STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF BUSINESS AND )

PROFESSIONAL REGULATION, )

)

Petitioner, )

)

vs. ) Case No. 97-2105

)

JERRY ANDERSON, d/b/a )

MR. FIXIT, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, this cause came on for formal hearing before P. Michael Ruff, duly designated Administrative Law Judge of the Division of Administrative Hearings, in Panama City, Florida, on November 17, 1997. The appearances were as follows:

APPEARANCES

For Petitioner: John O. Williams, Esquire

Boyd, Lindsey, Williams and Branch, P.A.

1407 Piedmont Drive East Tallahassee, Florida 32317

For Respondent: Sher L. Allan, Esquire

731 Oak Avenue

Panama City, Florida 32402 STATEMENT OF THE ISSUE

The issues to be resolved in this proceeding concern whether the Respondent violated Section 489.127(1)(f), Florida Statutes,

by contracting without a license.

PRELIMINARY STATEMENT

This cause arose upon the filing of an Administrative Complaint by the Petitioner agency alleging, in essence, that the Respondent violated Section 489.127(1)(f), Florida Statutes, by engaging in contracting without a license. More specifically, it is alleged that the Respondent executed a contract to construct an addition to a home; purchased materials for use in that project; obtained, supervised, and paid construction workers to perform the work; and even worked on the home himself. This among other things, including receiving a substantial sum of money for the work performed, is alleged to have constituted contracting. The Respondent admittedly does not have licensure or certification as a contractor. The Petitioner, since the initiation of this formal proceeding, voluntarily dismissed Count II of its complaint.

The cause came on for hearing as noticed. The Petitioner presented the testimony of Betty Thompson, the complaining witness and homeowner, and Eddie George, a laborer on the project. The Petitioner also offered Exhibits 1, 3, and 4, which were admitted into evidence without objection. Exhibit 2 was admitted over objection.

The Respondent presented the testimony of Donna Anderson.

Respondent witnesses Jerry Anderson, the Respondent, and Tim Polston did not appear at the final hearing. However, the undersigned allowed the Respondent to enter into evidence the

depositions of Jerry Anderson and Tim Polston taken after the final hearing over the Petitioner's objection. No exhibits were offered by the Respondent.

Upon conclusion of the hearing the parties elected to submit proposed Findings of Facts and Conclusions of Law and legal argument. Those pleadings were timely filed and have been considered in the rendition of this Recommended Order.

FINDINGS OF FACT

1. The Petitioner is an agency of the State of Florida charged with regulating entry into and the practice of contracting. It is also charged with discipline of licensed contractors who violate the various provisions of Chapter 489, Florida Statutes and the related rules, as well as those who practice contracting without appropriate licensure or certification.

2. The Respondent, by his own admission and by stipulation, was not registered, certified, or otherwise licensed by the State of Florida for engaging in the practice of contracting, at pertinent times.

3. On or about February 21, 1996, at her request, the Respondent provided Betty Thompson with a proposal to remodel and complete a new addition to her home at 110 Granger Street, Panama City Beach, Florida. The agreed-upon contract price was

   $26,685.00. Ms. Thompson signed the proposal, which contemplated construction of an addition in the amount of 593 square feet, at

   a price of $45.00 per square foot or $26,685.00. The price included all concrete, plumbing, and electrical work and installation. The terms of the contract stated that the price included the materials and the labor involved.

4. The Respondent also obtained plans for the addition on Ms. Thompson's behalf. The plans depict the Respondent's name thereon as the contractor for the project. The Respondent then instructed Ms. Thompson to obtain the necessary building permit, which she did.

5. The Respondent obtained several laborers to perform work on the project, including Eddie George, his son Shannon George, and Tim Polston. He introduced them to Ms. Thompson as the men who would perform most of the labor on the addition to her home. He hired these men as laborers and not Ms. Thompson. Later when he abandoned the job she hired them, or at least some of them, to finish the job.

6. Eddie and Shannon George performed the majority of the actual labor on the project under the Respondent's supervision. Mr. Polston performed the electrical work. According to Mr. George's testimony they were supervised by the Respondent just as they would be by any contractor. They were paid by the Respondent by the hour.

7. The Respondent stopped at the job site frequently and discussed the job's progress with Ms. Thompson. She addressed

   any questions and concerns to the Respondent, who conveyed any necessary information to his foreman, Eddie George.

8. The Respondent also performed some construction work himself. The Respondent helped tear out a back wall of the house, set two (2) doors, did some painting, and did some air conditioning work on the project. He also checked the job site each day, and checked to see what materials were needed, and bought and delivered the needed materials.

9. The Respondent received intermittent payments from Ms. Thompson, which he used to pay for the materials he purchased for the project. He also used a portion of those payments to pay his laborers.

10. On or about May 6, 1996, the Respondent abandoned the job. This occurred shortly after he first met with Ms. Thompson's father who was paying for the job. Apparently there were some disagreement or issue raised between them and the Respondent never appeared at the job site again.

11. After the Respondent abandoned the project,

    
    

    Ms. Thompson was unable to get another contractor to complete the job. She thereupon employed the laborers who had already worked on the job, the Georges and Tim Polston, to continue working there, which they agreed to do. It was only after the Respondent abandoned the job that Ms. Thompson paid the laborers directly herself.

12. The addition that the Respondent contracted to construct has numerous construction flaws, including, but not limited to, malfunctioning air conditioning in the addition, improperly installed flooring, gaps between the old and new roofs and the old and new exterior concrete block work, as well as a leaking roof. These problems arose during the construction which occurred under the Respondent's supervision.

    CONCLUSIONS OF LAW

    
    

    The Division of Administrative Hearings has jurisdiction of the subject matter of and the parties to this proceeding.

    Section 120.57(1), Florida Statutes.

    
    

13. The Petitioner agency is charged with regulating the practicing of contracting in accordance with Section 20.165, Florida Statutes, and Chapters 455 and 489, Florida Statutes. Section 455.228(1), provides that the Petitioner may impose an administrative penalty not to exceed $5,000 against a person not licensed by the Department who has violated a statute governing a regulated profession.

14. The Petitioner has been charged in the Administrative Complaint with violating Section 489.127(1)(f), Florida Statutes. That provision authorizes the Construction Industry Licensing Board (CILB) to take disciplinary action against an individual if that person "engages in the business or acts in the capacity of a contractor . . . without being duly registered or certified."

15. Clear and convincing evidence has been adduced to show that the Respondent has no certification or licensure to engage in contracting, and indeed the Respondent has admitted it. Clear and convincing evidence also shows that the Respondent acted in the capacity of a contractor in the situation described in the above Findings of Fact. Section 489.105, Florida Statutes, defines a contractor as one who undertakes to, submits a bid to, does himself, or by others constructs, remodels, or adds to any building or structure for others in return for compensation.

16. Respondent's actions clearly place him within this definition. He submitted a bid and signed a contract to construct an addition to Betty Thompson's home. The project included structural, electrical, plumbing, roofing, and air conditioning elements, all of which require licensure. Furthermore, he performed in the capacity of a general contractor overseeing the obtaining of plans, work crew, and materials. He supervised the laborers work, and dealt with the concrete supplier and the building inspector in the capacity of a general contractor. He performed the air conditioning work himself and performed other portions of the job himself. He collected funds from the homeowner and used them to pay the crew and the suppliers as would a general contractor. He received $18,937.00, for the work he performed personally or supervised. These facts place him squarely within the definition of contractor.

17. Section 489.103, Florida Statutes, has exceptions to

    the definition of contractor, but the Respondent's circumstance has not been shown to fit any of those exceptions. Section 489.103(12), Florida Statutes, exempts any person who only furnishes materials or supplies without fabricating them into, or consuming them in the performance of the contract. This section thus relieves material suppliers from licensure requirements.

    Clear and convincing evidence shows, however, that the Respondent did much more than merely provide materials. At the very minimum he admits that he performed the air conditioning work himself.

    The above facts show that he also obtained the plans with his name depicted thereon as contractor, obtained the laborers to perform the work and paid them out of funds provided him by the owner, Ms. Thompson. He supervised their work, essentially daily.

18. The fact that Ms. Thompson obtained the building permit does not protect the Respondent. Section 489.103(7), Florida Statutes, states, in pertinent part, that an owner's permit does not exempt a person who is employed by the owner who acts in the capacity of the contractor. The Respondent clearly acted as a contractor in the instant situation and Section 490.103(7), Florida Statutes, will thus not absolve him from liability as an unlicensed contractor.

19. The Respondent also seeks to avoid liability for contracting without a license, by contending that he did not perform the work himself. The definition under Section 489.105,

    Florida Statutes, however, makes clear that merely performing the labor is not the only task of contracting. The Respondent's description of his own activities in fact describes the actions of a general contractor - doing footwork, paperwork, bringing people to the job site to perform the actual labor, handling the money and paying the laborers. Eddie George, one of the individuals who was hired by the Respondent to perform much of the labor, characterized his own role as foreman of the job and the Respondent's role as a typical general contractor, in his testimony. Mr. George was paid by the Respondent at all times prior to the Respondent's abandonment of the job.

20. The Respondent's claims that the homeowner used the services of the unlicensed electrician are to no avail because the unlicensed status of the laborers hired by the Respondent does not protect the Respondent from liability. Mr. George's and Mr. Polston's licenses are not relevant to any charge against the Respondent. In fact, Section 489.103, Florida Statutes, provides an exemption from licensing requirements for individuals who work for a contractor. In any event, Mr. George's and Mr. Polston's licenses are not at issue, and any lack of licensure on their part is immaterial to the Respondent's obligation to have a license before entering into and performing in the way he performed with regard to the contract in this case.

21. In summary, the Respondent's claim that he did not contract is refuted by Ms. Thompson's testimony and the other

testimony culminating in the above Findings of Fact. That is, he signed a contract with the owner; there are receipts bearing his name for materials and plans which he obtained which depict him as the contractor. His own deposition reveals numerous internal inconsistencies that expose his capacity as an actual contractor in the circumstances at issue. The Respondent claims, for example, that he was rarely on the job site but he also claims to know how many hours each laborer worked when he stated that he advised Ms. Thompson that the laborers were "scamming" her. In another instance in his deposition, he claims that he does not know "what contractors actually get," when the record establishes that he had previously been in business with a licensed contractor as a partner and had in fact contracted with

Ms. Thompson on a separate project one year before the subject contract was executed. The Respondent, therefore, not only violated the statute but in doing so took advantage of the homeowner by abandoning the project before it was finished causing her to incur additional expense that she might not have incurred in order to finish the project. He performed it in an unsatisfactory manner.

RECOMMENDATION

Having considered the foregoing Findings of Fact, Conclusions of Law, the evidence of record, the candor and demeanor of the witnesses and the pleadings and arguments of the parties, it is, therefore,

RECOMMENDED:

That a Final Order be entered by the Florida Construction Industry Licensing Board, finding that the Respondent violated Section 489.127(1)(f), Florida Statutes, by contracting without proper licensure or certification, and imposing a fine of

$5,000.00.

DONE AND ENTERED this 1st day of April, 1998, in Tallahassee, Leon County, Florida.

P. MICHAEL RUFF Administrative Law Judge

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

(850) 488-9675 SUNCOM 278-9675

Fax Filing (850) 921-6847

Filed with the Clerk of the Division of Administrative Hearings this 1st day of April, 1998.

COPIES FURNISHED:

John O. Williams, Esquire Boyd, Lindsey, Williams,

and Branch, P.A.

1407 Piedmont Drive, East Tallahassee, Florida 32317

Sher L. Allan, Esquire 731 Oak Avenue

Panama City, Florida 32402

Rodney Hurst, Executive Director Construction Industry Licensing

7960 Arlington Expressway, Suite 300

Jacksonville, Florida 32211-7467

Linda L. Goodgame, Esquire Department of Business and

Professional Regulation 1940 North Monroe Street

Tallahassee, Florida 32399-1007

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within

15 days from the date of 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: 97-002105

Orders for Case No: 97-002105