STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF BUSINESS AND ) PROFESSIONAL REGULATION, FLORIDA ) CONSTRUCTION INDUSTRY BOARD, )

)

Petitioner, )

)

vs. ) CASE NO. 96-0945

)

FRANK E. KAEHN, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, Susan B. Kirkland, held a formal hearing in this case on May 31, 1996, in Stuart, Florida.

APPEARANCES

For Petitioner: Donna Bass, Esquire

Department of Business and Professional Regulation

1940 North Monroe Street Tallahassee, Florida 32399-0792

For Respondent: Frank E. Kaehn, Pro Se

Post Office Box 7639

Port St. Lucie, Florida 34985 STATEMENT OF THE ISSUES

Whether Respondent violated Sections 489.127(1)(f) and 481.223(1)(c), Florida Statutes, and if so, what penalty should be imposed.

PRELIMINARY STATEMENT

On January 10, 1996, Petitioner, Department of Business and Professional Regulation (Department), filed a two count Administrative Complaint against Respondent, Frank E. Kaehn (Kaehn), alleging that he violated Sections 489.127(1)(f) and 481.223(1)(c), Florida Statutes. Kaehn requested an administrative hearing. The case was forwarded to the Division of Administrative Hearings on February 23, 1996, for assignment to a hearing officer.

At the final hearing, Petitioner called Robert Baum and Kathleen Baum as witnesses. Petitioner's Exhibits 1-3 were admitted in evidence. Kaehn testified in his own behalf and called Robert Baum as a witness. Respondent's exhibits 1-4 were admitted in evidence.

At the final hearing the parties agreed to file proposed recommended orders within ten days after the date the transcript was filed. The transcript was filed on June 19, 1996. The parties' proposed findings of fact are addressed in the Appendix to this Recommended Order.

FINDINGS OF FACT

1. Kaehn is not currently licensed and was not licensed in 1994 as a contractor by the Florida Construction Industry Licensing Board.

   
   

2. Kaehn is not currently licensed and was not licensed in 1994 as an architect in the State of Florida.

   
   

3. On May 16, 1994, Robert and Kathleen Baum (Baums) entered into a letter of agreement with Kaehn "for the design and construction of a custom 3-bedroom,

   2 bath residence to be constructed on owner's lot." The agreement further provided:

   
   

   Cost of design, working drawings, supervision, permits and fees are included in the contract price shown below. A one year limited warranty shall be presented to the owners at closing.

   Construction shall be executed by Gregory Kurpita Certified Building Contractor [number] cbco26976 under the supervision of Frank E. Kaehn, B.A.A.

   
   

   Gregory Kurpita was not a party to the contract between the Baums and Kaehn.

   
   

4. On May 17, 1994, the Baums and Kaehn signed an addendum to the letter of agreement, deleting the contract price of $80,000 and adding the following language:

   
   

   Contract price shall be the sum total of all cost of construction as presented to Mr. Baum,

   as bills and invoices from all suppliers and sub- contractors for all materials, labor and permits required to complete construction. A $5,000.00 fee (less design fee of $308.00) shall be paid

   to Frank E. Kaehn at time of completion.

   
   

5. Robert Baum pulled the building permit for the construction of the dwelling, acting as owner/builder.

   
   

6. Kaehn was not an employee of the Baums.

   
   

7. Pursuant to the contract, Kaehn supervised the construction of the house. He also purchased the majority of the supplies used in the construction.

   
   

8. A dispute arose between the Baums and Kaehn concerning the entrance to the residence. The front entry was out of plumb. Kaehn had advised the carpenter during the construction to move some interior half walls to make the area appear to be sufficiently plumb so that tile could be applied to the foyer. However, by moving the half walls, the remaining portion of the floor in the house would not appear to be plumb. If carpet had been installed in the remaining portion of the house there would have been no problem, but the Baum's decided to install tile throughout the house. The tiler started from the rear

   of the house and moved toward the foyer so that when he came to the foyer to place the tile, it was obvious that the foyer was not plumb.

   
   

9. Mr. Baum advised Kaehn that he was not going to pay Kaehn the agreed fee. In turn, Kaehn filed a claim of lien on the Baum's property for the following services which he provided:

   
   

   Architectural design [and] working drawings, architectural supervision, estimating cost, expediting, construction (sic) counseltation.

   
   

10. By order dated November 3, 1995, Judge Scott M. Kenney of the Circuit Court of the Nineteenth Judicial Circuit in and for St. Lucie County, Florida, denied Kaehn's Claim of Lien on the grounds that Kaehn did not have the appropriate licenses to perform the work required for the Claim of Lien.

    
    

11. The Baums were unable to file an action under the Construction Industry Recovery Fund because Kaehn was unlicensed.

    
    

12. Since at least 1994, Kaehn has placed an advertisement in the yellow pages of the local telephone directory which stated:

    
    

    KAEHN FRANK E BAA ARCHITECTURAL DESIGN CUSTOM BUILDER - DRAFTING

    571 Ann Marie Ln PSL. 871-6941

13. During the hearing, Kaehn referred to himself as an architect and a custom builder.

    
    

    CONCLUSIONS OF LAW

    
    

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

    
    

15. Petitioner is the agency of the State of Florida charged with regulating the practice of construction pursuant to Section 489.101, Florida Statutes.

    
    

16. Petitioner is the agency of the State of Florida charged with regulating the practice of architecture pursuant to Chapter 481, Florida Statutes.

    
    

17. Petitioner has jurisdiction over the unlicensed practice of contracting and architecture pursuant to Section 455.228(1), Florida Statutes.

    
    

18. Section 489.101, Florida Statutes, provides:

    
    

    The Legislature recognizes that the construction and home improvement industries may pose a danger of significant harm to the public when incompetent or dishonest contractors provide unsafe, unstable, or short-lived products or services. Therefore, it is necessary in the interest of the public health, safety, and welfare to regulate the construction industry.

19. Section 489.127(1)(f), Florida Statutes, provides that no person shall:

    
    

    Engage in the business or act in the capacity of a contractor or advertise himself or a business

    organization as available to engage in the business or act in the capacity of a contractor without being duly registered or certified.

20. Section 489.105(3), Florida Statutes, defines a contractor as [T]he person who is qualified for, and shall only

    be responsible for, the project contracted for and

    means, except as exempted in this part, the person who, for compensation, undertakes to, submits a bid to, or does himself or by others construct, repair, alter, remodel, add to, demolish, subtract from, or improve any building or structure, including related improvements to real estate,

    for others or for resale to others; and whose job scope is substantially similar to the job scope described in one of the paragraphs of this subsection. . . .

    
    

21. The term "contracting" as defined in Section 489.105(6), Florida Statutes, includes the attempted sale of contracting services and the negotiation or bid for a contract on those services.

    
    

22. The contract between Kaehn and the Baums was for the "design and construction" of a three bedroom residence. Kaehn's advertisement in the telephone directory indicates that Kaehn holds himself out as a "custom builder." Kaehn admits that he was not and is not a licensed contractor. The Department has established that Kaehn violated Section 489.127(1)(f), Florida Statutes.

    
    

23. Section 481.223(1)(c), Florida Statutes, provides:

    
    

    1. A person may not knowingly:

       * * * *

       (c) Use the name or title "architect" or "registered architect," or interior designer" or "registered interior designer," or words to that effect, when the person is not then the holder of a valid license issued pursuant to this part;

       
       

24. By filing a claim of lien for services described as "architectural design" and "architectural supervision," Kaehn was essentially holding himself out as an architect. The advertisements in the telephone books described his services as "architectural design." The use of the words "architectural design" and "architectural supervision" are sufficient to led the public to believe that Kaehn was an architect. Kaehn admits that he was not and is not a licensed architect. The Department has established that Kaehn violated Section 481.223(1)(c), Florida Statutes.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered finding that Frank E. Kaehn

violated Sections 481.223(1)(c) and 489.127(1)(f), Florida Statutes, and imposing an administrative fine of $1,000 for each count for a total of $2,000.

DONE AND ENTERED this 8th day of July, 1996, in Tallahassee, Leon County, Florida.

SUSAN B. KIRKLAND

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 8th day of July, 1996.

APPENDIX TO RECOMMENDED ORDER, CASE NO. 96-0945

To comply with the requirements of Section 120.59(2), Florida Statutes (1995), the following rulings are made on the parties' proposed findings of fact:

Petitioner's Proposed Findings of Fact.

1. Paragraphs 1-6: Accepted in substance.

2. Paragraph 7: The first sentence is rejected as constituting a conclusion of law. The remainder is accepted in substance.

3. Paragraphs 8-10: Accepted in substance.

4. Paragraph 11: Rejected to the extent that he did not verbally tell them he was a custom builder and they did not rely on the telephone directory advertisement.

5. Paragraphs 12-14: Accepted in substance.

6. Paragraph 15: Rejected as constituting a conclusion of law.

7. Paragraphs 16-17: Accepted in substance.

8. Paragraph 18: Accepted to the extent that by the agreement and the filing of the lien that he held himself out to the Baums as an architect.

9. Paragraph 19: Rejected as not supported by competent evidence. The only evidence was based on hearsay.

10. Paragraphs 20-26: Accepted in substance.

Respondent's Proposed Findings of Fact.

1. Paragraph 1: Rejected as constituting argument.

2. Paragraphs 2-4: Rejected as not being provided at the final hearing.

3. Paragraph 5: Accepted in substance.

4. Paragraph 6: Rejected as constituting argument.

5. Paragraph 7: Rejected as not presented at final hearing.

6. Paragraph 8: The first sentence is accepted to the extent that the contract stated that construction would be executed by Kurpita. The remainder is rejected as constituting argument.

7. Paragraph 9: The first sentence is rejected as subordinate to the facts found. The remainder is rejected as constituting argument.

8. Paragraphs 10-12: Rejected as constituting argument.

COPIES FURNISHED:

Donna Bass, Esquire Department of Business and

Professional Regulation 1940 North Monroe Street

Tallahassee, Florida 32399-0792

Frank E. Kaehn

Post Office Box 7639

Port St. Lucie, Florida 34985

Richard Hickok, Executive Director Department of Business

and Professional Regulation

Board of Construction Industry Licensing 7960 Arlington Expressway, Suite 300

Jacksonville, Florida 32211-7467

Lynda Goodgame General Counsel

Department of Business and Professional Regulation

Northwood Centre

1940 North Monroe Street Tallahassee, Florida 32399-0792

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 ten days in which to submit written exceptions. Some agencies allow a larger period within which to submit written exceptions. You should contact 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: 96-000945

Orders for Case No: 96-000945