STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

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

)

Petitioner, )

)

vs. ) CASE NO. 88-0654

)

ANTONIO BERRIZ, )

)

Respondent. )

)

RECOMMENDED ORDER

Upon due notice, this cause came on for formal hearing on July 26, 1988, in Miami, Florida, before Ella Jane P. Davis, a duly assigned Hearing Officer of the Division of Administrative Hearings.

APPEARANCES

For Petitioner: David L. Swanson, Esquire

Department of Professional Regulation

103 North Monroe Street Tallahassee, Florida 32399-0750

For Respondent: Lance Armstrong, Esquire

1035 Northwest 11th Avenue Miami, Florida 33136

ISSUES

1. Whether or not the business Respondent was associated with exceeded the scope of his contractor's license concerning the type of work undertaken, as described in the Amended Administrative Complaint, thereby violating Sections 489.129(1)(j), 489.115(1) and 489.117(2), F.S.?

   
   

2. Whether or not Respondent failed to properly supervise the job site activities on that job, thereby violating Sections 489.129(1)(m), (j); 489.119, and 489.105(4), F.S.?

   
   

3. Whether or not Respondent committed gross negligence, incompetence, or misconduct in connection with said job in violation of Section 489.129 (1)(m), by failure to supervise the contracting activities of the contracting business he was responsible for, so that Jorge Otero, President of Deluxe Construction Co., could obtain a building permit, exceed the scope of Respondent's license, and perform work that exhibited numerous defects?

BACKGROUND AND PROCEDURE

At the commencement of formal hearing, the parties stipulated ore tenus that Paragraph 6 of the Amended Administrative Complaint would be further amended to read:

The business Respondent was associated with exceeded the scope of his license concerning type of work, violating Section 489.129(1)(j); 489.115(1)(b); 489.117(2).

Thereafter, they entered into certain stipulated facts which are reflected among additional facts as found in this recommended order.

Petitioner presented the oral testimony of Lolv Jaramillo, Herbert Gopman, Jorge Otero, and Frank Abbott, and had admitted four exhibits. Respondent presented neither oral testimony nor offered any exhibit.

No transcript was provided. Respondent late-filed its post-hearing proposals, but each party's proposed findings of fact have been considered and are ruled upon in the appendix to this recommended order, pursuant to Section 120.59(2), F.S.

FINDINGS OF FACT

1. At all times material, Respondent was a licensed certified building contractor in the State of Florida, holding license number CB C002799 and was listed as the sole qualifying agent for Deluxe Construction Company. Deluxe could have had more than one qualifying agent but it did not.

   
   

2. Jorge Otero was the sole owner, officer, and director of Deluxe Construction Company (Deluxe). He is not now, and never has been, a licensed contractor.

   
   

3. Deluxe was formed in 1986, and Otero operated the company out of his home.

   
   

4. In August 1986, Deluxe contracted with Lolv Jaramillo to remodel the Jaramillo residence in Miami for $23,800.

   
   

5. Prior to the Jaramillo job, Deluxe had remodeled or added to several other residences. On those jobs, Respondent signed the building permit applications brought to him by Otero and made periodic inspections of the work, but Respondent never accepted any compensation from Deluxe for his services as qualifying agent of the company. Respondent was employed full-time otherwise. Before the Jaramillo job, Otero had had similar relationships with other contractors.

   
   

6. Prior to beginning construction, Respondent met the Jaramillos at their residence at the request of Otero to discuss the possibility of the Jaramillos arranging a second mortgage through the brokerage firm which was Respondent's regular full-time employer. The Jaramillos were not told, and were not aware, that Respondent was affiliated with Deluxe. They relied on no representations of Respondent in eventually selecting Deluxe to do their construction job. The eventual contract between the Jaramillos and Deluxe was not conditioned on borrowing from Respondent's regular employer, and, in fact, the Jaramillos did

   not borrow from Respondent or his employer and obtained their financing elsewhere.

   
   

7. The Jaramillos eventually instructed Otero to begin work, which he did. Otero first obtained the necessary building permit by going to the building department, filling in Respondent's contractor's license number on the application there, and signing his own name as qualifier. When Otero signed for the building permit, Respondent was out of town. Otero did not inform Respondent in advance of what he was going to do nor did Respondent discover Otero had done this until much later. On all previous contracts, Respondent had signed the permit applications and made the inspections in the manner described in finding of fact 5, supra. Respondent had done nothing to encourage Otero to think he could obtain a building permit as he did for the Jaramillo job.

   
   

8. After Deluxe began construction at the Jaramillos' home, Otero was the sole supervisor on the job. After the Jaramillos paid Deluxe $14,000 of the contract price, they became dissatisfied with the pace and quality of the work done by Deluxe and they terminated the contract.

   
   

9. According to Harry Gopman, structural engineer, the work done by Deluxe contained violations of local construction codes, but there is no evidence that Otero, Respondent, or anyone associated with Deluxe was convicted or found guilty of any crime.

   
   

10. The work undertaken by Deluxe included plumbing work which Respondent was not licensed to perform.

    
    

11. The work done by Deluxe and subcontractors under its supervision contained deviations from acceptable industry practice, including rendering a major load-carrying girder useless by penetrating it for the insertion of an air duct for the central air-conditioning system; cutting a concrete doorway lintel for insertion of another air duct, thus destroying the structural integrity of that lintel; and creating a structural hazard by placing a flat roof on the rear addition which severely "ponded" in rainstorms.

    
    

12. From the evidence as a whole, it may be inferred that Respondent originally knew he was the sole qualifying agent for Otero/Deluxe. Otero did not affirmatively tell Respondent he had another qualifying agent for the job. However, since Otero kept telling Respondent that the Jarmillos were still having trouble getting financing, it was reasonable for Respondent to believe a building permit was not needed and construction would not begin until financing was found. It was after the commencement of construction, but prior to the termination of the contract by the Jaramillos, that Otero finally informed Respondent that he had begun work on the Jaramillo residence. It is not clear whether Respondent knew that the building permit bore his license number until after the termination of the contract.

    
    

13. Respondent never visited the Jaramillo job site during construction. Respondent did not monitor the company finances, did not review subcontractual agreements, did not review invoices from subcontractors and materialmen, and did not call for inspections on the Jaramillo job.

    
    

14. There is unrefuted expert testimony by Frank Abbott, architect and licensed general contractor, that a qualifying agent should do the things, but there is insufficient evidence to show that Respondent had a clear understanding that such was his position for the Jaramillo job.

    CONCLUSIONS OF LAW

    
    

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

16. The pertinent law in this matter is: Section 489.129...

    1. The board may revoke, suspend, .

       the certificate or registration of a contractor and impose an administrative fine not to exceed $5,000, place a contractor on probation, or reprimand or censure a contractor if the contractor, or if the business entity or any general partner, officer, director, trustee, or member of a business entity for which the contractor is a qualifying agent, is found guilty of any of the following acts:

       * * *

       (b) Being convicted or found guilty, regardless of adjudication, of a crime in any jurisdiction which directly relates to the practice of contracting or the ability to practice contracting.

       * * *

       (d) Wilful or deliberate disregard and violation of the applicable building codes or laws of the state or of any municipalities or counties thereof.

       * * *

       (j) Failure in any material respect to comply with the provisions of this act.

       
       

       (m) Upon proof that the licensee is guilty of fraud or deceit or of gross negligence, incompetency, or misconduct in the practice of contracting. (Emphasis supplied)

       
       

       Section 489.117 ...

    2. Registration allows the registrant to engage in contracting only in the counties, municipalities, or development districts where he has complied with all local licensing requirements and only for the type of work covered by the registration.

       
       

17. Section 489.119 sets out the duties and responsibilities with regard to contractors' qualifying agents.

    
    

18. It is Petitioner's position that as sole qualifying agent for Deluxe, Respondent had the responsibility to "supervise, direct, manage, and control the contracting activities of" that company pursuant to Section 489.105(4), F.S., and that Respondent failed to exercise this responsibility, left supervision of the company in the hands of the unlicensed Otero, and that these gentlemen's relationship amounted to an illicit loan of Respondent's license to Otero. It

    is noted that Petitioner did not specifically charge Respondent under Section 489.129(1)(e), (f), or (g), F.S.

    
    

19. Respondent was not licensed to do plumbing and Deluxe attempted to do plumbing, so Petitioner further contends that Respondent's failure to properly supervise the contracting activities of Deluxe allowed Otero to exceed the scope of Respondent's license in violation of Section 489.115(1)(b), F.S. See, also Section 489.129(1)(j), F.S.

    
    

20. Lastly, Petitioner asserts that Respondent's failure to properly supervise the contracting activities of Deluxe also allowed work on the Jaramillo job to contain code violations and deviations from acceptable industry practice, and constitutes gross negligence in the practice of contracting in violation of Section 489.129(1)(m), F.S.

21. Section 489.105 (4) defines "qualifying agent" as: a person who possesses the requisite

    skill, knowledge, and experience, and has

    the responsibility to supervise, direct, manage, and control the contracting activities of the business entity with which he is connected, who has the responsibility to supervise, direct, manage and control construction activities on a job for which he has obtained the building permit and whose technical and personal qualifications have been determined by investigation and examination as provided in this act, as attested by the department. (Emphasis supplied)

    
    

22. Respondent contends that because there could be several qualifying agents and because Respondent did not sign/obtain the building permit for the Jaramillo job, he cannot be disciplined.

    
    

23. Although the parties' have advanced no case law supportive of their respective positions, the cases on point provide at least a modicum of guidance. The first case of note is Alles v. Department of Professional Regulation, 423 So.2d 624 (Fla. 5th DCA 1982), wherein, after a comprehensive analysis of Section 489.119, F.S., the court determined that where Alles was the qualifying agent for Univel Corporation but Univel had an arrangement with Dynamic Construction as to a specific project, and by agreement the designated agent of Dynamic obtained the building permit and was the actual supervising authority of the construction on that project, and the project collapsed, Alles was still subject to be professionally disciplined by revocation of his license since he had a statutorily imposed duty, as sole qualifying agent of Univel, to supervise all of its projects. Therein, the court observed:

    
    

    The obvious purpose of these statutes allowing a company to act as a contractor is to insure that projects undertaken by a company are to be supervised by one certified and licensed by the board. To allow a contractor to be the "qualifying agent" for a company without placing any requirement on the contractor to exercise

    any supervision over the company's work done under his license would permit a contractor to loan or rent his license to the company. This 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. Thus, the Board was correct in determining that appellant had a statutorily imposed professional duty, as sole qualifying agent of record of Univel, to supervise all of Univel's projects.

    
    

    Appellant's argument that the existence of "non-record de facto qualifying agents" reduces his duty would also permit circumvention of this result ...

    
    

    However, Alles' case progeny involve only situations in which the contractor/qualifying agent had at least secured the building permit. In Gatwood v. McGee, 475 So.2d 720 (Fla. 1st DCA 1985), the qualifying agent was held liable in negligence when he secured the permit, then sold the project and left it to others to finish without his personal supervision. In Hunt v.

    Department of Professional Regulation (Construction), 444 So.2d 997 (Fla. 1st DCA 1983), one of several qualifying agents for a corporation secured the building permit but did not supervise, and another corporate qualifying agent did not secure the permit but supervised the project to an extent sufficient to involve him in the project. Both were disciplined by the Board. In Hunt, the court specifically stated.

    
    

    It should be noted that we have not decided whether the Board was correct in finding that as a matter of law all qualifiers of a corporation are responsible under the terms of Section 489.119(2), F.S. (1981) [formerly

    Section 468.107(2), F.S. (Supp. 1978)] for the supervision of construction undertaken by

    the corporation...

    
    

24. Each of the foregoing cases interprets the law prior to the 1983 amendment to Section 489.105(4), which amendment adds to the definition of "qualifying agent," the language emphasized above and argued by Respondent, that in order to be a qualifying agent a contractor must be a person "... who has the responsibility to supervise, direct, manage and control construction activities on a job for which he has obtained a building permit;..."

    
    

25. The rules of statutory construction mandate the presumptions that the Legislature meant what it said and that it had some purpose in enacting such an amendment. It is not unreasonable to infer that the Alles decision in the year immediately preceding the statutory amendment may have precipitated the amendatory language.

    
    

26. Accordingly, since Respondent did not apply for the Jaramillo building permit, since it is unclear that he knew he was still the sole qualifying agent for Deluxe at the time he found out the job was in progress, and since Petitioner did not demonstrate that Respondent had any opportunity to rectify

matters after the fact, Respondent cannot be considered the qualifying agent for the Jaramillo job nor may he be disciplined in connection therewith.

RECOMMENDATION

Upon the foregoing findings of fact and conclusions of law, it is recommended that the Construction Industry Licensing Board enter a final order dismissing all charges against Respondent.

DONE and RECOMMENDED this 31st day of August, 1988, at Tallahassee, Florida.

ELLA JANE P. 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 31st day of August, 1988.

APPENDIX TO RECOMMENDED ORDER, CASE NO. 88-0654

The following constitute rulings pursuant to S. 120.59(2), Florida Statutes, upon the parties' respective Proposed Findings of fact (FOF).

Petitioner PFOF:

1-7, and 9-15. Accepted as modified to more exactly reflect the unrefuted testimony.

8. Accepted except for hearsay and subordinate and unnecessary material.

Respondent's PFOF:

1-5, 7, 9. Accepted as modified to more exactly reflect the unrefuted testimony.

6. Rejected as stated. FOF 7 and 12 more correctly reflects the state of the record as a whole.

8. Rejected as stated because as stated it is a legal conclusion. A finding of fraud requires a finding of an affirmative intent which cannot be made upon the evidence presented.

COPIES FURNISHED:

David L. Swanson, Esquire

Department of Professional Regulation

103 North Monroe Street Tallahassee, Florida 32399-0750

Lance Armstrong, Esquire 1035 Northwest 11th Avenue Miami, Florida 33136

Fred Seely, Executive Director Construction Industry Licensing Board Post Office Box 2

Jacksonville, Florida 32201

Bruce D. Lamb, General Counsel Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32399-0750

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

AGENCY FINAL ORDER

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

STATE OF FLORIDA

DEPARTMENT OF PROFESSIONAL REGULATION CONSTRUCTION INDUSTRY LICENSING BOARD

DEPARTMENT OF PROFESSIONAL REGULATION,

Petitioner,

-vs- CASE NO.: 82087

DOAH CASE NO.: 88-0654

ANTONIO BERRIZ,

License Number: CB C002799

Respondent.

/

FINAL ORDER

THIS MATTER came before the Construction Industry Licensing Board pursuant to Section 120.57(1)(b)(9), Florida Statutes, on October 13, 1988, in Tampa 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 neither present nor represented by counsel at the board meeting.

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

FINDINGS OF FACT

1. The hearing officer's findings of fact are hereby approved and adopted.

2. There is competent, 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 hearing officer's conclusions of law, are hereby adopted except where they are in contradiction with the Petitioner's exceptions to Recommended Order which is hereby adopted and fully incorporated herein by reference.

   
   

3. Respondent can be disciplined for violations committed by the entity for which he was the sole qualifier even though Respondent failed to obtain a building permit for the job in question.

   
   

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

WHEREFORE, IT IS HEREBY ORDERED AND ADJUDGED:

Respondent shall pay an administrative fine of one thousand dollars ($1,000) within thirty (30) days of the date of filing of the Board's Final Order in this cause.

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 N. 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 1st day of December, 1988.

E. E. SIMMONS, 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

Antonio Berriz

1035 N.W. 11th Avenue Miami Florida 33136

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 12th day December, 1988.

Docket for Case No: 88-000654

Orders for Case No: 88-000654