STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF PROFESSIONAL )

REGULATION, CONSTRUCTION )

INDUSTRY LICENSING BOARD, )

)

Petitioner, )

)

vs. ) CASE NO. 87-5591

)

SANDRA A. PERPICH, )

)

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 February 9, 1988 in Fort Lauderdale, 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: George Perpich

Qualified Representative Post Office Box 597 Dania, Florida 33004

BACKGROUND

By administrative complaint, the Petitioner charged Respondent 1) aided an unlicensed contractor and 2) did business under a name not on Respondent's license. Respondent denied the charges. This administrative hearing followed.

The Petitioner presented testimony of three witnesses and six evidentiary exhibits. Respondent presented testimony of four witnesses and nine evidentiary exhibits. Proposed findings of fact submitted by the Respondent are addressed in the appendix to this recommended order. Petitioner elected not to submit proposed findings.

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

FINDINGS OF FACT

1. The Petitioner is the Department of Professional Regulation.

2. The Respondent is Sandra Perpich, holder of certified general contractor license CG-C027690 and qualifying agent for a corporation known as B.H.G.C., Inc., of Miami, Florida, at all times pertinent to these proceedings. Her address of record is Miami, Florida.

   
   

3. The business, which Respondent served as qualifying agent, B.H.G.C., Inc., published a notice of intention to operate under the fictitious name "Blue Haven Pools and Spas" in a newspaper known as the Miami Review. Dates of publication of the notice were December 16, 23, and 30, 1986 and January 6, 1987. The affidavit attesting to the publication of the notice was subsequently recorded in the official records of Dade County, Florida.

   
   

4. The Respondent submitted a request to Petitioner to change her registration status from qualifying agent for "B.H.G.C., Inc." to qualifying agent for "B.H.G.C., Inc., d/b/a Blue Haven Pools & Spas." The Respondent signed the form requesting this change in Petitioner's records on February 27, 1987. The document was forwarded to an attorney and, eventually, on to the Petitioner.

   
   

5. On March 22, 1987, a newspaper advertisement was published in the Miami Herald extolling a swimming pool sale. The advertisement bears the logo of "Blue Haven Pools and Spas" with a trademark legend. In immediate proximity to the logo and registered trademark symbol, here is printed "BHGC, Inc. CGC 027690 Contractors for Blue Haven Pools."

   
   

6. Patricia Simon a/k/a Patricia McDonald was an investigator for Petitioner at the time of the "Blue Haven" pool advertisement. She met with the Respondent on April 14, 1987. Respondent was informed by the Investigator in that meeting that "Blue Haven Pools" was not qualified as a contractor as required by Florida law. The Respondent was told it would be necessary for her to become the qualifying agent for "Blue Haven Pools And Spas" in addition to being the qualifying agent for B.H.G.C. Inc. The Respondent told the Investigator that approximately eleven pools were under construction at that time.

   
   

7. Subsequent to the meeting with the Petitioner's investigator, Respondent was sent a notice dated May 3, 1987, setting forth Petitioner's rejection of the previously filed request for change of the name registration of B.H.G.C., Inc., because:

   
   

   1. a credit report had not been received by Petitioner.

   2. a renewal fee of $85.00 had not been submitted with the request.

   3. the financial statement submitted by the Respondent did not meet the minimum requirements for her license.

1. The Respondent signed applications for building permits issued for construction of fourteen swimming pools during the period of February 25 through May 22, 1987. Twelve permits were issued to "Blue Haven". The term "Blue Haven" stands for "Blue Haven Pools & Spas" and is the fictitious name adopted by the corporation qualified by Respondent. All twelve permits were issued prior to the Petitioner's May 3, 1987 rejection of Respondent's request to become the qualifying agent for "Blue Haven Pools and Spas." Of the two remaining permits, one was issued on May 22 and the other on May 25, 1987.

   These two permits were issued to B.H.G.C., Inc.

2. Respondent testified she did not receive the written notification of the Petitioner's May 3, 1987 rejection until September 18, 1987. However, by that time she had become concerned about the time which had elapsed since her application for change in registration status and had severed her business ties with B.H.G.C., Inc. In addition she had placed her license in "inactive" status with the Petitioner.

   
   

3. Based on testimony of Michael O'Connor, enforcement officer for the Metropolitan Dade County Building and Zoning Department, it is found that the County believed issuance of permits to "Blue Haven" to be the same as issuance of permits to B.H.G.C., Inc.

   
   

4. Form contracts utilized by the company qualified by Respondent carried the trade mark symbol and logo "Blue Haven Pools & Spas." However, spaces on the agreement for signature of the seller, or submitting party, were stamped above the signature line with the statement "B.H.G.C. INC. D.B.A. Blue Haven Pools & Spas."

   
   

5. No evidence was offered to show "Blue Haven Swimming Pools & Spas" to be a subsidiary or parent corporation of B.H.G.C., Inc. Further, no proof was presented to show the existence of a joint venture between B.H.G.C., Inc., and any other entity.

   
   

6. Respondent did not aid an unlicensed contractor since "Blue Haven Pools And Spa" was the same legal entity as B.H.G.C., Inc.

   
   

   CONCLUSIONS OF LAW

   
   

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

   
   

8. The compliance of B.H.G.C., Inc. with the fictitious name statute (section 865.09, Florida Statutes) obviated any requirement for Respondent to go through the process of requalifying that corporation simply because of the adoption of a fictitious name. While subsection 21E-15.0021 (5), Florida Administrative Code, requires that the parent or subsidiary of a qualified corporation be separately qualified, such was not evidenced in this case. "Blue Haven Pools and Spas" may well be a foreign manufacturer or franchise grantor for a particular brand of swimming pool, but this would not constitute, on the basis of the evidence presented at hearing, a joint venture with the corporation qualified by the Respondent. In the absence of evidence that permits were pulled for any entity other than the qualified corporation acting under a duly adopted fictitious name, it is determined the Respondent did not aid an unlicensed contractor to build swimming pools. "Blue Haven Pools & Spas" is the fictitious name of the qualified corporation.

   
   

9. While the Respondent did put the name "Blue Haven" on certain building permit applications, this was a synonym for the fictitious name of the corporation. Standing alone, such action falls short of "acting in the capacity of a contractor" in the manner contemplated by section 489.129(1)(g), Florida Statutes.

   
   

10. However, the Respondent did not furnish evidence of statutory compliance with the adoption of a fictitious name by the corporation at the time

of qualifying B.H.G.C., Inc. This constitutes a technical violation of the requirement set forth in section 489.119 (2), Florida Statutes.

RECOMMENDATION

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

doing business under a name not on her license as a result of failure to provide

evidence of compliance with the fictitious name statute in the original qualifying application. In the absence of evidence of previous violations, it is further recommended that Respondent be provided a letter of guidance and no further penalty be imposed upon the Respondent.

DONE AND RECOMMENDED this 29th day of February , 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 29th day of February, 1988.

APPENDIX

The following constitutes my specific rulings on findings of fact submitted by the Respondent. The proposed findings, consisting of five numbered paragraphs, were contained in a letter to the Hearing Officer dated February 17, 1988.

1. Included in finding number 15.

2. Included in findings number 2, 3, 5, and 13.

3. Rejected as unnecessary.

4. Addressed in part in findings number 4, 7, and 11. Remainer as necessary.

5. Addressed in finding 11.

COPIES FURNISHED:

Lee Sims, Esquire Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32399-0750

Mr. George Perpich Post Office Box 597 Dania, Florida 33004

Ms. Sandra A. Perpich Post Office Box 597 Dania, Florida 33004

William O'Neil, Esquire Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32399-0750

Mr. Fred Seely Executive Director

Construction Industry Licensing Post Office Box 2 Jacksonville, Florida 32201

Docket for Case No: 87-005591

Orders for Case No: 87-005591