor.

    
    

16. Respondent was previously disciplined by the Florida Construction Industry Licensing Board in Petitioner's case numbers 430077 and 50057, on or about October 29, 1984 and February 4, 1985, respectively. Discipline in the form of a $250 fine was imposed in the former case for Respondent's failure to qualify a company through which he was doing business and for deceptive representations in the practice of contracting. The latter disciplinary action resulted in the imposition of a $250 fine upon Respondent or suspension of his license for 60 days due to aiding and abetting an unlicensed individual and failing to qualify a business with the Board.

    
    

    CONCLUSIONS OF LAW

    
    

17. The Division of Administrative Hearings has jurisdiction over the subject matter of this proceeding, and the parties thereto, pursuant to Subsection 120.57(1), Florida Statutes (1987).

    
    

18. The evidence is clear and convincing that Respondent combined with Mike Boyer to allow that individual and his business to evade the licensing requirements of Florida law as shown by Respondent's open admission of failure to execute a contract with the owners and his obtainment of the building permit for the pool installation. Further bolstering Petitioner's allegations of this offense is the Respondent's own admission that this job was a learning experience and that he knew Boyer was unlicensed. The owners observation that Boyer spent more time on the job and seemed to be in charge is also supportive of this conclusion. The owners issuance of checks payable to Respondent, standing alone, is not probative of any contractual relationship with Respondent. The Respondent violated section 489.129(1)(e), Florida Statutes.

    
    

19. Respondent obtained the building permit under the name of Hastings Construction Co., Inc. He has qualified that business and is not, in the absence of evidence to the contrary, guilty of operating under a name not on his license. Respondent has not therefore violated section 489.129(1)(g), Florida Statutes.

    
    

20. Respondent's failure to qualify either Boyer or his business, American Fiberglass Pools, as required by provisions of section 489.119, Florida Statutes, upon acceptance of the subject construction job from that individual is violative of section 489.129(1)(j), Florida Statutes.

RECOMMENDATION

Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that a final order be entered suspending Respondent's licensure

to practice contracting for one year and assessing an administrative fine in the amount of $2000.

DONE AND RECOMMENDED this 18th day of March, 1988, in Tallahassee, Leon County, Florida.

DON W. DAVIS

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 18th day of March, 1988.

APPENDIX TO RECOMMENDED ORDER, CASE NO. 87-5328

The following constitutes my specific rulings on findings of fact submitted by the Petitioner.

1. Included in finding number 2.

2. Included in findings numbered 3 and 15. The last sentence is rejected as noncorroborative hearsay.

3. Included in part in finding number 4.

4. Included in part in finding number 5.

5. Included in finding number 6.

6. Included in findings numbered 7, 8, and 9.

7. Included in finding number 10.

8. Included in finding number 12.

9. Included in finding number 13.

10. Included in finding number 16.

The Respondent submitted a document entitled Proposed Findings of Fact.

The document consists of five unnumbered paragraphs in the nature of a closing argument as opposed to proposed findings of specific facts. This document of the Respondent has been reviewed by the Hearing Officer and numbers 1-5 applied to the paragraphs therein. Rulings on those paragraphs are as follows:

1. Rejected as unnecessary.

2. Rejected as unnecessary with the exception of the proffered August 30, 1985 letter. In this regard see finding number 14.

3. Rejected as not supported by the evidence.

4. Rejected as a conclusion of law not supported by the evidence.

5. Rejected as unnecessary.

COPIES FURNISHED:

David L. Swanson, Esquire

Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32399-0750

Mr. James J. Hastings 836 19th Place

Vero Beach, Florida 32962

William O'Neil

Department of Professional Regulation General Counsel

130 North Monroe Street Tallahassee, Florida 32399-0750

Fred Seeley, Executive Director Construction Industry Licensing Post Office Box 2 Jacksonville, Florida 32201

Docket for Case No: 87-005328

Orders for Case No: 87-005328