STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

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

)

Petitioner, )

)

vs. ) CASE NOS. 89-4835

) 89-4836

RICHARD L. MELVIN, )

)

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 these consolidated cases on November 30, 1989, in Tampa, Florida.

APPEARANCES

For Petitioner: Andrea Bateman, Esquire

Department of Professional Regulation

Northwood Centre, Suite 60 1940 North Monroe Street

Tallahassee, Florida 32399-0792

For Respondent: Richard L. Melvin, pro se

12737 North Florida Avenue Tampa, Florida 33612

STATEMENT OF THE ISSUES

Whether or not Respondent's certified general contractor's license should be disciplined because he aided or abetted an uncertified or unregistered person, knowingly combined or conspired with an uncertified or unregistered person by allowing his certificate or registration to be used by an uncertified or unregistered person with the intent to evade Chapter 489; acted in the capacity of a contractor under an unregistered or uncertified name; engaged in fraud, deceit, or gross negligence, incompetence, or misconduct in the practice of contracting as alleged, in violation of Subsections 489.129(1)(e),(f),(g) and (m), Florida Statutes.

PRELIMINARY STATEMENT

By its Administrative Complaints filed April 17 and June 27, 1989, Petitioner seeks to impose disciplinary action against Respondent, Richard L. Melvin, for alleged misconduct in the practice of contracting. Respondent disputes the complaint allegations and requested a formal hearing.

On September 22, 1989, Petitioner moved to consolidate the subject proceedings, pursuant to Rule 22I-6.011, Florida Administrative Code. Based on the identity of the parties, the undersigned granted Petitioner's motion to consolidate.

At the hearing, Petitioner presented the testimony of Clinton R. Weber, Wilfred Butler, Dennis Force, Lynda Haman, Julian Garcia (tendered and received as an expert in contracting and construction in Florida), Wiley Parks, Jr., Steven L. Pence, David Moon and Lee Metcalf. Respondent called James Jimenez and testified on his behalf. Petitioner introduced 23 exhibits which were received in evidence.

Petitioner filed a proposed recommended order which is substantially incorporated herein. Respondent filed a letter which was considered by the undersigned. Respondent's letter is in the form of legal argument and, as such, is not adopted in the factual findings.

FINDINGS OF FACT

1. Petitioner is the state agency charged with the responsibility to investigate construction activities in Florida and, where indicated, to file Administrative Complaints pursuant to Chapters 489, 455 and 120, Florida Statutes, and other rules and regulations promulgated pursuant thereto.

   
   

2. During times material, Respondent, Richard L. Melvin, was licensed as a general contractor, having been issued license number CG C022926.

   
   

3. During times material, Respondent did not qualify Jeffrey Gaston or Tropical Exteriors & Services, Inc. (TESI), nor did said entity or contractor's name appear on Respondent's license.

   
   

4. During times material, Jeffrey Gaston d/b/a TESI, was never licensed nor qualified to do business as a contractor in Florida.

   
   

5. During times material, Respondent was not a licensed roofing contractor.

   
   

6. On or about March 31, 1987, Jeffrey Gaston contracted with Deborah and Clinton Weber to repair a roof and renovate a bathroom at their residence for the sum of $5,000.00. Respondent's name, license number, address and telephone number was listed on the Gaston/Weber contract.

   
   

7. Jeffrey Gaston d/b/a TESI entered into a contract with Wilfred Butler on January 12, 1987, to replace a back porch at his residence. Respondent's general contractor's license number was listed at the top of the agreement between Gaston-TESI/Butler. Checks drawn by Butler were made payable to Respondent/TESI.

   
   

8. Respondent obtained a permit for Jeffrey Gaston d/b/a TESI for the Butler project. (Petitioner's Exhibit 7.)

   
   

9. Respondent admitted to authorizing Gaston or TESI to use his name and certificate number on contracts. Respondent was aware of approximately 20 contracts and several other permits wherein Gaston/TESI obtained the contracts or permits by using Respondent's name and license number.

10. Respondent admitted receiving approximately $2,000.00 for supervising TESI.

    
    

11. Respondent never disassociated himself from Jeffrey Gaston until May 31, 1987.

    
    

12. Petitioner introduced ten contracts for work in Pinellas County from December 1986 to May 1987, with Respondent's name and state certification number with Jeffrey Gaston d/b/a TESI listed as the contractor. (Petitioner's Exhibit 9.)

    
    

13. Respondent obtained a permit for Jeffrey Gaston d/b/a TESI for the installation of aluminum soffit and fascia on the Stitches' home situated at 111 Aurora Avenue North, Clearwater, Florida. Respondent did not supervise the installation of aluminum soffit and fascia on the Stitch's residence. Respondent, as a general contractor, is responsible for all phases of work for which he contracted for and/or obtained permits.

    
    

14. Respondent was aware that Jeffrey Gaston was not a licensed contractor in Florida.

    
    

15. Jimmy Jimenez has never been a licensed contractor in Florida.

    
    

16. J & J Construction Company was qualified in February 1988, under Respondent's license number, CG C022926. Thereafter, during February 1989, J & J Construction was qualified under Respondent's license number RC 0058448.

    
    

17. Respondent did not attempt to qualify J & J Construction until he was cautioned by Petitioner's investigators Steven Pence and Dennis Force, that his construction activities amounted to "aiding and abetting an unlicensed contractor."

    
    

18. On or about December 11, 1987, Wiley Parks, Jr., entered into a contract with J & J Construction to perform construction work and remodel a home for Parks located at 1722 West Arch Street, Tampa, Florida. In conjunction with that contract, a second contract was submitted by J & J Construction for Mr. Parks, although unbeknownst to him, which utilized Respondent's name and contractor's license number at the top of the agreement.

    
    

19. Wiley Parks spent a great deal of his time observing the construction and remodeling work by J & J.

    
    

20. Respondent was only seen by Wiley Parks when they met at a local bank to cash a check which represented a draw submitted by Respondent for construction work done at the Arch Street construction project.

    
    

21. Respondent obtained a permit for the Parks job on January 6, 1988, which was prior to the time he qualified J & J Construction as the entity through which he would conduct construction business. Respondent, although required to do so, never called for a final inspection on the Parks job. The floor joists at the Parks job were disapproved by the Hillsborough County Building Department and were never repaired by Respondent.

    
    

22. Employees of J & J were observed working at the Parks job site on January 4 and 8, 1988.

23. Respondent was, on two occasions, the subject of prior disciplinary action by Petitioner during 1987. On one occasion, probable cause was found on August 12, 1987 and the case was closed by issuing a letter of guidance to Respondent. On the second occasion, probable cause was found on October 7, 1987. Final action was taken on February 11, 1988, whereby an administrative fine of $1,000.00 was imposed against Respondent or, alternatively, a 30-day suspension of his license. Respondent paid the administrative fine within the allotted time.

    
    

    CONCLUSIONS OF LAW

    
    

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

    
    

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

    
    

26. Respondent, a licensed general contractor, is subject to the disciplinary guidelines of Chapter 489, Florida Statutes.

    
    

27. Section 489.129(1), Florida Statutes, provides in pertinent part 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 the following acts:

    
    

    * * *

    
    

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

    2. Knowingly combining or conspiring with an uncertified or unregistered person by allowing one's certificate or registration to be used by the uncertified or unregistered person with intent to evade the provisions of this act. When a certificate holder or registrant allows his certificate or registration to be used by one or more business organizations without having any active participation in the opera- tions, management, or control of such business organization, such act constitutes prima facie evidence of an intent to evade the provisions of this act.

    3. 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 or registration, or in accordance with the personnel of the certificateholder or registrant 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.

       
       

28. Petitioner demonstrated clear and convincing evidence that Respondent, by allowing his certification number and name to used on contracts with an unlicensed contractor; by pulling permits for an unlicensed contractor in Pinellas County during 1986 and 1987; by failing to qualify said unlicensed contractor; and by failing to fulfill the terms of the contracts which said unlicensed contractor entered into utilizing his name and license number, engaged in proscribed conduct within the purview of Subsections 489.129(1)(e),(f),(g),(j) and (m), Florida Statutes.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that Respondent's general contractor's license number CG C022926 be REVOKED. 1/

RECOMMENDED this 26th day of March, 1990, 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 26th day of March, 1990.

ENDNOTES

1/ This recommendation is in keeping with the guidelines set forth in Rule 21E- 17.001, Florida Administrative Code, based on the number of violations, the repetitive nature of the violations inasmuch as a Final Order was previously issued which imposed an administrative fine or suspended Respondent's license, the degree of monetary harm brought about by Respondent's activities to his customers and the absence of any mitigating factors which would indicate that Respondent has attempted to redress the wrongs he caused to his customers.

COPIES FURNSIHED:

Andrea Bateman, Esquire Department of Professional

Regulation

1940 North Monroe Street Tallahassee, Florida 32399-0792

Richard L. Melvin

12737 North Florida Avenue Tampa, Florida 33612

Kenneth E. Easley, Esquire General Counsel

Department of Professional Regulation

1940 North Monroe, Suite 60

Tallahassee, Florida 32399-0792

Fred Seely, Exec. Director Construction Industry

Licensing Board

111 E. Coastline Dr., Rm. 504 Jacksonville, Florida 32202

Docket for Case No: 89-004835

Orders for Case No: 89-004835