STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

PINELLAS COUNTY CONSTRUCTION ) LICENSING BOARD, )

)

Petitioner, )

)

vs. ) CASE NO. 92-5625

)

JAY W. BECKNER, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice the Division of Administrative Hearings by its duly designated Hearing Officer, K. N. Ayers, held a formal hearing in the above- styled case on December 10, 1992 at Clearwater, Florida.

APPEARANCES

For Petitioner: David Sadowski, Esquire

315 Court Street Clearwater, Florida 33616

For Respondent: Jay W. Beckner, pro se

14608 Waterline Road

Bradenton, Florida 34202 STATEMENT OF THE ISSUE

Whether Respondent violated provisions of Chapter 75-489, Laws of Florida, as amended, as more specifically alleged in Counts Three and Four of the Administrative Complaint dated August 25, 1992. Counts One and Two of the Administrative Complaint were dismissed.

PRELIMINARY STATEMENT

By Administrative Complaint dated August 25, 1992, the Pinellas County Construction Licensing Board (PCCLB), Petitioner, seeks to revoke, suspend or otherwise discipline the license of Jay W. Beckner, Respondent, as a certified air conditioning contractor. As grounds therefor, it is alleged that Respondent, as the qualifying contractor of record for Jay's Air Conditioning & Refrigeration, sold said business to Vincent Tipaldo, an uncertified or unregistered person, on December 11, 1991, in a closing agreement, authorized Vincent Tipaldo and other uncertified or unregistered persons to obtain building permits and occupational licenses for said business; took no active participation in the operations, management, or control of said business; and knowingly assisted uncertified and unregistered persons in the practice of contracting, from December 11, 1991 to May 5, 1992 when Respondent withdrew authorization of Vincent Tipaldo or anyone else to pull permits for said business.

At the hearing, Petitioner called two witnesses. Respondent testified on his own behalf, and ten exhibits were admitted into evidence. Proposed findings submitted by Petitioner are accepted and generally incorporated herein. Having fully considered all evidence presented, I submit the following:

FINDINGS OF FACT

1. At all times relevant hereto, Respondent was licensed by Petitioner as a certified air conditioning contractor having been issued license No. C-2805 (Exhibit 1).

   
   

2. From 1984 to June 29, 1992, Respondent was the qualifying contractor of record for Jay's Air Conditioning & Refrigeration (Exhibits 1 and 2).

   
   

3. On December 11, 1991, Respondent and Vincent Tipaldo executed a contract for the sale and purchase of certain goodwill and inventory of Jay's Air Conditioning & Refrigeration, of Pinellas County, Florida from the Respondent to Tipaldo. (Exhibit 4).

   
   

   1. Paragraph 5 of the above agreement stated that Respondent agreed to allow Vincent

      Tipaldo to use Respondent's contractor license until the buyer, Vincent Tipaldo, obtained his own.

   2. Vincent Tipaldo transferred $18,000.00 to Respondent as consideration for the contract with the remaining $10,000.00 to be paid to Respondent in installments of $318 per month for three years.

      
      

4. Respondent authorized Vincent Tipaldo and other uncertified and unregistered persons to pull and obtain permits under his license for Jay's Air Conditioning & Refrigeration from December 11, 1991 to May 5, 1992 (Exhibit 5).

   
   

5. Shortly after the sale of the business Respondent was injured in a vehicle accident and was unable to work. Tipaldo stopped the monthly payments to Respondent and Respondent ceased supervising the projects. The situation deteriorated and civil litigation is ongoing.

   
   

6. On May 5, 1992 and thereafter, Respondent no longer authorized anyone to pull permits or act under his license for Jay's Air Conditioning & Refrigeration using license No. C-2805 (Exhibit 5).

   
   

7. On June 29, 1992, Respondent submitted to Petitioner a change of status no longer acting as the qualifying contractor of record for Jay's Air Conditioning & Refrigeration (Exhibit 2).

   
   

8. Respondent did not supervise and had no active participation in the operation, management or control of the business from shortly after December 11, 1992 to June 29, 1992.

   
   

9. Tipaldo was not licensed and has never been licensed as an air conditioning contractor by the PCCLB (Exhibit 3).

   
   

10. After Respondent no longer authorized Tipaldi or anyone else to pull permits for Jay's Air Conditioning & Refrigeration in May 1992, Joe B. Hutson

    became the qualifying contractor of record for Jay's Air Conditioning & Refrigeration (Exhibits 6, 7 and 9).

    
    

    CONCLUSIONS OF LAW

    
    

11. The Division of Administrative Hearings has jurisdiction over the parties to, and the subject matter of, these proceedings. In these proceedings, Petitioner has the burden of proving the allegations by clear and convincing evidence. Ferris v. Turlington, 510 So.2d 292 (Fla. 1987).

    
    

12. The Administrative Complaint alleges that Respondent, a certified air conditioning contractor and qualifying contractor of record for Jay's Air Conditioning & Refrigeration, sold said company in December 11, 1991, and thereafter had no active participation in the operation, management or control of the business, and knowingly assisted an uncertified or unregistered person in the practice of contracting.

    
    

13. Chapter 75-489, Laws of Florida, Section 24(2), as amended, provides in pertinent part the following acts constitute cause of disciplinary action:

    
    

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

    2. Knowingly combining or conspiring with an uncertified or unregistered person by allowing his certificate of registration to be used by the uncertified or unregistered person with

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

    
    

14. The evidence is clear and convincing that:

    
    

    1. Respondent sold his business, Jay's Air Conditioning & Refrigeration by written agreement on December 11, 1991 to an unlicensed and unregistered person, Vincent Tipaldo, with the express, written intent of allowing Vincent Tipaldo "to use his contractor's license until Buyer obtains his own." However, Respondent initially intended to supervise work done under his license.

    2. Respondent expressly authorized Vincent Tipaldo and other uncertified and unregistered persons to pull permits for Jay's Air Conditioning & Refrigeration until around May 5, 1992.

    3. Respondent did not supervise and had no active participation in the management, operation or control of said business from shortly after December 11, 1991, the date of agreement to sell said business, to June 29, 1992, the date when Respondent submitted to Petitioner the change of status form declaring that Respondent is no longer the qualifying contractor for Jay's Air Conditioning & Refrigeration. Respondent knew Vincent Tipaldo and others working with him were not licensed or registered with the PCCLB.

       
       

15. Section 24(5) of Chapter 75-489, Laws of Florida, as amended, authorizes the Petitioner to suspend the certificate holder or registrant from all operations as contractor for a fixed period of time, to revoke a certificate of registration, and impose an administrative fine or penalty not to exceed

$1,000.00 per count on any contractor found guilty of the above listed offenses.

Having considered all the evidence submitted and the gravity of the offenses:

RECOMMENDATION

It is, therefore RECOMMENDED:

That the license of Jay W. Beckner as a certified air conditioning contractor be suspended for a period of six months under such conditions as the Board deems appropriate.

DONE and ENTERED this 6th day of January, 1993, at Tallahassee, Florida.

K. N. AYERS 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 6th day of January, 1993.

COPIES FURNISHED:

David S. Sadowsky, Esquire

315 Court Street Clearwater, Florida 34616

Jay W. Beckner

P.O. Box 20573

Bradenton, Florida 34203

William J. Owens, Executive Director Pinellas County Construction Licensing Board

11701 Belcher Road - Suite 102

Largo, Florida 34643 5116

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions to this Recommended Order. All agencies allow each party at least 10 days in which to submit written exceptions. Some agencies allow a larger period within which to submit written exceptions. You should consult with the agency that will issue the final order in this case concerning agency rules on the deadline for filing exceptions to this Recommended Order. Any exceptions to this Recommended Order should be filed with the agency that will issue the final order in this case.

Docket for Case No: 92-005625

Orders for Case No: 92-005625