STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF BUSINESS AND )

PROFESSIONAL REGULATION, ) CONSTRUCTION INDUSTRY LICENSING ) BOARD, )

)

Petitioner, )

)

vs. ) Case No. 02-0888PL

)

MICHAEL J. MORROW, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a final hearing was conducted on

April 26, 2002, by video teleconference between Fort Lauderdale and Tallahassee, Florida, before Claude B. Arrington, a duly- designated Administrative Law Judge of the Division of

Administrative Hearings.

APPEARANCES

For Petitioner: Brian A. Higgins, Esquire

Department of Business and Professional Regulation 1940 North Monroe Street

Tallahassee, Florida 32399-2202

For Respondent: Michael J. Morrow, pro se

1902 South Roma Way

Boynton Beach, Florida 33426

STATEMENT OF THE ISSUE

Whether Respondent, a certified air conditioning contractor, committed the offenses alleged in the Administrative Complaint and the penalties, if any, that should be imposed.

PRELIMINARY STATEMENT

On December 22, 2000, Petitioner filed an Administrative Complaint against Respondent that contained three counts. The following is intended to be a brief summary of the allegations of the Administrative Complaint. Any question as to the Administrative Complaint should be resolved by reading that pleading in its entirety. The Administrative Complaint contained factual allegations pertaining to Respondent's licensure, to an air conditioning job performed for Carmen Schneider by Sun Coast Air Conditioning (Sun Coast), and to the permit that was obtained from the City of Miramar for the Schneider job. Count I alleged that Respondent was required to obtain a certificate of authority for his air conditioning corporation and that he failed to do so in violation of Section 489.119(2), Florida Statutes. Count II alleged that Respondent applied for a building permit without having a contract authorizing the work in violation of Section 489.129(1)(i), Florida Statutes. Count III alleged that Respondent knowingly enabled Sun Coast to engage in uncertified or unregistered

contracting in violation of Section 489.129(1)(d), Florida Statutes.

At the final hearing, Petitioner presented the testimony of Ms. Schenider and of Richard Kittendorf, a building official with the City of Miramar, Florida. Petitioner presented seven exhibits, each of which was admitted into evidence. Respondent testified on his own behalf, but offered no other testimony and no exhibits.

A Transcript of the proceedings was filed on May 20, 2002.

Petitioner filed a Proposed Recommended Order, which has been duly considered by the undersigned in the preparation of this Recommended Order. Respondent did not submit a Proposed Recommended Order.

FINDINGS OF FACT

1. At all times material to this proceeding, Respondent has been a certified air conditioning contractor, having been issued license number 1133613 on December 27, 1985. Petitioner's licensure file reflects that Respondent's license is held as follows: "Michael J. Morrow d/b/a ATM A/C & Refrigeration, Inc." (ATM).

2. Respondent has never applied for a certificate of authority for ATM pursuant to the provisions of Section 489.119, Florida Statutes.

3. On December 12, 1998, Carmen Schneider contracted with Sun Coast to install an air conditioning and heating unit at her residence located in Miramar, Florida. At no time has Sun Coast been a licensed air conditioning contractor.

4. Respondent had no agreement to do any work for

   
   

   Ms. Schneider, and he had no agreement to subcontract the work for Sun Coast.

5. The City of Miramar issued permit 98121104 for the Schneider job. According to its computer records, Respondent, d/b/a ATM pulled the permit for the Schneider job. The greater weight of the credible evidence established that neither Respondent nor his corporation pulled the permit for the Schneider job1 as alleged in Count II of the Administrative Complaint.

6. Petitioner failed to establish that Respondent enabled Sun Coast to engage in uncertified or unregistered contracting in violation of Section 489.129(1)(d), Florida Statutes, as alleged in Count III.

7. Petitioner presented an affidavit establishing that its costs of investigation of Respondent (absent attorney time) totaled $705.03. That affidavit does not state the cost of investigation for each count.

8. On February 2, 1998, Petitioner entered a Final Order in Case Number 98-12100 that disciplined Respondent's license

   because he assisted an unlicensed person or entity engage in the uncertified and unregistered practice of contracting and because he proceeded on a job without a permit.

   CONCLUSIONS OF LAW

   
   

9. The Division of Administrative Hearings has jurisdiction over the subject matter and parties to this case pursuant to Sections 120.569 and 120.57(1), Florida Statutes.

10. Petitioner has the burden of proving by clear and convincing evidence the allegations against Respondent. See Ferris v. Turlington, 510 So. 2d 292 (Fla. 1987); Evans Packing

    Co. v. Department of Agriculture and Consumer Services, 550 So. 2d 112 (Fla. 1st DCA 1989); and Inquiry Concerning a Judge, 645 So. 2d 398 (Fla. 1994). The following statement has been repeatedly cited in discussions of the clear and convincing evidence standard:

    Clear and convincing evidence requires that the evidence must be found to be credible; the facts to which the witnesses testify must be distinctly remembered; the evidence must be precise and explicit and the witnesses must be lacking in confusion as to the facts in issue. The evidence must be of such weight that it produces in the mind of the trier of fact the firm belief of (sic) conviction, without hesitancy, as to the truth of the allegations sought to be established. Slomowitz v. Walker, 429

    So. 2d 797, 800 (Fla. 4th DCA 1983).

    
    

11. Respondent was required to apply for a certificate of authority for ATM pursuant to the provisions of Section

    489.119(2), Florida Statutes, which provides, in pertinent part, as follows:

    1. If the applicant proposes to engage in contracting as a business organization, including any partnership, corporation, business trust, or other legal entity, or in any name other than the applicant's legal name or a fictitious name where the applicant is doing business as a sole proprietorship, the business organization must apply for a certificate of authority through a qualifying agent and under the fictitious name, if any.

       1. The application for a certificate of authority must state the name of the partnership and of its partners; the name of the corporation and of its officers and directors and the name of each of its stockholders who is also an officer or director; the name of the business trust and its trustees; or the name of such other legal entity and its members; and must state the fictitious name, if any, under which the business organization is doing business.

          1. The application for primary qualifying agent must include an affidavit on a form provided by the board attesting that the applicant has final approval authority for all construction work performed by the entity and that the applicant has final approval authority on all business matters, including contracts, specifications, checks, drafts, or payments, regardless of the form of payment, made by the entity, except where a financially responsible officer is approved.

          2. The application for financially responsible officer must include an affidavit on a form provided by the board attesting that the applicant's approval is required for all checks, drafts, or payments, regardless of the form of payment, made by the entity and that the applicant has authority to act for the business organization in all financial matters.

          3. The application for secondary qualifying agent must include an affidavit on a form provided by the board attesting that the applicant has authority to supervise all construction work performed by the entity as provided in s. 489.1195(2).

       2. The applicant must furnish evidence of statutory compliance if a fictitious name is used, the provisions of s. 865.09(7) notwithstanding.

       3. A joint venture, including a joint venture composed of qualified business organizations, is itself a separate and distinct organization that must be qualified and obtain a certificate of authority in accordance with board rules.

       4. A certificate of authority must be renewed every 2 years. If there is a change in any information that is required to be stated on the application, the business organization shall, within 45 days after such change occurs, mail the correct information to the department.

          
          

12. Petitioner proved by clear and convincing evidence that Respondent failed to comply with the provisions of Section 489.119(2), Florida Statutes, as alleged in Count I of the Administrative Complaint.

13. Section 489.129, Florida Statutes, pertaining to disciplinary proceedings, provides, in part, as follows:

    1. The board may take any of the following actions against any certificateholder or registrant: place on probation or reprimand the licensee, revoke, suspend, or deny the issuance or renewal of the certificate, registration, or certificate of authority, require financial restitution to a consumer for financial harm directly related to a violation of a provision of this part, impose an administrative fine not to exceed $5,000 per

       violation, require continuing education, or assess costs associated with investigation and prosecution, if the contractor, financially responsible officer, or business organization for which the contractor is a primary qualifying agent, a financially responsible officer, or a secondary qualifying agent responsible under s.

       489.1195 is found guilty of any of the following acts:

       
       

       * * *

       
       

       1. Failing in any material respect to comply with the provisions of this part or violating a rule or lawful order of the board.

    
    

14. Respondent's failure to comply with the requirements of Section 489.119(2), Florida Statutes, constitutes a violation of Section 489.129(1)(i), Florida Statutes, as alleged in

    Count I of the Administrative Complaint.

    
    

15. Petitioner failed to prove the factual allegations of Counts II and III.

16. Petitioner has enacted penalty guidelines pertinent to this proceeding in Chapter 61G4-17, Florida Administrative Code.

17. Rule 61G4-17.003(1), Florida Administrative Code, defines repeat violations as follows:

    (1) As used in this rule, a repeat violation is any violation on which disciplinary action is being taken where the same licensee had previously had disciplinary action taken against him or received a letter of guidance in a prior case; and said definition is to apply regardless of whether the violations in the present and prior disciplinary actions are

    of the same or different subsections of the disciplinary statutes.

    
    

18. Rule 61G4-17.001(10)(i), Florida Administrative Code, provides the following guideline for a violation of Section 489.119, Florida Statutes, where the violation is a repeat violation: Administrative fine in the amount $500 to $1,000 and suspension or revocation of licensure.

19. No aggravating or mitigating factors are present in this proceeding other than the fact that Respondent has been previously disciplined. That factor has been considered in the penalty guideline set forth in Rule 61G4-17.001(10)(i), Florida Administrative Code.

20. The recommendation that follows does not recommend the assessment of investigative costs against Respondent because those costs were not established for each count of the

Administrative Complaint.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner enter a final order that adopts the Findings of Fact and Conclusions of Law contained in the Recommended Order. It is further recommended that for the violation found for Count I, Respondent be assessed an administrative fine in the amount of $500.00 and that his license be suspended until such times he pays the administrative

fine and complies with the requirements of Section 489.119, Florida Statutes. It is further recommended that Counts II and III of the Administrative Complaint be dismissed.

DONE AND ENTERED this 17th day of June, 2002, in Tallahassee, Leon County, Florida.

CLAUDE B. ARRINGTON

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 www.doah.state.fl.us

Filed with the Clerk of the Division of Administrative Hearings this 17th day of June, 2002.

ENDNOTE

1/ The City of Miramar does not require a contractor to be personally present when he or she applies for a building permit. The City of Miramar is satisfied if the person applying for the permit presents a notarized statement from a contractor that the contractor is responsible for the permit. Respondent testified, credibly, that neither he nor his company was involved in any manner with the pulling of the permit for the Schneider job.

Respondent also testified, credibly, that neither he nor his company performed the work at the Schneider residence.

Petitioner did not present the application for the permit nor did it present a notarized statement from Respondent or his company that would have been required by the City of Miramar. Petitioner failed to prove the factual allegations pertaining to Counts II and III by clear and convincing evidence.

COPIES FURNISHED:

Brian A. Higgins, Esquire Department of Business and

Professional Regulation 1940 North Monroe Street

Tallahassee, Florida 32399-2202

Michael J. Morrow 1902 South Roma Way

Boynton Beach, Florida 33426

Robert Crabill, Executive Director Construction Industry Licensing Board Department of Business and

Professional Regulation 1940 North Monroe Street

Tallahassee, Florida 32399-0792

Hardy L. Roberts, III, General Counsel Department of Business and

Professional Regulation 1940 North Monroe Street

Tallahassee, Florida 32399-2202

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.

1 The City of Miramar does not require a contractor to be personally present when he or she applies for a building permit. The City of Miramar is satisfied if the applicant presents a notarized statement from the contractor responsible for the permit. Respondent testified, credibly, that neither he nor his company was involved in any manner with the pulling of the permit for the Schneider job. Respondent also testified, credibly, that neither he nor his company performed the work at the Schneider residence. Petitioner did not present the application for the permit nor did it present a notarized statement from Respondent or his company that would have been required by the City of Miramar. Petitioner failed to prove the factual allegations pertaining to Counts II and III by clear and convincing evidence.

Docket for Case No: 02-000888PL

Orders for Case No: 02-000888PL