STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

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

)

Petitioner, )

)

vs. ) CASE NO. 89-0785

)

THOMAS HEBERT, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was held on May 23, 1989, before the Division of Administrative Hearings and its duly designated Hearing Officer, Daniel M. Kilbride, in Tampa, Florida.

APPEARANCES

For Petitioner: Jack M. Larkin, Esquire

806 Jackson Street

Tampa, Florida 33602

For Respondent: Michael Steinberg, Esquire

601 Twiggs Street, Suite 201

Tampa, Florida 33602 STATEMENT OF THE ISSUES

Whether disciplinary action should be taken against Respondent's general contractor's license number CB-C006542 for allegedly obtaining or for authorizing the obtaining of a building permit for a remodeling job by an unlicensed contractor, using Respondent's license in violation of Sections 489.129(1)(e)(m)(g)(j), 489.119 and 489.105(4), Florida Statutes.

Whether Respondent did business under a name not on his license and which Respondent did not qualify in violation of Sections 489.129(1)(g)(j), 489.119, Florida Statutes. Whether Respondent failed to properly supervise job site activities on a job site for which he pulled the permits in violation of Sections 489.129(1)(m), Florida Statutes.

PRELIMINARY STATEMENT

On or about December 22, 1988, the Petitioner filed an Administrative Complaint against the Respondent in, alleging violations of Sections 489.129(1)(e)(g)(j)(m), 489.119 and 489.105(4), Florida Statutes.

Subsequent to the filing of the Administrative Complaint, the Respondent requested a formal hearing by an executed Election of Rights form. Thereafter, on February 13, 1989, the case was referred to the Division of Administrative Hearings for a Section 120.57(1), Florida Statutes, hearing. This proceeding followed.

At the formal hearing, Petitioner presented five witnesses, and introduced into evidence Exhibits 1 through 5 on its behalf. The Respondent testified on his own behalf, presented Manuel Rua as his witness, and offered no exhibits.

At the formal hearing Petitioner dismissed the portion of the Administrative Complaint which alleged that the Respondent did business under a name not on his license and which Respondent did not qualify. No transcript was provided. Proposed findings of fact submitted by the parties are addressed in the Appendix to this Recommended Order.

FINDINGS OF FACT

Based upon the testimony and documentary evidence presented the following facts are found:

1. At all times material hereto, Respondent, Thomas Hebert, was a licensed contractor in the State of Florida, having been issued license number CG- C006542, by the State of Florida, and was the qualifier of Engineering & Environment Research Corp., (EER).

   
   

2. On or about July 7, 1987, John M. Aviles entered into a contract with Manuel Rua to do a remodeling job on Mr. Aviles' home located at 3608 Gardenia, Tampa, Florida. The total cost of the remodeling under the contract was

   $9,926.50. The contract provided that all permits required would be obtained by Mr. Aviles.

   
   

3. Prior to entering into the contract, Mr. Rua advised Mr. Aviles that if permits were needed, that Mr. Rua was a silent partner in a construction company and could provide any construction permits required.

   
   

4. At all times pertinent hereto Mr. Manuel Rua, was a retired builder, was not licensed in Florida and not employed by EER or Thomas Hebert, individually.

   
   

5. Rua proceeded with the construction pursuant to the contract. However, on or about July 20, 1987, the Tampa Building Department halted the job for lack of a building permit, lack of a plumbing permit and lack of an electrical permit.

   
   

6. Before the job was shut down, Rua and the other workers had done plumbing and electrical work, replaced walls, done framing, glazing and sheetrock work.

7. At all times pertinent hereto Gerald S. Bartlett was a full-time employee of EER, working at another construction project. At all times pertinent hereto, Respondent was the owner of and qualifier of EER.

   
   

8. Shortly after July 20, 1987, Mr. Rua contacted Mr. Bartlett and told Bartlett that the job was red tagged because of no permit. Rua wanted Bartlett to pull the permit to allow the work to continue. At that time, Bartlett could not personally pull the permit because he was registered in Hillsborough County, but not in the City of Tampa.

   
   

9. Bartlett then called the Respondent about the job and described the job to Respondent. Respondent advised Bartlett that EER would help Aviles out by getting the building permit if Bartlett would be responsible for the construction and if Aviles (not EER) paid Bartlett for his time and if Aviles would sign a letter agreeing that EER was responsible only to inspect and consult and further agreeing to hold EER harmless.

   
   

10. Bartlett then arranged for the building permit for the Aviles job which was subsequently applied for and issued to EER on July 24, 1987.

    
    

11. On July 23, 1987, Rua informed Aviles that arrangements had been made for the permitting and that the permitting would cost an additional $344.00. Rua further advised Aviles that in order for the permitting to go through, Aviles would have to give the building contractor a hold harmless agreement.

    
    

12. On July 24, 1987, Aviles paid Rua the sum of $344.00 for the permit, by check. Rua cashed the check and left the cash on the counter at Mr. Aviles' residence which was picked up by Mr. Bartlett. Mr. Bartlett and the Respondent shared that money. The only money paid to Bartlett from anyone (including EER) for the Aviles job came from Aviles on that occasion. Respondent did not receive any additional money from the Aviles' job from anyone.

    
    

13. On July 25, 1987, Mr. Aviles signed the agreement which indicated that EER had been retained as a consultant to permit, advise and inspect the remodeling being done. The agreement is not signed by anyone from EER nor does it contain the Respondent's contractor's license number.

    
    

14. The agreement provides that EER was not financially responsible for any of the work, nor for liability on the job.

    
    

15. Prior to July 25, 1987, Mr. Aviles did not have any other agreement with EER. Until October, 1987, Mr. Aviles had never met or spoken with the Respondent, Mr. Bartlett or any other representative of EER.

    
    

16. At all times pertinent hereto, no one employed by EER worked on the Aviles remodeling job.

    
    

17. Subsequent to the permit being issued, work began again and continued until on or about September 28, 1987. Construction was again halted for lack of electrical and plumbing permits by the City of Tampa.

    
    

18. Between July 25, 1987, and September 28, 1987, Rua and his workers did a substantial amount of work in the house. During this period of time, Mr. Bartlett appeared on the job approximately ten times, but Mr. Rua was in charge. Mr. Bartlett never did any work, but did try to supervise on occasion.

19. The Respondent visited the jobsite approximately two times, stopping by after working hours looking through the windows from the outside and, therefore, did not supervise the jobsite.

    
    

20. Essentially between July 25, 1987, and September 28, 1987, Mr. Rua and his employees continued doing all the work, just as they did before the permit was pulled by EER.

    
    

21. On October 7, 1987, Aviles argued with Rua about the permits and the delay in construction. Rua left the job, removing EER's building permits from the window, along with a concrete permit.

    
    

22. Thereafter, Aviles attempted to contact other contractors to complete the work, but was unable to do so since no one wanted to take a partially finished job which had been red tagged.

    
    

23. On October 16, 1987, Aviles met Respondent and Bartlett (for the first time) at the jobsite and both assured Aviles that whatever assistance was necessary to complete the job would be provided. Neither the Respondent nor Mr. Bartlett offered to complete the job, but furnished Mr. Aviles a list of subcontractors who would supposedly complete the job.

    
    

24. At this point in time, no part of the job had been completed, but most all of the work had been started and was nearly complete.

    
    

25. The Respondent at this time advised Mr. Aviles that he would retrieve the permits so that Aviles could continue the remodeling. The permits were subsequently returned and the Respondent offered to allow Mr. Aviles to continue using the Respondent's permit for construction even though neither Respondent nor any of his employees would be on the jobsite.

    
    

26. Mr. Aviles subsequently determined that the work performed by Mr. Rua was not acceptable, and thereafter, he had most of the work redone using other subcontractors.

    
    

27. The permit applied for by EER indicated it was for non-structural general repairs. The permit issued to EER allowed both structural and non- structural repairs to be done since EER was a general contractor. The work done under the permit issued to EER was both structural and non-structural.

    
    

28. Inspections were required and on this job, the general contractor, EER, was required to notify the City when inspections were required. No inspections were ever called for by EER because both Respondent and Bartlett did not think any were required.

    
    

29. Under the permit issued, the general contractor, EER, and the Respondent were required to supervise the work. The work done by Rua and the Latyvs, under EER's permit, was required to have been performed by an employee(s) of EER who was paid by EER which did not occur.

    
    

30. When EER pulled the building permit, it could not limit its role to supervision only. A licensed building contractor can agree to do supervision only, but not when the contractor pulls the building permit.

    
    

31. The Respondent is a very experienced contractor who at all times mentioned herein not only was a certified general contractor, but was a certified roofing contractor, certified mechanical contractor and certified pool

    contractor in the State of Florida. He has also written portions of the general contractor's examination.

    
    

32. The Respondent knew or should have known that there is a difference between a licensed contractor agreeing to supervise a construction job and a licensed contractor pulling the permit for a construction job and then trying to limit his liability to supervision only and not assuming any financial responsibility for the work done.

    
    

    CONCLUSIONS OF LAW

    
    

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

    
    

34. The Construction Industry Licensing Board may revoke, suspend or otherwise discipline the license of a contractor for violation of Section 489.129, Florida Statutes.

    
    

35. The Petitioner is required to show by clear and convincing evidence that the Respondent violated Section 489.129(1)(e)(j) and (m) Florida Statutes, by aiding and abetting an uncertified or unregistered person to evade any provision of this act and by failure to comply with the provisions of this Act. The evidence is clear and convincing that Respondent aided and abetted an unregistered person in evading provisions of this Act, and by failure to comply with the provisions of this Act by obtaining or authorizing the obtaining of building permits on behalf of an unregistered contractor.

    
    

36. The Petitioner is required to show by clear and convincing evidence that the Respondent violated Section 489.129(1)(m) by incompetency or misconduct in the practice of contracting. The evidence is clear and convincing that Respondent demonstrated incompetency or misconduct in the practice of contracting by his failure to obtain proper permits and failure to supervise the jobsite activities on the Aviles job.

    
    

37. The Petitioner demonstrated by clear and convincing evidence that Respondent is the qualifying agent for EER and allowed the building permit to be issued under his license and failed to supervise the contractor's work (Rua) in violation of Sections 489.105(4), 489.119, 489.129(1)(m) and 489.129(2), Florida Statutes.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered:

1. Assessing the Respondent an administrative penalty of $1,000 for aiding and abetting evasion of Chapter 489, Florida Statutes, in accordance with disciplinary guidelines set forth in Section 21E-17.001(13), Florida Administrative Code.

   
   

2. Assessing the Respondent an administrative penalty of $1,500 for misconduct in the practice of contracting by failure to supervise, thereby causing monetary harm to the customer. This is in accordance with disciplinary guidelines set forth in Section 21E-17.001(19)(b), Florida Administrative Code.

DONE AND ENTERED this 19th day of June, 1989, in Tallahassee, Leon County, Florida.

DANIEL M. KILBRIDE

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 19th day of June, 1989.

APPENDIX

The following constitutes my specific rulings, in accordance with section 120.59, Florida Statutes, on findings of fact submitted by the parties.

Petitioner's Proposed Findings 1-10. Accepted

11-12. Rejected as irrelevant. 13-36. Accepted in substance.

Respondent's Proposed Findings 1-3. Accepted

4. Rejected as unsupported by the evidence

5-18. Addressed

1. Rejected as a conclusion of law.

   
   

   Respondent's letter with attachments, dated June 1, 1989 is rejected as improper submission of documentary evidence.

   
   

   COPIES FURNISHED:

   
   

   Jack M. Larkin, Esquire 806 Jackson Street

   Tampa, Florida 33602

   
   

   Michael Steinberg, Esquire 601 Twiggs Street, Suite 201

   Tampa, Florida 33602

   
   

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

   Jacksonville, Florida 32201

   Bruce Lamb, General Counsel Department of Professional Regulation 1940 North Monroe Street, Ste. 60

   Tallahassee, Florida 32399-0760

   
   

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

   AGENCY FINAL ORDER

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

   
   

   STATE OF FLORIDA

   DEPARTMENT OF PROFESSIONAL REGULATION CONSTRUCTION INDUSTRY LICENSING BOARD

   
   

   DEPARTMENT OF PROFESSIONAL REGULATION,

   
   

   Petitioner,

   
   

   vs CASE NO.: 96500

   DOAH CASE NO.: 89-0785

   THOMAS H. HEBERT, LICENSE NO.: CC C009088,

   and CP C008507, CM C008510, CG C006542,

   
   

   Respondent.

   /

   
   

   FINAL ORDER

   
   

   THIS MATTER came before the Construction Industry Licensing Board pursuant to Section 120.57(1)(b)(9), Florida Statutes, on October 12, 1989, in Tampa, Florida, for consideration of the Recommended Order (a copy of which is attached hereto and incorporated herein by reference). The Petitioner was represented by Ray Shope. The Respondent was present and was represented by counsel at the Board meeting.

   
   

   Upon consideration of the hearing officer's Recommended Order, and the arguments of the parties and after a review of the complete record in this matter, and there being no exceptions filed, the Board makes the following:

   
   

   FINDINGS OF FACT

   
   

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

      
      

   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 in toto.

   
   

3. Respondent is guilty of violating Section 489.129(1), (j), (e), and (m), 489.129(2), 489.105(4), and 489.119, Florida Statutes.

   
   

4. The penalty recommended by the Hearing Officer is rejected for those reasons stated on the record at the above referenced Board meeting.

   
   

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

WHEREFORE, IT IS HEREBY ORDERED AND ADJUDGED:

As to license CG C006542, Respondent shall pay an administrative fine in the amount of one thousand two hundred fifty dollars ($1,250.00) to the Construction Industry Licensing Board. Said fine shall be paid within ninety

(90) days.

To assure payment of the fine, it is further ordered that all of Respondent's licensure to practice contracting shall be suspended with the imposition of the suspension being stayed for ninety (90) days. If the ordered fine is paid within that ninety (90) day period, the suspension imposed shall not take effect. Upon payment of the fine after the ninety (90) days, the suspension imposed shall be lifted. If the licensee does not pay the fine, within said period, then immediately upon expiration of the stay, he shall surrender his licensure to the investigator of the Department of professional Regulation or shall mail it to the Board offices.

As to licenses CP C008507, CC C009088, and CM C008510, Respondent Thomas H. Herbert, is hereby REPRIMANDED.

Pursuant to Section 120.59, Florida Statutes, the Parties are hereby notified that they may appeal this Final Order by filing one copy of a Notice of Appeal with the Clerk of the Department of Professional Regulation, Northwood Centre, 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 23rd day of February, 1990.

MIKE BLANKENSHIP, 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 U.S. Mail to

(no addresses given)

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 23rd day of February, 1990.

F I L E D

Department of Professional Regulation Florida Construction Industry Licensing Board

Board Clerk

Clerk Date: February 23, 1990

Docket for Case No: 89-000785

Orders for Case No: 89-000785