STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

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

)

Petitioner, )

)

vs. ) CASE NO. 88-3306

)

PEDRO P. LANDERA, )

)

Respondent, )

)

RECOMMENDED ORDER

Pursuant to notice, the above matter was heard before the Division of Administrative Hearings by its duly designated Hearing Officer, Donald R. Alexander, on December 6, 1988, in Miami, Florida.

APPEARANCES

For Petitioner: George W. Harrell, Esquire

130 North Monroe Street Tallahassee, Florida 32399-0750

For Respondent: Luis F. DeLaCruz, Jr., Esquire

300 Sevilla Avenue Suite 313

Coral Gables, Florida 33134 BACKGROUND

This matter arose when petitioner, Department of Professional Regulation, Construction Industry Licensing Board, issued an administrative complaint on January 21, 1988, charging that respondent, Pedro P. Landera, a licensed certified general contractor, had, in conjunction with a project undertaken in August 1986, violated various provisions within Chapter 489, Florida Statutes (1985). Thereafter, respondent requested a formal hearing under Subsection 120.57(1), Florida Statutes (1987) to contest the agency's action. The matter was referred by petitioner to the Division of Administrative Hearings on July 5, 1988, with a request that a hearing officer be assigned to conduct a hearing

By notice of hearing dated July 29, 1988, a final hearing was scheduled on September 13, 1988, in Miami, Florida. At respondent's request, the matter was rescheduled to December 6, 1988, at the same location.

At final hearing, petitioner presented the testimony of Charlie E. Mincey, the complaining consumer, Jodi Raft, a DPR investigator, Brenda Moyer, a permit clerk in the Metropolitan Dade building and zoning department, and Frank H. Norwitch, a Metropolitan Dade Police Department questioned document examiner and accepted as an expert in that field. It also offered petitioner's exhibits 1-

1. All exhibits were received in evidence. Respondent testified on his own behalf and presented the testimony of Gilbert Castillo, his former business partner.

   
   

   The transcript of hearing was filed on December 27, 1988. Proposed findings of fact and conclusions of law were originally due on January 11, 1989. By request of the parties, this time was extended to January 25, 1989, and the same were filed by petitioner and respondent on January 25 and 30, 1989, respectively. A ruling on each proposed finding is made in the Appendix attached to this Recommended Order.

   
   

   The issue is whether respondent's license should be disciplined for the reasons alleged in the administrative complaint.

   
   

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

   
   

   FINDINGS OF FACT

   
   

   1. At all times relevant hereto, respondent, Pedro P. Landera, was a certified general contractor having been issued license number CG C005371 by petitioner, Department of Professional Regulation, Construction Industry Licensing Board (Board), in March 1973. In January 1986 the license was suspended by the Board for three years and, except for the charges pending in this proceeding, Landera would be eligible to have it reactivated in early 1989. Thus, Landera has been without authority to use his license for the last three years. Landera did not contest the Board's suspension action and, in a settlement stipulation, admitted he violated Subsections 489.129(1)(c), (d), (e), (f) and (m), Florida Statutes (1981), by certain conduct taken in December 1983.

      
      

   2. On August 11, 1986, an individual using the name of James Burke entered into a construction contract with Charlie E. Mincey, the owner of Charlie Tires Service, 1700 N. W. 79th Street, Miami, Florida. The contract, which has been received in evidence as petitioner's exhibit 4, called for Burke, "in a timely manner," to make the following additions to Mincey's tire shop: construct a 34' X 40' room onto the existing building, erect an aluminum shed across the front of the building, including a four foot concrete slab floor, and add a five foot wall across the back side of the building. Burke represented on the contract that he held license number 254514-4. However, a search of the Board's records revealed Burke held no state license. The total price for the work was $15,650. On August 13, Mincey paid Burke $3,000 as a down payment on the job.

      
      

   3. According to Mincey, Burke began work on the additions several weeks after the contract was executed and continued to do so on and off for a few months. Eventually, a concrete block wall for the 34' x 40' room was built, but it had no roof, windows, doors, electric wiring, plumbing or paint. The aluminum shed was never built nor did Burke construct a five foot wall at the rear of the building as required by the contract.

      
      

   4. During October and early November 1986 Mincey made additional payments to Burke in the amount of $3,175, 1,000, $500, $400, $300, $300, and $40. This made a total of $8,715 paid by Mincey to Burke. Despite these payments, several subcontractors came to the job site during the same time period to unload materials but requested payment from Mincey before they would release them. Mincey paid the subcontractors $2,593.64, as evidenced by receipts received in evidence as petitioner's exhibit 7.

   5. When Burke did not return to the job site, and the project was still far from completed, Mincey attempted to contact Burke but could not find him. When he left the job site for the final time, Burke gave Mincey no notice of his intention to leave the job unfinished or any reason for doing so. Burke's whereabouts are still unknown, and there is now pending an outstanding warrant for his arrest.

      
      

   6. On September 30, 1986, a building permit application was filed with the Metropolitan Dade County building and zoning department seeking a permit for work to be done on Mincey's business. The application was filled out with three different colors of ink and in more than one person's handwriting. A carbon copy of the application has been received in evidence as petitioner's exhibit 9. The document was authenticated by a permit clerk of the Metropolitan Dade building and zoning department who identified the cashier's validation stamp, issuance date and permit number affixed to the document, all being indicia that the application was received and processed by that department. Further, the clerk attested to the fact that the carbon copy was a document normally kept in the regular course of business by her department. The application carries the signature, license number and social security number of respondent. The authenticity of respondent's signature was confirmed by a questioned document examiner whose testimony has been accepted as being credible and persuasive and was corroborated by respondent's own admission that the signature was his own. The author of the remaining writings on the document is unknown.

      
      

   7. Pursuant to the above application, a building permit was issued on October 1, 1986, for the work performed by Burke. The inspection record, which has been received as petitioner's exhibit 8, reflected that the job site was inspected by a Dade County inspector on October 1 and November 12, 1986. Also, the inspection record reflected that Gila Construction Company (GCC) was the contractor on the job. GCC is a Miami firm that Landera qualified in March 1984. Its owner is Gilbert Castillo.

      
      

   8. Mincey's building remains unfinished as of this date, and he contends the value of the work is less than the $11,308 that he paid to Burke and the subcontractors. In attempting to resolve the matter, Mincey learned that Landera's license number was on the permit application, and a complaint was eventually filed with the Board. However, prior to hearing, Mincey had never seen or talked to Landera, knew nothing of GCC, and considered the business transaction to be between he and Burke.

      
      

   9. Landera denied knowing Burke or authorizing him to use his license. Also, he maintained that he has not used his suspended license since the Board's action in early 1986. He denied signing the application in question and had no explanation as to how his signature got on the application except to suggest that someone may have obtained one with his signature and then fraudulently used the same to obtain a permit. Even so, there was no reason for Landera to sign an application during this period of time since his license was under suspension.

      
      

   10. Castillo, who owns GCC, denied knowing Burke or Mincey or having any knowledge of or participation in the Mincey job.

       CONCLUSIONS OF LAW

       
       

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

       
       

   12. Because this proceeding may result in the revocation of Landera's professional license, the Board is obligated to prove the allegations in the administrative complaint by clear and convincing evidence. Ferris v. Turlington, 510 So.2d 292 (Fla. 1987). This standard of proof will be used in determining the legitimacy of the charges.

       
       

   13. In an inartfully drawn complaint, Landera is charged with a multitude of violations under chapter 489. These include (a) aiding or authorizing an unlicensed contractor (Burke) in obtaining a permit for a job in violation of sections 489.105(4), 489.119 and 489.129(1)(e), (g), (j), and (m); (b) exhibiting financial mismanagement, misconduct or diversion of funds in violation of subsections 489.129(1)(h) and (m); (c) failing to perform in a reasonably timely manner and abandoning a job in violation of subsections 489.12(1)(k) and (m); and (d) using a suspended license in violation of subsection 489.127(1)(e). These charges will be examined separately below.

       
       

   14. Preliminarily, a brief discussion is required concerning the admissibility of petitioner's exhibit 9, which is a carbon copy of the permit application. This is because respondent has vigorously opposed its admission since the document provides the only direct link between respondent and the job in question. At hearing the undersigned overruled respondent's objection and received into evidence a carbon copy of the building application under the authority of Subsection 90.803(6), Florida Statutes (1987). That subsection provides an exception to the hearsay rule for so-called business records that meet the requirements of the statute. In this case, the record was authenticated by a Metropolitan Dade building and zoning department permit clerk through her recognition of stamps and other markings normally made on such documents by department personnel. Further, it was established that it was a regular practice of that department to maintain such records during the course of conducting building and zoning activities for the county. Although she was admittedly not the custodian of the records, the clerk was a "qualified witness" within the meaning of the law. There were no other circumstances shown or indicia presented to establish that the document was untrustworthy or unreliable. In view of this, the document was properly admitted.

       
       

   15. Taking the charges in the order presented in the complaint, the Board contends first that "(s)aid job was undertaken by a contractor who was not properly licensed under state licensing laws (and) respondent aided on said job by obtaining or authorizing the obtaining of a permit for said job, using respondent's licensure, violating 489.129(1)(e), (m), (g), (j); 489.119 and 489.105(4)." (Administrative complaint, par. 4) The cited paragraphs in subsection 489.129(1) make it unlawful for a licensee to (a) aid or abet any uncertified or unregistered person to evade any provision of the act, (b) commit fraud, deceit or gross negligence, incompetency or misconduct in the practice of contracting, (c) act in the capacity of a contractor except in the name of the certificate holder, and (d) fail to comply with chapter 489 in a material respect. Section 489.119 contains seven subsections dealing with business organizations and qualifying agents, while subsection 489.105(4) is a statutory definition of a "qualifying agent." The complaint does not explain the nexus of the last two statutes to this matter or recite the specific conduct which underlies the allegation that the two statutes were violated.

   16. The validity of the charges, or most of them, turns on the threshold question of whether Landera authorized Burke to use his license number to pull a permit. The evidence shows that Landera's signature on the permit application was authentic, and that the license and social security numbers reflected thereon, although not in Landera's handwriting, were his own. In the absence of any reasonable or credible explanation as to how Burke obtained a signed application, it must be inferred that Landera signed the application with the intent of allowing Burke to use it to pull a permit. This being so, it is concluded that Landera aided and abetted an unlicensed person (Burke) to evade a provision of chapter 489, committed "misconduct in the practice of contracting" by engaging in the activity with a suspended license, and failed to comply in a material respect with a provision of chapter 489, to wit, using a license while it was suspended. In so ruling, it is noted that the case of Blume v. Department of Professional Regulation, Construction Industry Licensing Board,

       489 So.2d 880 (Fla. 2nd DCA 1986), which might otherwise assist Landera on the aiding and abetting charge, is distinguishable. In Blume, charges that a contractor aided and abetted an unlicensed individual to perform work were dismissed since it was not proven that Blume intended that such unlicensed work be performed. In the case at bar, Landera's license was suspended at the time the transaction occurred. Thus, any activity in the profession would be illegal, irrespective of whether Landera had knowledge of Burke's licensing status. The next charge is that Landera acted in the capacity of a contractor except in the name of the certificate holder in violation of subsection 489.129(1)(g). In plainer terms, this means that Landera allegedly operated under a name not appearing on his license. The evidence reflects that Landera, by allowing Burke to use his license number, operated under the name of Burke and thereby violated the cited statute. Finally, it is alleged that Landera violated sections 489.105(4) and 489.119. As partially clarified by the agency's proposed order submitted after hearing, the Board contends that Landera "obtained the permit and was responsible as the qualifying agent for the Mincey job pursuant to section 489.105(4)" and therefore violated subsections 489.129(1)(g) and (g). Also, the Board explains that Landera violated subsection 489.119 by failing to register a business entity for which he provided the services of a qualifying agent. From this explanation, the undersigned assumes the Board is contending that, by failing to register Burke as required by subsection 489.119(2), Landera violated chapter 489 in a material respect. Since the evidence sustains this charge, it is concluded that a second violation of subsection 489.129(1)(j) has occurred. The remaining allegation concerning subsection 489.129(1)(g) has been disposed of above and need not be repeated.

       
       

   17. The Board alleges next that "Respondent exhibited financial mismanagement, misconduct, or diversion, in violation of 489.129(1)(h), (m)." (Administrative complaint, par. 5) As to the charge that subsection 489.129(1)(h)2. was violated, there is a lack of clear and convincing evidence to establish that when Burke left the job, the percentage of completion was less than the percentage of the total contract price paid by Mincey to Burke at the time of abandonment. Therefore, this charge must fail. The charge that respondent violated subsection 489.129(1)(m) by being guilty of "misconduct in the practice of contracting" is duplicative of the charge in paragraph 4 of the complaint and has already been addressed above.

       
       

   18. Next, the Board contends that "Respondent failed to perform in a reasonably timely manner, and/or abandoned said job(s) in violation of 489.129(1)(m), (k)." (Administrative complaint, par. 6) The evidence shows clearly and convincingly that Burke abandoned the Mincey job. Presumably, the

       Board seeks to impute this charge to Landera who lent his signature and license number for the job. While not cited by the Board, the case of Hunt v.

       Construction Industry Licensing Board, 444 So.2d 997 (Fla. 1st DCA 1983) lends support to this effort. Thus, a qualified contractor who procures a building permit "may not avoid responsibility by saying he had nothing to do with the project." Id. at 999. Therefore, it is concluded respondent violated subsection 489.129(1)(k) by abandoning the job. Also, the evidence shows the job was not completed in a reasonably timely manner as called for by the contract. Under the rationale expressed in Hunt, Burke's conduct may likewise be imputed to Landera and it is concluded that Landera is guilty of "misconduct in the practice of contracting" within the meaning of subsection 489.129(1)(m)

       
       

   19. Finally, the Board has charged that Landera "violated Section 489.127(1)(e) by using a suspended license, in that Respondent's state licensure was suspended." (Administrative complaint, par. 7). The cited statute is enforced by the state attorney, and not the Board, since it makes certain acts, including the one in the complaint, first degree misdemeanors. Accordingly, it is assumed the Board intended to charge Landera with violating subsection 489.129(1)(j) which make it unlawful for a licensee to violate chapter 489 in a material respect. Since the charge has already been included in paragraph 4 of the complaint, it is duplicative in nature and has been disregarded here.

       
       

   20. To summarize, the evidence shows clearly and convincingly that Landera is guilty of violating subsections 489.129(1)(e), (g) and (k) in one respect, violating subsection 489.129(1)(m) in two respects, and violating subsection 489.129(1)(j) in three respects. All such violations stem from the Mincey transaction.

       
       

   21. Chapter 21E-17, Florida Administrative Code (1987) provides guidelines to be used for imposing penalties in this type of proceeding. Absent any aggravating or mitigating factors, rule 21E-17.001 recommends the following range of penalties:

       
       

       1. Misconduct in the practice of contracting causing financial harm to a customer - first violation - ($500 to $1,500 fine) - repeat violation ($1,000 - $5,000 fine and suspension or revocation)

       2. 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)

       3. Abandonment - first violation - ($500 to

$2,000 fine) - repeat violation (revocation) Operating under a name not on the certificate - first violation, letter of guidance; repeat - ($250 to $750 fine)

The remaining violations have no recommended penalty. In addition, rule 21E-

17.003 authorizes a penalty of up to licensure revocation where repeat violations are found. This means that a licensee has been previously disciplined by the Board for the same violations. Since similar violations of chapter 489 were committed by Landera in 1983, a more stringent penalty than set forth in rule 21E-17.001 is permissible. After considering the fact that respondent's license was on suspension when the events herein occurred and that Mincey suffered financial harm, a $3,500 fine is deemed to be appropriate and respondent's license should be suspended for an additional twenty-four months.

RECOMMENDATION

Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that respondent be found guilty as set forth in the conclusions

of law, that he pay a $3,500 fine, and that his license be suspended until January, 1991.

DONE AND ORDERED this 10th day of February, 1989, in Tallahassee, Leon County, Florida.

DONALD R. ALEXANDER

Hearing Officer

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904)488-9675

Filed with the Clerk of the Division of Administrative Hearings this 10th day of February, 1989.

APPENDIX

Petitioner:

1-2. Covered in finding of fact 1. 3-4. Covered in finding of fact 2.

1. Covered in findings of fact 3. and 5.

2. Covered in finding of fact 4.

3. Covered in finding of fact 6.

4. Covered in finding of fact 1.

Respondent:

1. Covered in findings of fact 1 and 2.

2. Covered in findings of fact 3 and 5.

3. Covered in findings of fact 4 and 5. 4-5. Covered in finding of fact 8.

1. Covered in findings of fact 2, 5 and 6.

2. Covered in findings of fact 6 and 9.

3. Covered in finding of fact 6.

9 Covered in findings of fact 9 and 10

COPIES FURNISHED:

George W. Harrell, Esquire Department of Professional

Regulation

130 North Monroe Street Tallahassee, Florida 32399-0750

Luis F. DeLaCruz, Jr., Esquire

300 Sevilla Avenue Suite 313

Coral Gables, Florida 33134

Kenneth E. Easley, Esquire General Counsel

130 North Monroe Street Tallahassee, Florida 32399-0750

Fred Seely Executive Director

Construction Industry Licensing Board Post Office Box 2

Jacksonville, Florida 32201

Docket for Case No: 88-003306

Orders for Case No: 88-003306