STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

JOE NEUBAUER, )

)

Petitioner, )

)

vs. )

) CONSTRUCTION INDUSTRY LICENSING ) BOARD, )

)

Respondent. )

Case No. 06-3644

)

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 January 5, 2007, by video teleconference with sites in West Palm Beach and in Tallahassee, Florida.

APPEARANCES

For Petitioner: William G. Shofstall, Jr., Esquire

The Law Office of William G. Shofstall Post Office Box 210576

West Palm Beach, Florida 33421

For Respondent: Claudel Pressa, Esquire

Office of the Attorney General The Capitol, Plaza 01 Tallahassee, Florida 32399

STATEMENT OF THE ISSUE

The issue presented is whether Petitioner's application to qualify an additional business entity should be granted.

PRELIMINARY STATEMENT

By Notice of Intent to Deny issued August 11, 2006, the Construction Industry Licensing Board advised Petitioner that his application to qualify an additional business entity was denied, and Petitioner timely requested an administrative hearing regarding that preliminary determination. This cause was thereafter transferred to the Division of Administrative Hearings to conduct the evidentiary proceeding.

Petitioner testified on his own behalf. Additionally, Joint Exhibit numbered 1 and Respondent's Exhibits numbered 1-3 were admitted in evidence. A transcript of the final hearing was not provided.

Both parties submitted proposed recommended orders after the conclusion of the final hearing. Those documents have been considered in the entry of this Recommended Order.

FINDINGS OF FACT

1. Petitioner Joe Neubauer started working in construction in 1962. He was employed by his father, who was a general contractor, and learned both the residential and the commercial construction business from him.

2. In the early 1970s Petitioner began working on his own doing re-modeling work. He worked for owner/builders and did not need a contractor's license.

3. In 1983 he achieved licensure in Florida as a state- certified general contractor. From 1983 to 2004, he worked under the business name of Joe Neubauer General Contractor. During that time period (and prior to his licensure) he bid on jobs, applied for permits, supervised sub-contractors, dealt with inspectors and inspections and physically performed work himself from the beginning to the end of the project.

4. In 2004 he suffered a back injury while driving a race car. Since he was unable to work at that time, he placed his license in an inactive status.

5. He subsequently recovered from his back injury and is not physically limited as a result of it.

6. In 2005 he and his wife formed Florida Builders LLC.

   
   

   He wanted to activate his state license and needed to incorporate to get his license back. His license was activated.

7. The intended and primary business purpose of Florida Builders LLC has been the sale and installation of hurricane shutters. Florida Builders has done no other work except for the installation of a roof.

8. Prior to April 2006, Petitioner had discussions with Jose Barajas, the president and majority stockholder of Precision Drywall, Inc. He had known Barajas and

   Michael Schiavone, Precision's qualifier, for 20 years as business associates and as friends. When Schiavone died,

   Barajas contacted Petitioner seeking to have Petitioner become the qualifier for Precision. During and as a result of those discussions, Petitioner met many of Precision's employees, became familiar with Precision's finances and contracts, and visited some of Precision's job sites.

9. Precision is a large company, specializing in the installation of drywall. Although installing drywall does not require supervision by a state-certified general contractor, Precision's large commercial projects frequently require bonding, and having a state-certified general contractor overseeing Precision's construction activities would be important in obtaining bonds. In addition, having a state- certified general contractor overseeing Precision's construction activities would allow Precision to expand its activities beyond the installation of drywall. Thus, there were advantages to Precision from hiring Petitioner.

10. There were also advantages to Petitioner from becoming Precision's qualifier. Since the hurricane shutter business was not doing well, Petitioner in effect had no job or income. He no longer wanted to perform construction activities as a hands- on worker, but he had very much enjoyed running his own construction company and wanted to again become involved in the industry in a position of responsibility. Accordingly,

    Petitioner and Barajas agreed that Petitioner would become Precision's qualifier.

11. Since Petitioner was not making a living in the hurricane shutter business, and since Precision wanted him to be its qualifier, it was agreed that Precision would pay Petitioner

    $1,000 a week while he was obtaining approval to be Precision's qualifier, with the amount of salary to be adjusted after Petitioner began his full-time employment with Precision.

12. In April 2006 Petitioner filed his application to qualify Precision Drywall, Inc., as an additional business entity under his state-certified contractor's license. In July 2006 he appeared before the Additional Business Committee of the Construction Industry Licensing Board.

13. The Committee determined that Petitioner did not intend to carry out his responsibilities for the construction activities of Precision Drywall, Inc., and that he intended to "broker" his license.

14. It is clear from Petitioner's testimony under oath at the final hearing in this cause that he does intend to work full-time at Precision, carrying out his responsibilities for the construction activities of that company. In fact, he testified that he was willing to alleviate any concern the Board

    might have by resigning as the qualifier for Florida Builders, LLC, after which his wife could still sell hurricane shutters under that corporate name but could no longer install them.

15. A review of the transcript of Petitioner's appearance before the Committee reveals, as Petitioner testified in the final hearing, that he was nervous and made jokes to overcome that nervousness at the meeting. The transcript does not reflect that Petitioner (or his wife, who answered many of the questions asked by Committee members) was under oath or understood the time-frame being questioned. Similarly, Petitioner's testimony in his deposition appears to confuse, as did some of the questions asked, the time periods when he was working full-time as a general contractor and the recent time period when he was simply selling and installing hurricane shutters when he was lucky enough to have some purchasers. When questioned at the final hearing in a chronological sequence, Petitioner's description of his activities through different time periods makes it clear that he is not gainfully employed and wishes to be and that being the qualifier for Precision Drywall gives Petitioner the opportunity to be employed in a position where he is responsible for the construction activities of a company rather than being a laborer during this phase of his life.

16. Petitioner has 44 years of experience in all phases of construction. He has the qualifications required for state licensure, has been so licensed for over 20 years, and has only had one complaint filed against him during that time, which resulted in a reprimand and a $500 fine. He is willing to resign as the qualifier for Florida Builders LLC in order to work full-time for Precision Drywall, Inc. There is no basis for denying Petitioner's application to qualify Precision Drywall but for the Committee's concern that he could not work full-time for two different companies. It is clear that Petitioner has no such intent to do so--only to work full-time for Precision Drywall, supervising its construction activities.

    CONCLUSIONS OF LAW

    
    

17. The Division of Administrative Hearings has jurisdiction over the subject matter hereof and the parties hereto. §§ 120.569 and 120.57(1), Fla. Stat.

18. Petitioner has the burden of proving that he is entitled to have his application granted. Florida Dept. of

    Transportation v. J. W. C. Co., 396 So. 2d 778 (Fla. 1st DCA 1981). Petitioner has met his burden, not only by the required preponderance of the evidence, but by clear and convincing evidence.

19. Section 489.105(4), Florida Statutes, defines a primary qualifying agent as someone who:

    possesses the requisite skill, knowledge, and experience, and has the responsibility, to supervise, direct, manage, and control the contracting activities of the business organization with which he or she is connected; who has the responsibility to supervise, direct, manage, and control construction activities on a job for which he or she has obtained the building permit; and whose technical and personal qualifications have been determined by investigation and examination as provided in this part, as attested by the department.

    
    

    Petitioner clearly has the requisite skill, knowledge, and experience to carry out his duties as the qualifying agent for Precision Drywall's construction activities by virtue of his performing those activities for over 40 years and by virtue of his state-certified general contractor's license.

20. Section 489.1195(1), Florida Statutes, provides that a business entity may designate a financially responsible party, such as Precision's owner, who is a different person than the one responsible for all construction activities of the business organization, such as Petitioner. The evidence in this cause reveals that Petitioner's arrangement with Precision complies with this statutory provision, that Petitioner would be employed full-time by Precision to supervise all of Precision's construction activities, and that Petitioner is fully qualified to do so.

21. Petitioner's application to qualify Precision as an additional business entity should be granted. It is apparent

that if Petitioner resigned as the qualifier of Florida Builders LLC, Precision Drywall would no longer be an "additional" business entity, and Petitioner is well qualified to be its qualifying agent. Since Florida Builders is, in effect, not doing any business, as revealed by Petitioner's application and his testimony, it should not be necessary for him to resign.

RECOMMENDATION

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

RECOMMENDED that a final order be entered approving Petitioner's application to qualify Precision Drywall, Inc., as an additional business entity whether or not he resigns as the qualifier for Florida Builders LLC.

DONE AND ENTERED this 1st day of February, 2007, in Tallahassee, Leon County, Florida.

S

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 www.doah.state.fl.us

Filed with the Clerk of the Division of Administrative Hearings this 1st day of February, 2007.

COPIES FURNISHED:

G. W. Harrell, Executive Director Construction Industry Licensing Board Department of Business and

Professional Regulation Northwood Centre

1940 North Monroe Street Tallahassee, Florida 32399-0792

Josefina Tamayo, General Counsel Department of Business and

Professional Regulation Northwood Centre

1940 North Monroe Street Tallahassee, Florida 32399-0792

Claudel Pressa, Esquire

Office of the Attorney General The Capitol, Plaza 01 Tallahassee, Florida 32399

William G. Shofstall, Jr., Esquire The Law Office of William G. Shofstall Post Office Box 210576

West Palm Beach, Florida 33421

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: 06-003644

Orders for Case No: 06-003644