STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF PROFESSIONAL )

REGULATION, CONSTRUCTION )

INDUSTRY LICENSING BOARD, )

)

Petitioner, )

)

vs. ) CASE NO. 89-0752

) 90-1638

FRED S. PETERSEN, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, K. N. Ayers, held a public hearing in the above- styled cases on May 11, 1990, at Tampa, Florida.

APPEARANCES

For Petitioner: Robert B. Jurand, Esquire

G. W. Harrell, Esquire Department of Professional

Regulation

1940 North Monroe Street Tallahassee, Florida 32399-0792

For Respondent: Brian A. Burden, Esquire

Post Office Box 2893 Tampa, Florida 33601

STATEMENT OF THE ISSUES

Whether Respondent aided and abetted an unlicensed contractor to engage in contracting by pulling permits for the unlicensed contractor; whether Respondent failed to qualify a firm for whom he was acting as licensed contractor; whether Respondent acted in the capacity of a contractor other than in his own name; and, whether Respondent violated local building codes as alleged in Second Amended Administrative Complaint filed 6-30-89, and Administrative Complaint filed 7-26-89.

PRELIMINARY STATEMENT

By Second Amended Administrative Complaint filed 6-30-89 (Case 89-0752) and Administrative Complaint filed 7-26-89 (Case No. 90-1638), the Department of Professional Regulation (DPR), Petitioner, seeks to revoke, suspend or otherwise discipline the license of Fred S. Petersen, Respondent, as a general contractor. As grounds therefor, it is alleged that on multiple occasions Respondent aided an unlicensed contractor to engage in contracting by obtaining permits on Respondent's license for the unlicensed contractor; that, through his failure to

supervise, Respondent did business under a name not on his license; that Respondent failed to qualify a business for whom he pulled permits; and that he acted in the capacity of a contractor other than in his own name.

At the hearing, Petitioner called seven witnesses, Respondent testified in his own behalf and 27 exhibits were admitted into evidence.

Proposed findings were submitted by the parties. Treatment accorded those proposed findings not accepted or included herein are contained in the Appendix attached hereto and made a part hereof.

FINDINGS OF FACT

1. At all times relevant hereto, Fred S. Petersen was licensed as a general contractor by the Florida Construction Industry Licensing Board (FCILB) and issued License Nos. CG C023928 and CB CA23929 (Exhibit 1).

   
   

2. Neither American Weatherall Industries Inc. (AWI), Mel C. Wyatt, nor Steven C. Wyatt were licensed as contractors by the FCILB (Exhibit 2).

   
   

3. Prior to mid-August 1987, Kirk Evenstad was the qualifying general contractor for AWI. By letter dated August 20, 1987, AWI proclaimed Kirk Evenstad to be no longer working for AWI because of mismanagement (Exhibit 3). Mel Wyatt, President of AWI, testified that Everstad had stolen between $30,000 and $50,000 of materials from AWI, leaving AWI in a precarious financial situation.

   
   

4. In order to continue in business to work out of the financial hole created by Everstad, AWI, through one of its employees, Danny O'Brien, introduced Mel Wyatt to Respondent.

   
   

5. Respondent had known O'Brien for some 20 years and, for the proposed reason of helping O'Brien, Respondent agreed to act as qualifying contractor for AWI. To carry out this project, Respondent entered into a contract (Exhibit 4) or Employment Agreement dated July 31, 1987, in which Respondent agreed to supervise construction of projects contracted for by AWI, but the latter was to provide all material and handle all financial aspects of the contracts. Respondent received $1000 for signing this agreement and was to receive a percentage of the gross proceeds of future contracts entered into by AWI.

   
   

6. Respondent authorized O'Brien to pull permits for AWI pursuant to Respondent's contractor's license. Although Respondent testified he gave O'Brien authorization for each specific permit pulled and did not believe he signed Exhibit 11, dated August 11, 1987, a copy of General Authorization for O'Brien to pull permits for AWI under Respondent's license, it is found as a fact that Respondent signed the original of Exhibit 11 which is a copy.

   
   

7. Within a short period of time after executing Exhibit 4, Respondent became aware of the financial difficulties facing AWI and ceased his efforts to qualify AWI.

   
   

8. In the latter part of 1987 (believed to be November-December), AWI reached the point that it could no longer remain solvent and filed for bankruptcy leaving several contracts unfinished for which AWI had received partial payment.

9. Of the four contracts entered into between AWI and homeowners for additions to their houses (Exhibits 7-9 and 14), all were entered into under a printed document showing Everstad's license number; however, the building permits for Exhibits 7-9 were pulled under Respondent's license.

   
   

10. By agreement dated August 10, 1987 (Exhibit 7), Alfred and Marjory Hauk contracted with AWI to convert a garage at their home into an office. Hauk made payments of $1000 and $2300 to AWI, the permit for the work was pulled by O'Brien under Respondent's license, but no work was ever done under this contract. AMI subsequently went out of business, and Hauk received no refund of the monies he had paid to AMI. Hauk never met Respondent.

    
    

11. On June 12, 1987, John Davis contracted with AWI to convert an existing garage to bedroom and bath and add a garage to his home. The initial permit for this work was pulled by Kenn Covicc as contractor on June 21, 1987, and a subsequent permit was pulled by O'Brien using Respondent's license. Although Davis paid over $6000 to AWI for this work, the work stopped after the footing for the garage addition was poured.

    
    

12. On June 2, 1987, Albert Charette entered into a contract with AWI to add a room to his house. Charette paid some $9300 of the $34,400 contract amount during the progress of the work. Differences arose between Charette and AWI involving whether the construction was being done in accordance with the plans and specifications. In September, 1987, Respondent met with Charette and submitted a proposal (Exhibit 15) to Charette to complete the project in accordance with the plans and specifications. About one week after Exhibit 15 was signed, all work stopped on the project, and Respondent never received compensation or commenced work on this contract, which he had entered into in his own name and not as a representative of AWI.

    
    

    CONCLUSIONS OF LAW

    
    

13. The Division of Administrative Hearings has jurisdiction over the parties to, and the subject matter of, these proceedings.

    
    

14. Section 489.129(1), Florida Statutes, provides in pertinent part the Board may discipline the license of a licensee found guilty of:

    
    

    1. Willful or deliberately disregarding and violating the applicable building codes or laws of the state or of any municipality or counties therein.

    2. Performing any act which assists a person or entity in engaging in the prohibited uncertified and unregistered practice of contracting, if the cer- tificate holder or registrant knows or has reasonable grounds to know that the person or entity was uncertified or unregistered.

    3. Knowingly combining or conspiring with an uncertified or unregistered person by allowing his certificate or regis- tration to be used by the uncertified or unregistered person within intent to

       evade the provisions of this part. When the certificate holder or registrant

       allows his certificate or registration

       to be used by one or more business organi- zations without having any active parti- cipation in the operations, management,

       or control of such business organizations, such act constitutes prima facie evidence of an intent to evade the provisions of this part.

    4. Acting in the capacity of a contractor under any certificate or registration issued hereunder, except in the name of the certificate holder or registrant as set forth on the issued certificate of registration . .

       
       

15. In license disciplinary proceedings, the agency has the burden to prove the allegations by clear and convincing evidence. Ferris v. Turlington, 510 So.2d 292 (Fla. 1987).

    
    

16. With respect to the alleged violation of Section 489.129(1)(d), the only evidence to support this charge was the evidence submitted by Mr. Charette respecting the agreement reached between Charette and Respondent to complete the renovation of his house. Work on this contract was never commenced by Respondent. Accordingly, he did not violate local building codes by failing to obtain a permit for work he never commenced.

    
    

17. With respect to the alleged violations of Section 489.29(1)(e), by authorizing O'Brien to pull permits under Respondent's license for work to be done by AWI, Respondent violated this provision. Respondent had known O'Brien for some 20 years and was certainly aware that O'Brien was not a certified general contractor, otherwise O'Brien would have had no need for Respondent's certificate number.

    
    

18. By allowing his certificate to be used by AWI without acting as qualifying agent for AWI, Respondent violated Section 489.129(1)(f). Pursuant to the Agreement entered into between Respondent and AWI, Respondent removed himself from active participation in the operations, management and control of AWI. Accordingly, even had Respondent registered as a qualified contractor for AWI, he likely would have been in violation of this provision by reason of his lack of control over the activities of AWI as established in the Agreement.

    
    

19. By authorizing the pulling of permits by AWI under the authority of his certificate, Respondent was acting in the capacity of a contractor in the name of AWI and not under his own name.

    
    

20. From the foregoing, it is concluded that Petitioner has proven by clear and convincing evidence that Respondent violated Section 489.129(1)(e),

    (f) and (g); and has failed to prove that Respondent violated Section 489.129(1)(d), Florida Statutes.

    
    

21. Rule 21E-17.001, Florida Administrative Code, establishes punishment guidelines for registrants found guilty of violations of Chapter 479, Florida Statutes: For violation of Section 489.129(1)(e), first violation, a monetary fine of $500 to $1500; for violation of Section 479.129(1)(f), first offense,

    $1000 to $3000; and, for violation of subsection (g), first violation, a letter of guidance.

22. Rule 21E-17.003, Florida Administrative Code, defines a repeat violation as any violation on which disciplinary action is being taken where the same licensee had previously had disciplinary action taken against him or received a letter of guidance in a previous case. No evidence was submitted that Respondent had previously been disciplined for violations of Chapter 489.

RECOMMENDATION

It is recommended that Fred S. Petersen be found guilty of violating Sections 489.129(1)(e), (f) and (g), Florida Statutes, and assessed a monetary fine of $3000.

ENTERED this 11th day of June, 1990, in Tallahassee, Florida.

K. N. AYERS Hearing Officer

Division of Administrative Hearings The Desoto Building

1230 Apalachee Parkway

Tallahassee, FL 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 11th day of June, 1990.

APPENDIX

Proposed findings submitted by Petitioner are accepted, except:

Finding #7, penultimate sentence which is rejected as uncorroborated hearsay.

Finding #11, that portion stating the purpose of Petersen's visit to Charette was to change the licensure on the permit to Petersen is rejected. See HO #13.

Proposed findings submitted by Respondent are accepted, except:

Finding #4, Accepted, except with regard to Respondent's notification of termination of his association with AWI. No documentation of this act was submitted and, even though Respondent may have ultimately revoked O'Brien's authority to pull permits, this was done well after the permits were pulled.

COPIES FURNISHED:

Robert B. Jurand, Esquire

G. W. Harrell, Esquire Department of Professional Regulation

Northwood Centre

1940 North Monroe Street Suite 60

Tallahassee, FL 32399-0792

Brian A. Burden, Esquire Post Office Box 2893 Tampa, FL 33601

Fred Seely Executive Director

Construction Industry Licensing Board Post Office Box 2

Jacksonville, FL 32202

Kenneth E. Easley General Counsel

Department of Professional Regulation

Northwood Centre

1940 North Monroe Street Suite 60

Tallahassee, FL 32399-0792

Docket for Case No: 89-000752

Orders for Case No: 89-000752