STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF PROFESSIONAL )

REGULATION, CONSTRUCTION )

INDUSTRY LICENSING BOARD, )

)

Petitioner, )

)

vs. ) CASE NO. 88-0730

)

JAMES J. HASTINGS, )

)

Respondent. )

)

RECOMMENDED ORDER

By agreement of the parties, this cause came on for formal hearing on September 16, 1988, in Melbourne, Florida, before Ella Jane P. Davis, a duly assigned Hearing Officer of the Division of Administrative Hearings.

APPEARANCES

For Petitioner: G. W. Harrell, Esquire

Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32399-0750

For Respondent: James J. Hastings, pro se

205 Third Avenue

Melbourne Beach, Florida 32951 ISSUES

Respondent is charged with: Aiding and abetting a job undertaken by a contractor who is not properly licensed under state licensing laws by obtaining or authorizing the obtaining of a permit for said job, using Respondent's licensure, and thereby violating Section 489.129(1)(e), (m), (j); 489.119 and 489.105(4) Florida Statutes; with proceeding without a timely permit having been issued, violating local law, either deliberately or through improper supervision, in violation of Sections 489.129(1)(d), (m), (j), 489.119, and 489.105(4) Florida Statutes; with doing business under a name not on his license and a business which Respondent did not qualify, in violation of Sections 489.129(1)(g), (j), and 489.119 Florida Statutes; with gross negligence and/or incompetence in connection with said job, attributable either Respondent personally, or to Respondent's failure to properly supervise, in violation of Sections 489.129(1)(m), (j), 489.119, 489.105(4) Florida Statutes.

BACKGROUND AND PRELIMINARY STATEMENT

Petitioner presented the oral testimony of Zimmer Dominque, Candace Reinertz Hastings, Respondent James J. Hastings, Stan Alexander, and Mark Nasrallah, and had Exhibit P-1 and Exhibits P-3 through P-14 admitted in

evidence. Exhibit P-2, marked for identification, was withdrawn by Petitioner. Respondent testified on his own behalf and had admitted Exhibits R-1 through R- 9.

Petitioner provided a transcript of the proceedings and timely filed its proposed recommended order, the proposed findings of fact of which are ruled upon in the Appendix to this Recommended Order, pursuant to Section 120.59(2), Florida Statutes. Respondent filed no post-hearing proposals.

FINDINGS OF FACT

1. Petitioner is the state agency charged with the responsibility to prosecute administrative complaints pursuant to Chapters 489, 455, and 120, Florida Statutes, and the rules promulgated pursuant thereto.

   
   

2. At all times material to the Administrative Complaint, Respondent James

   J. Hastings was licensed as a certified general contractor in the State of Florida, holding license number CG C009847.

   
   

3. At all times material hereto, Respondent was a qualifying agent for Hastings Construction Company, Inc.

   
   

4. Respondent and Candace Reinertz are married. At all times material to the violations charged, she was operating under her maiden name for all purposes.

   
   

5. At all times material hereto, Candace Reinertz was not licensed by the Florida Construction Industry Licensing Board, and the Respondent had knowledge thereof.

   
   

6. Over several years, Ms. Reinertz regularly assisted Mr. Hastings in the operation of Hastings Construction Company, Inc., including day to day supervision of pool, small building, and house construction and pulling building permits for that corporation. She had been authorized in writing by Hastings to pull building permits for him on specific projects (not necessarily in a corporate name) at least since April 27, 1987.

   
   

7. At all times material hereto, Castles `n' Pools, Inc., 205 Third Avenue, Melbourne Beach, Florida, was a firm that was not qualified with the Construction Industry Licensing Board, and Respondent had knowledge thereof. This corporation was intended to become a venture to be run jointly by husband and wife. Castles `n' Pools, Inc. had been qualified as a corporation with the Florida Secretary of State and had received an occupational license. The corporate officers/directors were Reinertz and Hastings. However, a Florida Construction Industry Licensing Board License was never applied for by Ms. Reinertz in her own name nor was one applied for by Mr. Hastings as a qualifier for Castles `n' Pools, Inc.

   
   

8. On June 27, 1987, Castles `n' Pools, Inc., through Candace Reinertz, contracted with Zimmer Dominque for construction of a pool at Mr. Dominque's residence located at 866 Van Circle, N.E., Palm Bay, Florida, for $7,750. The contract promised completion of the pool by September 23, 1987, barring adverse weather and mishaps. It is Ms. Reinertz's testimony that she inadvertently filled in a Castles `n' Pools, Inc. blank contract when she intended to use a Hastings Construction Company blank contract. The blank forms are, indeed, very similar. Mr. Dominque's testimony is that he thought at all times that he was contracting with Castles `n' Pools, Inc., through Ms. Reinertz. Although he

   admits that at least by September 22, 1988, he considered Respondent in charge of the project and that he thereafter dealt directly with Respondent, Mr.

   Dominque's payment by checks made out to Castles `n' Pools and/or Candace Reinertz dated June 27, July 7, September 22, and September 24, 1987 (P-10) support a finding that all work to that point was progressing in the name of Castles `n' Pools. Also supportive of such a finding is that on July 6, 1987, Pyramid Equipment Service billed Castles `n' Pools for digging the hole for the pool (R-8) and on August 11, 1987, R & J Crane Service billed Castles `n' Pools for setting the pool in place (R-9).

   
   

9. However, the issuance of the building permit to Hastings Construction Company, Inc. and the chronology of how the permit came to be issued (see infra.) suggest that Mr. Hastings did not know about the Castles `n' Pools connection until at least late September. Respondent's and Ms. Reinertz' testimony that Respondent did not find out that the wrong contract had been used until after construction was underway on the Dominque property is unrefuted and the exact date of his discovery was not demonstrated, but he admits he did not attempt to qualify Castles `n' Pools once he found out.

   
   

10. On June 29, 1987, the Respondent authorized Candace Reinertz to pull a permit for the construction of a pool at Mr. Dominque's residence. The authorization, (P-12), does not specify either Castles `n' Pools nor Hastings Construction Company, Inc. as the construction corporation applicant. Ms. Reinertz's subsequent permit application was denied on July 2, 1987, by the Palm Bay Building Department, for failure to include a survey certified by a civil engineer or architect. The record does not reflect in what corporate name Ms. Reinertz made this initial application. She may not even have gotten as far as filling out a permit application before she was refused at the permit desk, but the line drawing prepared for that application (R-1) specifies that the line drawing was that of Hastings Construction Company, Inc. Mr. Hastings regularly did line drawings for Hastings Construction Company, Inc. projects on a particular machine in that corporation's offices. The certified survey requirement was a recent innovation of the Palm Bay Building Code.

    
    

11. On July 6, 1987, Castles `n' Pools, Inc. delivered the prefabricated fiberglass pool, excavated the site and dropped the pool in the hole. No further efforts of permanent installation occurred at that time, due to failure to obtain a permit.

    
    

12. A dispute then ensued between Hastings and Reinertz on one side and Mr. Dominque on the other over who must provide the survey and how. This dispute occasioned some delay in the project, but on July 26, 1987, Ms. Reinertz again applied, with a certified survey, to the Palm Bay Building Department for a permit for the construction of Mr. Dominque's pool, listing the builder as Hastings Construction Company, Inc. (P-5). On July 30, 1987, permit number 8702101 was issued by the Palm Bay Building Department for the construction of Mr. Dominque's pool by Hastings Construction Company, Inc. (P-6).

    
    

13. Thereafter, work on the pool progressed sporadically until September 22, 1987, when the pool floated up out of the ground. The pool floated up out of the ground during a rainstorm and after Respondent had left Mr. Dominque with instructions to fill the pool to a certain level with water. There is sufficient evidence to demonstrate that Mr. Dominque failed to follow Respondent's directions with precision.

14. Subsequent to September 22, 1987, the pool was reinserted in the excavation by crane and by October 2, 1987, the deck was installed. Two or three months later a crack appeared in the pool which has since been repaired, however, the drain and light still do not work properly, and Mr. Dominque had to pay an additional $50 for cleanup of the resulting debris. Some of the delay in completion of work on the pool can be attributed to the dispute about the survey, some to injury of a key employee, and some to heavy rains, but the testimony of Mr. Nasrallah, architect and expert contractor, is accepted that 30 to 45 days would be sufficient to install the entire pool except for the pool deck even in rainy weather. Also, Mr. Dominque's and Respondent's testimony is in agreement that Respondent (not Ms. Reinertz) was fired for a period of time and then rehired. The length of time and the dates that Respondent was off the job is unclear, but it was minimally from September 9 to September 22, 1987. Oversight of the work at all times was by the Respondent. Mr. Dominque has paid the total contract price of $7,750 and expressed himself that any amount he questioned has either "evened out" or been paid back by Respondent.

    
    

15. Stan Alexander is a certified general contractor and former chairman of the Florida Construction Industry Licensing Board. In his expert opinion as a contractor, construction began when the hole was first dug on July 6, 1987 and the pool was placed in it even temporarily. Also in his expert opinion as a contractor, Mr. Alexander determined that the contractor responsible for the installation of this pool was guilty of gross negligence or incompetence due in part to the insufficiency of dewatering devices (including a hydrostatic device) and placement of the responsibility to fill the pool on the home owner.

    
    

16. Mark Nasrallah is a registered Florida architect and a licensed general contractor. Also in his expert opinion as a contractor, construction began on the job when the pool was placed in the excavation. It is also Mr. Nasrallah's expert opinion that the contractor responsible for this job is guilty of gross negligence or incompetence.

    
    

17. Although Mr. Alexander was unfamiliar with any local Palm Bay zoning or permitting provision which would allow "site clearing" prior to excavation/construction, and although Mr. Nasrallah considered it "questionable" whether the digging for the pool constituted "construction without a permit," Mr. Nasrallah's assessment that digging the hole and putting the pool in the hole even temporarily was in excess of mere site clearing and was work which clearly began construction is accepted.

    
    

18. Section 103 of the Standard Building Code has been adopted by the City of Palm Bay. It provides as follows:

    
    

    A person, firm or corporation shall not erect, construct, enlarge, alter, repair, move, improve, remove, convert, or demolish any building or structure in the applicable jurisdiction, or cause the same to be done, without first obtaining a building permit for such building or structure from the Building Official.

    
    

19. Respondent was disciplined by the Construction Industry Licensing Board in October, 1984, for violation of Sections 489.129(1)(c), (g), (j); 489.119(2), (3); and 455.227(1)(a) Florida Statutes.

    CONCLUSIONS OF LAW

    
    

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

    
    

21. Section 489.129(1), Florida Statutes, provides that:

    
    

    The Board may revoke, suspend, or deny the issuance or renewal of the certificate or registration of a contractor . . . if the contractor . . . is found guilty of any of the following acts:

    * * *

    1. Willful or deliberate disregard and violation of the applicable building codes or laws of the state or of any municipalities or counties thereof.

       
       

    2. Aiding or abetting any uncertified or unregistered person to evade any provision of this act.

       * * *

       (g) Acting in the capacity of a contractor under any certificate or registration issued hereunder except in the name of the certificateholder or registrant as set forth on the issued certificate of registration, or in accordance as set forth in the application for the certificate or registration, or as later changed as provided in this act.

       * * *

       (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.

       
       

22. Respondent violated Section 489.129(1)(d) Florida Statutes, by willfully disregarding Section 103, Standard Building Code as adopted by the City of Palm Bay, which requires that a permit be issued before construction begins. Despite there being some misunderstanding on Respondent's part as to whether site clearing permitted digging the hole and temporarily placing the prefabricated pool in it, despite Mr. Nasrallah's somewhat equivocal language with regard to expressing his opinion on construction without a permit, and despite Respondent's electing not to proceed further with construction until a permit was obtained, willful disregard may be attributed where a professional, such as Respondent, knew or should have known that digging the hole commenced construction without a permit.

    
    

23. Due to the pulling of the permit in his name and that of Hastings Construction Company, Inc., for which corporation he was the legitimate, registered qualifying agent, Respondent had the duty to oversee the Dominque construction project from the date of the permit. Furthermore, Respondent

    apparently supervised this project from the outset even though construction began before the permit was finally obtained. He was therefore guilty of gross negligence or incompetence in the practice of contracting in violation of Section 489.129(1)(m), by his supervision of the installation of Mr. Dominique's pool.

    
    

24. Respondent authorized Ms. Reinertz to pull a permit under his license, but the evidence does not establish that his written authorization ever included pulling permits for Castles `n' Pools, and the evidence is insufficient to establish that Ms. Reinertz ever applied for a permit in the name of Castles `n' Pools using Respondent's license number or his authorization. Although the first application was not available and, indeed, may never have been put on paper in the first place, the line drawings submitted at the time of the first application attempt support the premise that the original permit application was made by Ms. Reinertz, under Mr. Hastings' authorization, in the name of Hastings Construction Company, Inc., for which corporation Mr. Hastings was, indeed, a registered, licensed qualifier. The record therefore falls short of establishing by clear and convincing evidence that Respondent aided and abetted an uncertified person to evade the provisions of Chapter 489 by authorizing Ms. Reinertz to pull a permit under his license for a Castles `n' Pools, Inc. contract, knowing that Ms. Reinertz was not licensed and that Castles `n' Pools, Inc. was not qualified, in violation of Sections 489.129(e), (m), (j), and

    489.119 Florida Statutes.

    
    

25. Perhaps Respondent could have clarified matters by applying to qualify Castles `n' Pools when he discovered, after the fact, that the contract was on the wrong form, but it is unclear when he made the discovery and it is clear that every act Respondent personally undertook was in the name of Hastings Construction Company, Inc. Accordingly, Petitioner's contention that because the permit issued in the name of Hastings Construction Company, Inc. was pulled under Respondent's authorization and he assumed supervision and responsibility for the Dominque job, he was therefore the qualifying agent for Castles `n' Pools and as a result of failing to register Castles `n' Pools Respondent is in violation of Section 489.129(1)(g), (j), and 489.119, Florida Statutes, (failure to register a business entity for which a licensee has provided the services of a qualifying agent), is rejected.

    
    

26. Section 21E-17.001, Florida Administrative Code, provides in part:

The following guidelines shall be used in disciplinary cases, absent aggravating or mitigating circumstances and subject to the other provisions of this Chapter.

(a) 489.129(1)(g), 489.119: Failure to

qualify a firm, and/or acting under a name not on license. First violation letter of guidance; repeat violation, $250-$750 fine.

(e) 489.129(1)(d): Permit violations. 1. Late permits. First violation, letter of guidance; repeated violation, $500 fine.

(m) 489.129(1)(e): Aiding or abetting evasion of Chapter 489. First violation,

$500 to $1,500 fine repeat violation, $500 to $3,000 fine and one year suspension.

(s) 489.129(1)(m): Gross negligence, incompetence, and/or misconduct, fraud or deceit.

1. Causing no monetary or other harm to licensee's customer, and no physical harm to any person. First violation, $250 to

$750 fine; repeat violation, $1,000 to

$1,500 fine and 3 to 9 month suspension.

21-17.002 of the Florida Administrative Code provides for aggravating and mitigating circumstances which includes:

(e) The number of repetitions of offenses 21E-17.003 Florida Administrative Code, defines repeat violations and provides in part: The penalty given in the above list for repeat violations is intended to apply only to situations where the repeat violation is of a different subsection of Chapter 489 than the first violation. Where, on the other hand, the repeat violation is the very same type of violation as the first violation, the penalty set out above generally be increased over that is otherwise shown for repeat violations in the above list.

Petitioner seeks a $2,500 fine based in part upon a repeat violation of Sections 489.129 (1)(g) and (j) and 489.119 Florida Statutes. Violations of those sections have not been proved herein except to the extent that the violations which have been proved under sub-sections (1)(d) and (m) simultaneously constitute violations of (1)(j). Therefore, the appropriate penalty herein is a letter of guidance and a $750.00 fine.

RECOMMENDATION

Upon the foregoing findings of fact and conclusions of law, it is recommended that the Construction Industry Licensing Board enter a final order finding Respondent guilty of violations of Sections 489.129 (1)(d) and (m) Florida Statutes, issuing a letter of guidance with regard to the permitting violation, fining the Respondent $750.00 for gross negligence or incompetence, and dismissing the remaining two charges.

DONE and RECOMMENDED this 23rd day of November, 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 23rd day of November, 1988.

APPENDIX TO RECOMMENDED ORDER DOAH Case No. 87-5172

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

Petitioner PFOF:

1. Accepted in FOF 1.

2. Accepted in FOF 2.

3. Accepted in FOF 3.

4. Accepted in FOF 5.

5. Accepted in FOF 7.

6. Accepted in FOF 8.

7-8. Accepted and expanded to more accurately reflect the record in FOF 10

9. Accepted in FOF 11.

10-11. Accepted and expanded to more accurately reflect the record in FOF 12.

1. Accepted and expanded to more accurately reflect the record in FOF 13.

2. Accepted in FOF 14.

14-15. Accepted in part and rejected in part in FOF 15-17. The modifications are made to more accurately reflect the record as a whole, the specific expert opinion as given by Messrs. Alexander and Nasrallah (discussed in the Conclusions of Law) and to reflect that some hydrostatic devices were used, some removed, and at least one left in for a period of time.

16. Accepted in FOF 19.

COPIES FURNISHED:

Fred Seely, Executive Director Construction Industry Licensing Board Department of Professional Regulation Post Office Box 2

Jacksonville, Florida 32201

G. W. Harrell, Esquire Department of Professional

Regulation

130 North Monroe Street Tallahassee, Florida 32399-0750

James J. Hastings

205 Third Avenue

Melbourne Beach, Florida 32951

Lawrence A. Gonzalez, Secretary Department of Professional

Regulation

130 North Monroe Street Tallahassee, Florida 32399-0750

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.: 90955

DOAH CASE NO.: 88-0730

JAMES J. HASTINGS,

License Number: CG C009847

Respondent.

/

FINAL ORDER

THIS MATTER came before the Construction Industry Licensing Board pursuant to Section 120.57(1)(b)(9), Florida Statutes, on June 15, 1989, in Sarasota, Florida, 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 Ray Shope. The Respondent appeared pro se at the proceedings.

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 approved and adopted except where they are contrary to the Petitioner's Exceptions to Hearing Officer's Recommended Order which are hereby approved and adopted in toto for those reasons cited in said exceptions and for those other reasons stated on the record at the above referenced hearing which is also approved and adopted and incorporated by reference.

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

   
   

4. The Respondent is guilty of violating Chapter 489.129(1)(d), (g), and (m), Florida Statutes.

WHEREFORE, IT IS HEREBY ORDERED AND ADJUDGED:

Respondent shall pay an administrative fine of seven hundred fifty dollars ($750.00) within thirty (30) days.

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, 1940 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 14th day of July, 1989.

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 United States Mail to

James J. Hasting

205 Third Avenue Melbourne, Florida 32951

and by hand delivery/United States Mail to the Board Clerk, Department of Professional Regulation and its Counsel, Northwood Centre, 1940 North Monroe Street, Tallahassee, Florida 32399-0792, on or before 5:00 p.m., this 20th day of July, 1989.

F I L E D

Department of Professional Regulation Florida Construction Industry Licensing Board

Board Clerk

Clerk Date July 20, 1989

Docket for Case No: 88-000730

Orders for Case No: 88-000730