STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

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

)

Petitioner, )

)

vs. )

)

RONALD F. MORGAN, )

)

Respondent. )

Case No. 03-0564PL

)

RECOMMENDED ORDER

On March 28, 2003, a formal administrative hearing in this case was held by videoconference between Tampa and Tallahassee, Florida, before William F. Quattlebaum, Administrative Law Judge, Division of Administrative Hearings.

APPEARANCES

For Petitioner: Patrick L. Butler, Esquire

Department of Business and Professional Regulation

1940 North Monroe Street, Suite 60

Tallahassee, Florida 32399-2202

For Respondent: Ronald F. Morgan, pro se

6230 Interbay Boulevard

Tampa, Florida 33611

STATEMENT OF THE ISSUES

The issues in the case are whether the allegations of the Administrative Complaint are correct, and, if so, what penalty should be imposed.

PRELIMINARY STATEMENT

By Administrative Complaint filed on July 26, 2002, the Department of Professional Regulation (Petitioner) alleged that General Contractor Ronald F. Morgan (Respondent) violated Florida law by allowing an unlicensed person to represent the Respondent in business transactions.

The Respondent disputed the Administrative Complaint and requested a formal hearing. The Petitioner forwarded the request for hearing to the Division of Administrative Hearings, which scheduled and conducted the proceeding.

At the hearing the Petitioner presented the testimony of two witnesses and had exhibits identified as A through I, K, and L admitted into evidence. The Respondent testified on his own behalf. A transcript of the hearing was filed on April 8, 2003. The Petitioner filed a Proposed Recommended Order.

FINDINGS OF FACT

1. The Petitioner is the state agency responsible for regulating licensed contractors in the State of Florida.

2. At all times material to this case, the Respondent was a Florida licensed Certified General Contractor, holding license number CG-C038598.

3. The Respondent owned and operated a construction company identified as "A Giant Commercial Construction Company."

4. At all times material to this case, the Respondent was engaged in a business relationship, the details of which are unclear, with an individual known as Darryl L. Simpson (Simpson).

5. Simpson operated a company called "THSC Holding Company." Simpson's THSC Holding Company did business as "The Home Service Corporation."

6. Simpson, THSC Holding Company, and The Home Service Corporation were not licensed Florida contractors. At all times material to this case, the Respondent was aware that neither Simpson nor his business entities were licensed Florida contractors.

7. The Respondent was apparently not directly involved in the operation, and was not an officer or director of THSC Holding Company or The Home Service Corporation.

8. In January of 1999, Romelia Lopez (Lopez) entered into a contract with THSC Holding Company for demolition of an existing structure and construction of a private residence at 2923 Cornelia Street, Tampa, Florida 33614. The price for the

   work was a total of $65,000, paid-in-full to THSC Holding Company.

9. On February 23, 1999, a demolition permit numbered 183679.001 was obtained from the Hillsborough County Building Department in the name of the Respondent's company and under the Respondent's general contractor license.

10. The Respondent was aware of the Lopez project and performed the demolition work at Simpson's request. He received compensation for the demolition work.

11. On September 3, 1999, a building permit numbered 188012.003 was obtained from the Hillsborough County Building Department in the name of the Respondent's company and under the Respondent's general contractor license for construction of the Lopez residence.

12. Other than the demolition, the only construction work performed at the Lopez site was an improperly dug foundation that could not pass inspection. The Respondent asserts that he did not dig the foundation at the Lopez site.

13. By September 24, 1999, all work at the Lopez site had ceased.

14. After learning that the job had been abandoned, the Respondent attempted to contract with a subcontractor to complete the construction, but was directed by the Lopez family not to proceed with any additional work.

15. Romelia Lopez has received reimbursement of the

    
    

    $65,000 she paid, apparently from Simpson. The Respondent did not participate in reimbursing Lopez.

16. On May 17, 2000, the Hillsborough County Building Board of Adjustment, Appeals, and Examiners determined that the Respondent had violated Section 108.6.1(11), Ordinance 98-2, Hillsborough County Code, for conspiring with an unlicensed contractor and abandoning a construction project. The Board suspended the Respondent's permitting privileges for five years. The Respondent appealed the Board's action to the Tampa City Council where the appeal was denied.

    CONCLUSIONS OF LAW

    
    

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

18. In order to prevail, the Respondent must establish the allegations allegedly supporting the revocation of licensure by clear and convincing evidence. Ferris v. Turlington, 510 So. 2d

    292 (Fla. 1987). In this case, the burden has been met.

    
    

19. The Administrative Complaint charges the Respondent with violations of Section 489.129(1)(d), (e), and (h), Florida Statutes. In relevant part, Section 489.129(1), Florida Statutes, provides as follows:

    489.129 Disciplinary proceedings.--

    (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. Performing any act which assists a person or entity in engaging in the prohibited uncertified and unregistered practice of contracting, if the certificateholder 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 or her certificate, registration, or certificate of authority to be used by the uncertified or unregistered person with intent to evade the provisions of this part. When a certificateholder or registrant allows his or her 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.

    * * *

    
    

    (h) Being disciplined by any municipality or county for an act or violation of this part.

    
    

20. The evidence establishes that the Respondent violated Section 489.129(1)(d), Florida Statutes, by assisting an unlicensed person (Simpson) in obtaining a demolition permit and a building permit for the Lopez project. The Respondent was aware that Simpson was unlicensed. The Respondent was compensated for, and performed, the demolition of the existing Lopez house.

21. The evidence establishes that the Respondent violated Section 489.129(1)(e), Florida Statutes, by combining and conspiring with an unlicensed person to allow Simpson and THSC Holding Company to use the Respondent's certification to obtain permits for the demolition of the existing Lopez house and construction of the new structure. The Respondent had no active participation in the operations, management, or control of the THSC Holding Company, which, by statute, establishes a prima

    facie intent to evade the provisions of the cited Statute.

    
    

22. The evidence establishes that the Respondent violated Section 489.129(1)(h), Florida Statutes, by being disciplined by the Hillsborough County Building Board of Adjustments, Appeals and Examiners for the activities set forth herein.

23. Rule 61G4-17.001, Florida Administrative Code, sets forth guidelines for penalties imposed for violations of applicable statutes. The Rule provides for fines from $500 to

    $2,500 for each violation of Section 489.129(1)(d) and (e), Florida Statutes. The Rule provides that, for a violation of a municipal code provision as referenced in Section 489.129(1)(h), Florida Statutes, the penalty imposed is based on that which would be applied for the violation of state law most closely resembling the act underlying the local discipline. Review of the local regulatory board's action indicates that the violations are those set forth in Section 489.129(1)(d) and (e), Florida Statutes, previously cited herein.

24. Rule 61G4-17.001(20), Florida Administrative Code, also provides that the penalty can include the costs of investigation and prosecution of the case in addition to previously identified penalties without a demonstration of aggravating factors. The Petitioner has identified such costs as $654.49.

25. The Proposed Recommended Order filed in this case seeks to impose a total penalty of $3,000, in addition to the Petitioner's costs of investigation and prosecution.

RECOMMENDATION

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

RECOMMENDED that the Department of Professional Regulation, Construction Industry Licensing Board, enter a Final Order finding the Respondent guilty of violating

Section 489.129(1)(d), (e), and (h), Florida Statutes, imposing a fine of $3,000 and assessing costs of $654.49.

DONE AND ENTERED this 19th day of May, 2003, in Tallahassee, Leon County, Florida.

WILLIAM F. QUATTLEBAUM

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 19th day of May, 2003.

COPIES FURNISHED:

Patrick L. Butler, Esquire Department of Business and Professional Regulation

1940 North Monroe Street, Suite 60

Tallahassee, Florida 32399-2202

Ronald F. Morgan

6230 Interbay Boulevard

Tampa, Florida 33611

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.

Docket for Case No: 03-000564PL

Orders for Case No: 03-000564PL