STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF PROFESSIONAL ) REGULATION, CONSTRUCTION ) LICENSING BOARD )

)

Petitioner, )

)

vs. ) CASE NO. 87-5331

) MARK ALLAN VANDERWATER, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the above matter was heard before the Division of Administrative Hearings by its duly designated Hearing Officer, Don W. Davis, on January 22, 1988, in Miami, Florida. The following appearances were entered:

APPEARANCES

For Petitioner: Lee Sims, Esquire

Department Of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32399-0750

For Respondent: Mark Allan Vanderwater, Pro Se.

3244 Coral Ridge Drive

Coral Springs, Florida 33065 BACKGROUND

Petitioner alleged in an administrative complaint that Respondent committed certain acts prohibited by provisions of Chapter 489, Florida Statutes. The complaint charged that Respondent had 1) aided an unlicensed contractor by obtaining permits for the job being performed by the unlicensed contractor and

1. had failed to properly supervise the finances on that particular job after obtaining the permits. Respondent disputed he allegations of the administrative complaint and requested a formal administrative hearing.

   
   

   At hearing, the Petitioner presented the testimony of three witnesses and thirteen evidentiary exhibits. Respondent presented the testimony of four witnesses and six evidentiary exhibits. Petitioner's motion at hearing for minor amendment of the administrative complaint was granted by the Hearing Officer without objection from Respondent.

   
   

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

   FINDINGS OF FACT

   
   

   1. Respondent made a timely request for formal hearing in response to Petitioner's Administrative Complaint.

      
      

   2. Respondent is Mark Allen Vanderwater. At all times pertinent to these proceedings, Mr. Vanderwater held certified general contractor license number CG-CO15948. His address of record is Coral Springs, Florida.

      
      

   3. John Andrews Anagnostaras, acting on behalf of Expedia Limited (Expedia), executed an agreement on December 17, 1986 with 2C.D.M., Inc., represented by Mark Allan Vanderwater, the Respondent. Under terms of the agreement ("Expedia- Vanderwater Agreement"), the Respondent's corporation agreed to act as General Contractor and provide certain services to Expedia in connection with the construction of the project known as "Bergin's Beer & Wine Garden" located in the Bayside Marketplace Development in Miami, Florida. This agreement titled the role of Expedia as "Owners Project Representative/Construction Manager."

      
      

   4. Among services to be provided by Respondent's corporation under the terms of the Expedia-Vanderwater Agreement, were:

      
      

      1. general construction services consisting of day to day supervision as requested by Expedia;

      2. provision of required licensing necessary to obtain construction permits;

      3. securing and delivery to Expedia of any required inspection, testing and approval certificates;

      4. collection and delivery to Expedia of all written warranties and equipment manuals;

      5. provision to Expedia of proof of Respondent's workman's compensation and general liability insurance coverage; and

      6. coordination of subcontractors and suppliers and delivery of the completed project to Expedia.

         
         

   5. Payments to Respondent, under terms of the Expedia-Vanderwater Agreement, were to consist of a $500 payment upon execution of the document, professional fees of $2,500, and $125 per day for daily supervision. As adduced from testimony at the hearing, a grand total of approximately $8,500 in fees was generated by Respondent. He received payments totalling $5,000 and claims he is still owed $3,500 by Expedia.

      
      

   6. The Expedia-Vanderwater Agreement specifically provided that payments to the various suppliers and subcontractors would be made directly by Expedia, as opposed to Respondent making such payments.

      
      

   7. While Respondent ordered materials, he made no payments of any consequence to subcontractors. Rather, the customers, Bergin and Sherman, made monetary payments to John Andrews Anagnostaras on behalf of Expedia. Numerous liens totalling at least $30,000 have been filed by various subcontractors due to lack of payment for supplies or services.

   8. The Expedia-Vanderwater Agreement further stipulated that Respondent's corporation would conduct all communications with the owners of the project through Expedia.

      
      

   9. The evidence fails to show that any communication from Respondent to Mr. Bergin or Ms. Sherman, the owners and customers, ever occurred through the conduit of Expedia. For that matter, the proof establishes that neither of the owners was aware of the involvement of Respondent or his corporation in the construction of the project until the closing days of March, 1987.

      
      

   10. Subsequent to execution of the "Expedia-Vanderwater Agreement," John Andrews Anagnostaras, again acting as representative for Expedia, executed an agreement with customers Kevin Bergin and Arlene Sherman. This agreement ("Expedia-Bergin Agreement") was signed on January 16, 1987, to confirm commencement of work on the Bergin project as of December 20, 1986. The Expedia-Bergin Agreement contemplated total project costs of $130,000 for construction of the commercial beer and wine retail store. The agreement designated Expedia as "Contractor" on the project. While the document reflects the signature of Arlene Sherman in a space provided for a witness, testimony at hearing established Ms. Sherman was also an owner in the project.

       
       

   11. An agreement with a subcontractor for supply and installation of the electrical network and accessories needed on the Bergin project was signed by John Andrews Anagnostaras on January 8, 1987. He also executed an agreement on January 7, 1987, with another subcontractor for manufacture, supply and installation of millwork on the Bergin project.

       
       

   12. An application, signed by Respondent and bearing the name and local address of Arlene Sherman as owner, resulted in the issuance of a building permit for construction of interior partitions, millwork, electrical and plumbing services, floor finishing and ceiling suspension work associated with the Bergin project. The permit was issued on January 29, 1987, well after the beginning of the project as documented in the Expedia-Bergin Agreement.

       
       

   13. Other than the pulling of the building permit and ordering of materials, Respondent's involvement with the project was negligible until the latter part of March, 1987.

       
       

   14. On March 18, 1987, during the course of a "walk through" inspection of the development where the Bergin project was being constructed, Petitioner's investigator was apprised that certain records of the developer of the Market Place at Bayside, Rouse Corporation, reflected the identity of the contractor on the Bergin project to be John Andrews Anagnostaras. Subsequent investigation revealed that neither John Andrews Anagnostaras or Expedia Limited are, or ever have been, registered or qualified as general contractors by the Florida Construction Licensing Board as required by law of the State of Florida. While the record is not clear regarding the exact date, a short time later a cease and desist agreement was executed by John Andrews Anagnostaras with the Petitioner wherein Mr. Anagnostaras agreed to desist from unlicensed contracting work.

       
       

   15. At about the time of the exposure of the unlicensed status of Expedia and its representative, Ms. Sherman was informed by Petitioner's investigator that the Bergin project would be shut down because of the contractor's lack of license. This was also the time when she received her first knowledge of the involvement of the Respondent in the Bergin project. Testimony of Kevin Bergin substantiates this evidence. Although he possessed a vague recollection of seeing Respondent in the background in one meeting with John Andrews

       Anagnostaras, Kevin Bergin learned of the Respondent's involvement in the construction project and the unlicensed situation regarding Expedia on or about April 1, 1987.

       
       

   16. Ms. Sherman met with Respondent at the construction site to prepare a "punch list" of unfinished items on the Bergin Project around the third week of March, 1987. This list of needs was formalized by Respondent and presented to Ms. Sherman on April 10, 1987.

       
       

   17. Respondent accomplished a minimal number of the items set forth in the "punch list," but failed to correct many major noted deficiencies such as installation of a brass bar, kitchen cabinets, beveled mirrors, ventilation for an ice machine, or replacement of three quarter inch counter topping for the previously installed one quarter inch topping.

       
       

   18. Ms. Sherman visited the project construction site an average of four days a week beginning in February, 1987, but has no clear recollection of the Respondent being there until meeting with him to prepare the "punch list." She does recall discussing the delay in millwork with the Respondent, and, while the date of this conversation could not be recalled, the discussion likely took place in the latter part of March, 1987.

       
       

   19. Respondent testified he appeared on the project construction site approximately 30 of the roughly 90 days of the project's duration. The length of his visits varied from a few minutes to a few hours, according to Respondent. He also testified that he considered himself the general contractor on the project and was without knowledge of the Expedia-Bergin Agreement assigning that role to Expedia. Further, he testified that he figured the owners lived in New York. This testimony of the Respondent is not credited in view of the address of Ms. Sherman on the building permit application and the Respondent's unsuccessful, insistent and contradictory attempts during the hearing to have Ms. Sherman recall several meetings with him during the time of the construction of the project.

       
       

   20. While Respondent provided a March 9, 1987, notice to the Rouse Corporation as the developer of the Marketplace at Bayside that Respondent was providing general contracting, site supervision and coordination services in connection with the Bergin project, the evidence fails to show provision of similar notice to owners Sherman and Bergin.

       
       

   21. Respondent was aware that Expedia and John Andrews Anagnostaras were not licensed as general contractors under Florida law. Respondent failed to qualify either Mr. Anagnostaras or Expedia as an affiliate with Respondent's corporation as required by section 488.119, Florida Statutes.

       
       

   22. Respondent aided a contractor (John Andrews Anagnostaras d/b/a Expedia) not properly licensed under state licensing laws by obtaining or authorizing the obtaining of a permit, through use of Respondent's license, for a construction job known as "Bergin's Beer and Wine Garden."

       
       

   23. Respondent failed to properly supervise the finances on such construction job. By his own admission and the terms of the Expedia-Vanderwater Agreement, he relinquished to the unlicensed contractor all responsibility for finances connected with subcontractors.

       CONCLUSIONS OF LAW

       
       

   24. The Division of Administrative Hearings has jurisdiction of the subject matter and the parties thereto pursuant to subsection 120.57(1), Florida Statutes (1987).

       
       

   25. The Respondent's action, as found above, in contracting with an unlicensed entity to allow Respondent to provide the services set forth in the Expedia Vanderwater Agreement is clear and convincing evidence of guilt as to the charge of aiding a contractor not properly licensed under state licensing laws (paragraph four of the Administrative Complaint). Such action by Respondent is tantamount to creation of an artifice to allow Expedia and John Andrews Anagnostaras the privilege of acting as a general contractor without meeting the licensure requirements of the State of Florida, and constitutes violation of requirements of section 489.119 and subsections 489.105(4), and 489.129(1)(e), (j) and (m), Florida Statutes.

       
       

   26. It is determined the Respondent is not guilty of using his capacity as a contractor under a registration not in his name, since such registration was never issued to the unlicensed contractor in this case. Therefore, there is no violation of subsection 489.129(1)(g), Florida Statutes, as charged in paragraph four of the administrative complaint.

       
       

   27. As to allegations in paragraph five of the administrative complaint that Respondent failed to adequately supervise the finances on the Bergin project, one must confront first the issue of whether Respondent had such a duty in view of the content of the Expedia-Vanderwater Agreement. However, in Hunt

       v. Department of Professional Regulation, Construction Industry Licensing Board,

       444 So.2d 997 (Fla. App. 1 Dist. 1983), the court, following the precedent of Alles v. Department of Professional Regulation, 423 So.2d 624 (Fla. 5th DCA 1982), determined that a defense of no responsibility to a charge of failure to adequately supervise would:

       
       

       ... completely circumvent the legislative intent that an individual, certified as competent, be professionally responsible for supervising construction work on jobs requiring a licensed contractor.

       
       

   28. It is concluded that the Respondent's failure to properly supervise the finances of the project is demonstrated by the clear and convincing evidence of:

       
       

       1. his execution of the Expedia-Vanderwater Agreement;

       2. his admission of ordering materials for the job although the evidence shows he did not sign the subcontract agreements and;

       3. his submission of the finances of the Bergin project, with knowledge of the unlicensed status of Expedia and John Andrews Anagnostaras, to the unlicensed contractor's control.

   29. The result of these actions of the Respondent was the filing of liens against the customer's property, action defined as financial mismanagement or misconduct in the practice of contracting by section 489.129(1)(h), Florida Statutes. Such a result also constitutes violations of subsections 489.129(j) and (m), Florida Statutes.

       
       

   30. No evidence was offered to show Respondent's corporation, 2C.D.M., Inc., had not been properly qualified by Respondent. Hence, there is no violation of section 489.105(4), Florida Statutes, as alleged in paragraph five of the Administrative Complaint.

RECOMMENDATION

Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that a final order be entered finding Respondent guilty of the

offenses charged in the administrative complaint and imposing a penalty of $1500 and probation for a period of one year upon such terms and conditions as may be set by the Construction Industry Licensing Board.

DONE AND RECOMMENDED this 18th day of February, 1988, in Tallahassee, 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 February, 1988.

APPENDIX TO RECOMMENDED ORDER, CASE NO. 87-5331

The following constitutes my specific rulings in accordance with section

120.59 (2), Florida Statutes, on all proposed findings of fact submitted by the parties:

Proposed findings submitted by Petitioner

Proposed findings submitted by the Petitioner consisted of 12 paragraphs, paragraphs 5-12 being unnumbered. Those paragraphs have been numbered and all proposed findings are treated as follows:

1. Included in finding number 2.

2. Rejected as unnecessary.

3. Included in finding number 10.

4. Included in finding number 10.

5. Included in findings number 3, 4, 10, 12, 14 and 15.

6. Included in finding number 14.

7. Included in findings number 3, 4, 6, 14, IS and 22.

8. The first sentence is included in finding number 16. Remainder rejected as unnecessary.

9. Included in findings 16, 17 and 18.

10. Included in findings 7 and 11.

11. Included in finding number 7.

12. Included in findings 18 and 19.

Proposed findings submitted by Respondent

While unrepresented at hearing, Respondent's proposed findings were filed on his behalf by Edmond L. Sugar, Esquire. Although untimely filed with the Division of Administrative Hearings (6 days after the required deadline determined at hearing) and unnumbered, those 21 paragraphs have been numbered 1-

21 and are treated as follows:

1. Included in finding number 2.

2. Rejected as unnecessary.

3. Included in finding number 10.

4. As to co-ownership, this proposal is included In finding number 10. The remainder is rejected as unnecessary.

5. Rejected as contrary to the weight of the evidence. Mr. Anagnostaras held himself out to the owners as an independent contractor.

6. Included in findings numbered 3, 4 and 6.

7. Rejected as not supported by the evidence, see Petitioner's exhibit number 5.

8. Rejected on the basis of credibility.

9. Included in finding number 19.

10. Included in finding number 12.

11. Rejected as not consistent with the evidence.

12. Rejected as not consistent with the evidence.

13. Rejected as unnecessary.

14. Rejected as unnecessary.

15. Included only as to signing of cease and desist agreement in finding number 14. Rejected as to remainder of proposal as not supported by the evidence. See Petitioner Exhibit 3.

16. Included in finding number 17 as to date documentation of the punch list was submitted to Ms. Sherman. Remainder of proposal rejected as not supported by the evidence.

17. Rejected, not supported by the evidence.

18. Rejected as unnecessary.

19. Rejected as unnecessary and not supported by the evidence.

20. Rejected as not supported by the evidence.

21. Rejected as not supported by the evidence.

COPIES FURNISHED:

Lee Sims, Esquire Department of Professional

Regulation

130 North Monroe Street Tallahassee, Florida 32399-0750

Mark Allen Vanderwater 3244 Coral Ridge Drive

Coral Springs, Florida 33065

Edmond L. Sugar, Esquire HUNTER & HUNTER, P.A.

1930 Tyler Street

Hollywood, Florida 33020

William O'Neil General Counsel

Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32399-0750

Fred Seely, Executive Director Post Office Box 2 Jacksonville, Florida 32201

Docket for Case No: 87-005331

Orders for Case No: 87-005331