STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF BUSINESS AND )

PROFESSIONAL REGULATION, ) CONSTRUCTION INDUSTRY LICENSING ) BOARD, )

)

Petitioner, )

)

vs. ) Case No. 97-2569

)

LAWRENCE A. MIZNE, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to Notice, this cause was heard by Linda M. Rigot, the assigned Administrative Law Judge of the Division of Administrative Hearings, on December 4, 1997, in Miami, Florida.

APPEARANCES

For Petitioner: Gail Hoge, Esquire

Department of Business and Professional Regulation

Northwood Centre, Suite 60 1940 North Monroe Street

Tallahassee, Florida 32399-0792

For Respondent: Lawrence A. Mizne, pro se

801 South 21st Avenue Hollywood, Florida 33020

STATEMENT OF THE ISSUE

The issue presented is whether Respondent is guilty of the allegations contained in the Administrative Complaint filed against him, and, if so, what disciplinary action should be taken against him, if any.

PRELIMINARY STATEMENT

On October 4, 1996, Petitioner issued an Administrative Complaint against Respondent alleging that he had violated several of the statutes regulating his conduct as a certified roofing contractor, and Respondent timely requested an evidentiary proceeding regarding those allegations. This cause was transferred to the Division of Administrative Hearings to conduct the evidentiary proceeding.

Petitioner presented the testimony of Alice Young, Respondent, Eyder Espinosa f/k/a Eyder Macaya, and Derek Lester Hammond. Respondent Lawrence A. Mizne also testified on his own behalf. Additionally, Petitioner's Exhibits numbered 1-9 and Respondent's Exhibits numbered 1-8 were admitted in evidence.

Only Petitioner filed post hearing a proposed recommended order. That document has been considered in the entry of this Recommended Order.

FINDINGS OF FACT

1. At all times material hereto, Respondent has been a certified roofing contractor in the State of Florida, having been issued license numbered CC C050454 by the Florida Construction Industry Licensing Board. At all times material hereto, Respondent has been the licensed qualifying agent for Hi-Tech Roofing, USA, Inc.

2. In order to repair hurricane damage to her roof, Alice Young asked a friend to recommend someone to do the work. Her friend recommended Roy West who had done work for her and for a friend of hers. In early March 1993 Young contacted West.

3. Young entered into a contract with West for West to repair the damage, including removal of tile, replacement of bad decking, and reinstallation of roofing felt and tile. Since the proposal form used by West was blank as to the name of the company involved, Young asked West the name of his company. West wrote Hi Teck Roofing on the proposal form.

4. The contract price was $11,500, with payment to be made in three increments. West told Young to make her checks payable to him personally. He also told her he was from Arkansas and that he would be going back and forth between Arkansas and Miami.

5. West began the work on or about March 17, 1993. Young gave him a check on that date for $3,833 and a second check in the same amount on March 23. He also received a partial payment of $1200 toward the balance on April 23, 1993. All three checks were made payable to Roy West and reflect that they were cashed by him using an Arkansas driver's license as identification.

6. On March 17, 1993, Young signed a partially-completed application for a permit from the Metropolitan Dade County Building & Zoning Department for the contracted work. The application as filed with Metropolitan Dade County lists Hi-Tech Roofing USA as the contractor and Respondent as the qualifier.

   The application as filed purports to bear the signature of Respondent as qualifier for Hi-Tech Roofing, USA, Inc., and is dated April 1, 1993. His signature was purportedly witnessed and notarized by Eyder C. Macaya, his former secretary. Metropolitan Dade County issued the permit through Respondent's licensure for the contracted work.

7. When the job neared completion, West requested payment in full. However, Young refused to make the final payment, alleging that the peak in the roof line was uneven, and dismissed him from the job. Before West left, Young demanded to see the permit for the work, and he showed it to her.

8. Young contacted her attorney, who informed her that West was not licensed and advised her to file a complaint with Dade County.

9. In 1995, two years later, Young filed her complaint with Dade County. She was contacted by an enforcement officer for the County and provided him with her documentation. The County contacted Respondent, and Respondent contacted Young.

10. Respondent inquired about her problem with West and about the project. Respondent offered to renew the original permit and complete the roof, including repairing a leak and the peak in the roof, for the balance of the price contracted between Young and West. Respondent and Young executed a contract on

    May 7, 1996, and Respondent commenced his repairs on the roof.

    
    

11. After Respondent had completed his work, Young still

    complained about the peak in the roof. One portion of the roof over the patio continued to leak.

12. Respondent hired at a cost of $250 a special inspector to verify that the work was completed according to Code.

13. Young refused to pay Respondent any money pursuant to the contract she had with him or for any of the work he performed because she still was not satisfied with the roof peak. Although Respondent filed a lien against her property for $2,634 (the balance of Young's contract with West and the full price of the contract between Young and Respondent), Respondent never enforced that lien.

14. At no time material hereto was West licensed, registered, or otherwise qualified to perform contracting in the State of Florida. At no time material hereto was West an employee of Hi-Tech Roofing, USA.

15. Respondent did not sign the permit application used by West to obtain the permit to perform Young's roof repairs. Further, Respondent did not authorize West to perform roof repairs to Young's residence on behalf of Respondent or on behalf of Hi-Tech Roofing, USA, Inc. Respondent did not have a business relationship with West at any time material hereto.

    CONCLUSIONS OF LAW

    
    

16. The Division of Administrative Hearings has jurisdiction over the parties hereto and the subject matter hereof. Sections 120.569 and 120.57(1), Florida Statutes.

17. The Administrative Complaint filed in this cause contains three counts. Count I alleges that Respondent violated Section 489.129(1)(e), Florida Statutes (1992 Supp.), by performing an act which assists an uncertified or unregistered person in engaging in the practice of contracting if the certificate holder or registrant knows or has reasonable grounds to know that the person is uncertified and unregistered. Petitioner has failed to prove the allegations of Count I by clear and convincing evidence.

18. Respondent denied any knowledge of the Young job until he was contacted by Metropolitan Dade County two years later. In support of its allegation that Respondent assisted West with engaging in the practice of contracting without benefit of registration or certification, Petitioner presented the testimony of Respondent's former secretary Eyder Espinosa f/k/a Eyder Macaya and of a questioned documents or handwriting expert. The testimony of Macaya is not credible. Her animosity toward Respondent was readily apparent during her testimony, and her memory regarding any details of her employment was sketchy but for remembering that Respondent signed the Young permit application. She was unable to remember any of the reasons Respondent had fired her but continues to maintain she had some right to use her employer's telephone to make long distance calls to her relatives.

19. The testimony of the handwriting expert was not persuasive. Although that expert requested that Petitioner provide him with original signatures of Respondent to use in forming an opinion, Petitioner only provided photocopies. When only photocopies are used, an opinion as to the authorship of a questioned signature is given with limitation.

20. In rendering an opinion as to authorship, a handwriting expert uses a continuum. One end of the continuum represents a determination that someone is not the author; the other end represents a positive identification. The middle of the continuum represents no opinion one way or the other. Starting in the middle of the continuum (the "do not know" point) and moving toward the positive identification point, there are three points referencing degree of certainty: (1) there are indications that the person is the author; (2) the person is probably the author; (3) the person is very probably the author; and (4) the person is the author.

21. The handwriting expert opined only that Respondent was probably the author of the signature on the application for permit: half-way between having no opinion and identifying the author. That evidence is less than the clear and convincing evidence which Petitioner must present to prevail in this proceeding.

22. Petitioner also argues that even if Respondent's former secretary or another employee forged Respondent's signature, he

    is still responsible and should be disciplined. Respondent is not, however, charged with vicarious liability based upon an illegal act committed by an employee without Respondent's knowledge. Petitioner charged Respondent with signing the permit application in order to assist West in unlicensed activities, and the statute Respondent is charged with violating specifically requires actual or constructive knowledge that the person being assisted is not certified or registered. Respondent did not sign the permit application and knew nothing about the Young job until two years later.

23. Count II of the Administrative Complaint charges Respondent with violating Section 489.129(1)(f), Florida Statutes (1992 Supp.), by knowingly combining or conspiring with an uncertified or unregistered person by allowing his certificate to be used by the uncertified or unregistered person. Petitioner candidly admits in its proposed recommended order that it has failed to present clear and convincing evidence that Respondent is guilty of the allegations in Count II.

24. Count III of the Administrative Complaint charges Respondent with violating Section 489.129(1)(n), Florida Statutes (1992 Supp.), by being guilty of incompetence or misconduct in the practice of contracting. Petitioner candidly admits in its proposed recommended order that Petitioner has not alleged in the Administrative Complaint independent facts that support a separate charge of misconduct. Petitioner further admits that

misconduct through assisting an unlicensed contractor is subsumed as a part of Count I.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions of Law, it is

RECOMMENDED that a final order be entered finding Respondent not guilty and dismissing the Administrative Complaint filed against him in this cause.

DONE AND ENTERED this 3rd day of March, 1998, in Tallahassee, Leon County, Florida.

LINDA M. RIGOT

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 3rd day of March, 1998.

COPIES FURNISHED:

Gail Hoge, Esquire Department of Business and

Professional Regulation Northwood Centre, Suite 60 1940 North Monroe Street

Tallahassee, Florida 32399-0792

Lawrence A. Mizne, pro se 801 South 21st Avenue Hollywood, Florida 33020

Lynda L. Goodgame, General Counsel Department of Business and

Professional Regulation Northwood Centre

1940 North Monroe Street Tallahassee, Florida 32399-0792

Rodney Hurst, Executive Director Construction Industry Licensing Board 7960 Arlington Expressway, Suite 300

Jacksonville, Florida 32211-7467

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: 97-002569

Orders for Case No: 97-002569