STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

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

)

Petitioner, )

)

vs. ) CASE NO. 89-1171

)

GERALD BARTLETT, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, James E. Bradwell, held a public hearing in this case on May 10, 1989, in Tampa, Florida.

APPEARANCES

For Petitioner: Elizabeth R. Alsobrook, Esquire

Department of Professional Regulation 1940 North Monroe Street, Suite 60

Tallahassee, Florida 32399-0792

For Respondent: Christy L. Hessler, Esquire

7522 North Fortieth Street Tampa, Florida 33604

STATEMENT OF THE ISSUES

Whether or not Respondent aided an unlicensed contractor to undertake a contracting job by obtaining or authorizing the obtaining of a permit using Respondent's licensure; and conducted business under a name not on his license and which he did not qualify, to wit: Quality Home Construction, in violations of Sections 489.129(1)(e), (g), (j) and (m) and 489.105(4) and 489.119, Florida Statutes. If these violations occurred, what administrative penalty should be imposed.

PRELIMINARY STATEMENT

On January 11, 1989, the Department of Professional Regulation filed an Administrative Complaint alleging that Respondent unlawfully obtained certain building permits, aided an unlicensed contractor and conducted contracting business under a business name not on his license and which he did not qualify. Respondent disputed the factual allegations of the complaint and requested a formal hearing pursuant to Section 120.57(1), Florida Statutes. The matter was thereafter referred to the Division of Administrative Hearings for a formal hearing. On March 21, 1989, a notice of hearing was filed scheduling this matter for hearing on May 10, 1989 and the hearing was held as scheduled.

Following the hearing, the parties were allowed leave through June 15, 1989 to submit proposed recommended orders. Proposed recommended orders were filed and considered by the undersigned in preparation of this Recommended Order.

Proposed findings which are not incorporated herein are the subject of specific rulings in an Appendix.

At the hearing, Petitioner presented the testimony of Manual Rua, John M. Aviles, Suzanne Stokoe-Yanez, Joe Dolcimascolo, Gary Bonar, Richard Willers and Thomas Hebert. Petitioner's Exhibits 1, 2, 3, 4, 6 and 7 were offered and received into evidence, and Respondent's Exhibit 1 was offered and received.

Respondent testified on his own behalf.

FINDINGS OF FACT

1. The Department of Professional Regulation, Construction Industry Licensing Board (Petitioner), is the state agency charged with the regulation of contractors in Florida.

   
   

2. Gerald Bartlett, Respondent herein, is a registered general contractor, having been issued license number RG 0012112. Respondent's license was first issued in July 1973 qualifying, G.S. Bartlett, Inc., and said license was renewed and active during times material herein. Respondent is also an employee of Energy, Engineering and Research Corporation (EER), acting as superintendent and/or construction manager of various jobs.

   
   

3. On or about July 8, 1987, Manual Rua and John Aviles entered into a contract whereby Rua agreed to provide certain remodeling services to Aviles for a total sum of $9,926.50, at a home which Aviles was in the process of purchasing at 3608 Gardenia Drive in Tampa. Pursuant to that contract, Rua acted as an agent for Aviles and Rua specifically disclosed his status as an individual without a contractor's license and therefore without the ability to pull building permits. (Petitioner's Exhibit 4).

   
   

4. The contractual relationship between Rua and Aviles was consummated by them without Respondent's knowledge or participation.

   
   

5. After Rua undertook the remodeling of Aviles' home, the City of Tampa Building Department issued a stop-work order on July 20, 1987 for lack of permits for the construction work Rua was performing on the Aviles home. Thereafter, Rua contacted Respondent to inquire whether Respondent would act as a consultant to Aviles on a remodeling job and assist in pulling a permit for the drywall, paint, door and window work, and to generally oversee the construction phase of the project. Respondent contacted his employer, EER, and EER, through its vice-president, Thomas Hebert, agreed to act as consultant for Aviles and instructed Respondent in the manner of obtaining the permits through EER.

   
   

6. EER was not responsible for any electrical or plumbing work or for obtaining the permits for such work.

   
   

7. EER, through its agent, Advance Construction Technical Services, Inc., pulled the permit for the drywall, paint, door and window work for the Aviles job. Respondent acted as construction manager for that phase of the project and as part of his employment responsibilities to EER, visited the work site approximately twice per week, gave instructions to Rua's employees, which instructions were followed including the advice of securing a load bearing wall which Rua and/or his agents had removed. While Respondent was overseeing the

   job as construction manager for EER, Rua asked Respondent to bid on other aspects of the project under his own general contractor's license.

   
   

8. Respondent was awarded the job of repairing and extending a concrete pad, and for such work, Respondent pulled a permit under his qualified name G.S. Bartlett, Inc. That phase of the project was completed as contracted for and was done in a satisfactory manner.

   
   

9. Respondent never obtained or authorized anyone to obtain a permit for anyone except his own qualified company for the separate concrete work.

   
   

10. Respondent never engaged in business under the name of Quality Home Construction in connection with the Aviles remodeling job. In this regard, Respondent has known Manual Rua since their early childhood years. As a result of a long friendship between the two, Respondent and Rua considered embarking upon a business venture and in connection therewith, Rua initiated steps to form a partnership but this never formally came about. They did however, complete one construction project during the early 70's which lasted approximately 45 days, but they both realized that it was not profitable to continue that arrangement and it was disbanded. Respondent has never engaged in business under the name of Quality Home Construction in connection with any construction project.

    
    

    CONCLUSIONS OF LAW

    
    

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

    
    

12. The parties were duly noticed pursuant to the notice provisions of Chapter 120, Florida Statutes.

    
    

13. The authority of the Petitioner is derived from Chapter 489, Florida Statutes.

    
    

14. Insufficient evidence was offered herein to establish that Respondent either aided an unlicensed contractor by obtaining or authorizing the obtaining of a permit using Respondent's licensure, or that Respondent did business under a name not on his license or in which he did not qualify. Here the evidence reveals that Respondent, in his capacity as consultant/supervisor for Energy, Engineering and Research Corporation, performed such work as agreed. As supervisor for the specified phase of the Aviles project, Respondent obtained the permit through that entity which was done in a lawful manner and was not used by an uncertified person to evade the provisions of Chapter 489, Florida Statutes. See Blume v. Department of Professional Regulation, 489 So.2d 880 (Fla. 2d DCA 1986). In acting as a supervisor for Energy, Engineering and Research Corporation, Respondent was not obliged to qualify that business organization within the purview of Sections 489.119 and 489.105(4), Florida Statutes (1987). There was no evidence indicating that Respondent engaged in the business utilizing the entity "Quality Home Construction" as alleged. Finally, insufficient evidence was offered herein to show that Respondent engaged in any material non-compliance of Chapter 489 within the purview of Sections 489.129(1)(j) and (m), Florida Statutes (1987) as alleged.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED:

That the Petitioner enter a Final Order dismissing the Administrative Complaint in its entirety.

DONE and ENTERED this 28th day of July, 1989, in Tallahassee, Leon County, Florida.

JAMES E. BRADWELL

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 28th day of July, 1989.

APPENDIX TO RECOMMENDED ORDER CASE NO. 89-1171

Rulings on Petitioner's Proposed Findings of Fact

Paragraph 2 - Rejected as irrelevant to the issues posed in the Administrative Complaint, which alleges violation on Respondent's registered general contractor's license RG-0012112.

Paragraph 5 - Rejected based on the determination in paragraph 3 wherein it was specifically determined that Respondent disclosed his status as an individual without any corporate affiliation. (Paragraph 3, Recommended Order.)

Paragraph 8 - Rejected based on the determination that Aviles was in the process of purchasing the subject property. (Paragraph 3, Recommended Order.)

Paragraph 9 - Rejected as irrelevant based on the determination in paragraph 4, Recommended Order, to the effect that the contractual relationship between Rua and Aviles was consummated without Respondent's knowledge or participation.

Paragraph 11, last sentence, - Rejected as irrelevant for the reasons stated in paragraph 4, Recommended Order.

Paragraph 12 - Rejected, irrelevant. (See paragraph 4, Recommended Order.) Paragraph 13 - Rejected, irrelevant.

Paragraph 14 - Rejected, irrelevant.

Paragraph 15 - Adopted as modified. (Paragraphs 1, 6 and 7, Recommended Order.)

Paragraph 16 - Rejected, irrelevant.

Paragraph 17 - Adopted as modified. (Paragraphs 5 and 6, Recommended Order.) Remainder rejected as irrelevant.

Paragraph 20 - Adopted as modified. (Paragraph 5, first sentence, Recommended Order.)

Paragraph 21 - Adopted as modified. (Paragraph 3, second sentence, Recommended Order.)

Paragraph 22 - Adopted as modified. (Paragraphs 7 and 8, Recommended Order.)

Paragraph 23 - Rejected as contrary to other findings. (Paragraph 4, Recommended Order.)

Paragraph 24 - Adopted as modified. (Paragraphs 5 and 8, Recommended Order.) Rulings on Respondent's Proposed Findings of Fact

Paragraph 9 - Adopted as modified. (Paragraph 9, Recommended Order.)

COPIES FURNISHED:

Elizabeth R. Alsobrook, Esquire Department of Professional Regulation 1940 North Monroe, Suite 60

Tallahassee, Florida 32399-0729

Christy L. Hessler, Esquire 7522 North Fortieth Street Tampa, Florida 33604

Kenneth E. Easley, Esquire General Counsel

Department of Professional Regulation 1940 North Monroe, Suite 60

Tallahassee, Florida 32399-0729

Fred Seely, Executive Director

Florida Construction Industry Licensing Board Post Office Box 2

Jacksonville, Florida 32202

Docket for Case No: 89-001171

Orders for Case No: 89-001171