The Issue The issue presented is whether Respondent committed the offenses alleged in the administrative complaint, and, if so, what penalty should be imposed.
Findings Of Fact At all times material hereto, Respondent, John Arena, was a certified residential contractor, the qualifying agent for Classic Industries, Inc. and held license number CR C021139 from the Florida Construction Industry Licensing Board. The President and sole owner of Classic was Anthony Manganelli. Mr. Manganelli was also the manager of Classic and the principal from whom Mr. Arena received his information about the contracts entered into by Classic. On or about July 30, 1988, someone contacted Ms. Solange Gaston of Hollywood, Florida, by telephone, and asked her if her roof needed repair. The solicitor represented himself as an associate of Classic and offered to come out and inspect her roof. Ms. Gaston, believing her roof was in disrepair, agreed to have the inspection completed and entered into a contract with Mr. Carlo Mangano, representing himself as an agent of Classic, to do the repair. With Ms. Gaston's agreement, the tile on her roof was replaced with shingle roofing and certain other repairs were attempted. A letter to Petitioner from the Chief Permit Processor of the City of Hollywood, Florida indicates that no roofing permit was issued for Ms. Gaston's address. The roof was leaking prior to the repair and continues to leak. Ms. Gaston paid the complete contract price of $3,500 to Classic, but has been unable to locate Mr. Mangano or to have her roof repair completed. In her attempts to achieve satisfaction, Ms. Gaston contacted Classic and asked to speak with someone in charge. She was under the impression that she was speaking with Mr. Arena; however, she never spoke to Mr. Arena. In fact, Mr. Arena was not aware of the contract with Ms. Gaston until the instant complaint was filed against him. Mr. Arena does not know Mr. Mangano. When Mr. Arena became aware of the problem, he attempted to contact Mr. Manganelli, but was told that Mr. Manganelli had moved. Ultimately, Mr. Arena located Mr. Manganelli at a new address. According to Mr. Arena, Mr. Manganelli produced a copy of what appeared to be a contract with Ms. Gaston which has the signature of Carlo Mangano on it, but it is marked indicating that Ms. Gaston's credit was turned down. Mr. Manganelli told Mr. Arena that Classic had not undertaken the job due to the refusal of credit. With that representation, Mr. Arena was under the impression that the work had not been done, as was the custom of dealing for Classic when credit was denied. The two papers purporting to be contracts, one which Ms. Gaston acknowledged as being the one which she signed and the other being the one which Mr. Arena obtained from Mr. Manganelli as the actual contract between Ms. Gaston and Classic through Mr. Mangano, appear to be altered. Although both documents contain the same information, including the date, parties, addresses, work to be completed and price quoted, the portion of the copy indicating the price is written in Arabic numerals on Mr. Arena's copy and by words on Ms. Gaston's copy. Mr. Arena's copy also has the indication that credit was turned down on it, although the cancelled checks paid to Classic by Ms. Gaston were received into evidence. It was Mr. Arena's arrangement with Mr. Manganelli that Mr. Arena was to be informed of every contract into which Classic entered. In this way, Mr. Arena knew which sites he was to supervise. Since he was not advised about the roofing job for Ms. Gaston, he made no attempt to supervise it and after he became aware that the credit for the job had been disallowed, he was under the reasonable impression that the job was not done by Classic. Further, he did not know Mr. Mangano, nor did he believe that Mr. Mangano had the authority to bind Classic. Mr. Arena believes that Mr. Mangano may have obtained a blank contract form of Classic and misrepresented himself to Ms. Gaston as an agent for Classic. Petitioner asserted, however, that Mr. Arena, nevertheless, was responsible for the job and that Classic did perform the job. Neither Mr. Manganelli nor Mr. Mangano were present or testified at the hearing. Given Mr. Arena's demeanor at the hearing and the conflicting and altered state of the alleged contract forms, Mr. Arena's testimony is deemed credible, and the proof failed to demonstrate clearly that Classic actually attempted to repair Ms. Gaston's roof or that Mr. Arena was responsible for the attempted repair.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is: RECOMMENDED that the Florida Construction Industry Licensing Board issue a Final Order dismissing the administrative complaint filed in this case against Respondent, John Arena. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 20th day of June, 1990. J. LAWRENCE JOHNSTON Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 20th day of June, 1990. COPIES FURNISHED: Robert G. Harris Department of Professional Regulation 1940 North Monroe Street Suite 341 Tallahassee, Florida 32399-0792 John D. Arena 5961 Southwest 13th Street Plantation, Florida 33317 Fred Seely Executive Director Department of Professional Regulation Construction Industry Licensing Post Office Box 2 Jacksonville, Florida 32201 Kenneth D. Easley General Counsel Department of Professional Regulation 1940 North Monroe Street Suite 60 Tallahassee, Florida 32399-0792 =================================================================
The Issue The Florida Construction Industry Licensing Board, Petitioner herein, seeks to revoke the general contractor's license of Roy G. Runken, Respondent herein, based on allegations set forth in specific detail hereinafter, that he (Respondent) engaged in acts and/or conduct violative of the Code of Metropolitan Dade County, Chapter 10, Sections 10-22(a)(g), which amount to specific violations of Chapter 468.112(2)(a) and (e). Based on the entire record compiled herein including the demeanor of the witnesses while testifying, I make the following:
Findings Of Fact Roy G. Runken (Respondent) holds certified general contractor's license no. CGC002558 which is presently current and inactive. On September 21, 1973, Respondent, d/b/a Triple "R" Construction entered into a contract with Mrs. Lydia E. Walker to build a funeral home at 11000 SW 216th Street, Goulds, Florida. Mrs. Walker applied for and secured a construction mortgage loan from the First National Bank of Homestead, Florida, in the amount of $105,000. She additionally deposited $7,000 of her funds into the construction draw account of which approximately $103,701.55 was withdrawn either by Respondent or by the bank to satisfy bills which were paid directly to suppliers by the bank. When construction was completed, the entire funds available in the construction draw account were exhausted plus an additional $600. which was paid by the owner (Mrs. Walker). (Testimony of Shirley Pluto, Vice President and senior loan officer of First National Bank of Homestead) Mrs. Walker testified and indicated that she met Respondent through one of his former employees who had served as a building code inspector. She testified that she entered the construction agreement with Respondent because she was desirous of obtaining quality construction work and Respondent enjoyed a good reputation in the community as a quality builder. The proposal submitted to the bank by Respondent and Mrs. Walker contained an agreed upon contract price of $114,500. A later executed agreement contained an amount of $72,980. (See Petitioner's Exhibits 4 and 5). Sometime during May, 1974, Respondent advised Mrs. Walker that his National Guard company was being reactivated and that he was leaving the area. Fred Runken, Respondent's son, took over the project and Respondent advised Mrs. Walker that his son (Fred) was as qualified as he. (Testimony of Mrs. Walker). She learned approximately one year later that Respondent's son was not "qualified". During the course of the construction, Mrs. Walker voiced numerous complaints concerning the quality and progress of the construction. (See Petitioner's Composite Exhibit 7). As an aside, it was noted that Mrs. Walker received a judgement from Respondent in the amount of $25,000 plus costs. (See Petitioner's Exhibit 8). During April, 1974, Respondent was issued a permit to construct the funeral home for Mrs. Walker. On May 6, 1974, the foundation was poured without incident. During July, 1974, the Dade County Area encountered a steel strike which created a problem for Respondent in obtaining "bar joists". During the construction of the funeral home, Respondent's son served as job foreman under the supervision of two licensed certified general contractors (Messrs. Benton and Habday [phonetic]). The evidence reveals that the plan as submitted by Mrs. Walker had to be modified in several aspects including joist beams, store front plans, all of which had to be revised by an architect. Respondent expressed difficulties with Mrs. Walker respecting allowances and selections and that when selections were made by Mrs. Walker, she failed to diligently pursue which in some instances resulted in price increases. He further testified to changes in brick work, cabinetry and the air conditioning systems. Additionally, the evidence reveals that all liens and/or notice of intent to file liens were satisfied. As best a can be determined by the record herein, it appears that Mrs. Walker only paid an additional $600 over and above the agreed upon price which in terms of the changes submitted to Respondent, would appear to be minimal. Moreover, it is uncontroverted that the contractor was forced from the building before construction was completed and that all draws were made per agreement with Mrs. Walker and the bank. Finally, there was no testimony or evidence of any municipal code violations. 1/ Based on the foregoing, I shall conclude and recommend that insufficient evidence was offered to establish that the Respondent engaged in any acts and/or conduct violative of Chapter 10 of the Code of Metropolitan Dade County or Chapter 468, Florida Statutes, as alleged.
Recommendation Based on the foregoing findings of fact and conclusions of law, I hereby recommend that the complaint filed herein be dismissed in its entirety. RECOMMENDED this 10th day of February, 1978, in Tallahassee, Florida. JAMES E. BRADWELL Hearing Officer Division of Administrative Hearings 530 Carlton Building Tallahassee, Florida 32304 (904) 488-9675
Findings Of Fact Respondent, Frank D. Gutc, holds registered building contractor license number R80027543 issued by petitioner, Department of Professional Regulation, Florida Construction Industry Licensing Board. When the events herein occurred, Gutc resided in Flagler Beach, Florida where he was engaged in the business of constructing residential homes. Simon and Doris Lutterbach were aware of Gutc's construction activities and approached him concerning the possibility of him building a house. The Lutterbachs had only 50,000 with which to buy a home and they conveyed this information to Gutc. Gutc showed them the plans for a three bedroom house which cost in excess of 550,000, but agreed to "downsize" the house to two bedrooms for a price of 550,000, including the lot. Thereafter, on December 11, 1982, Gutc entered into a contract with the Lutterbachs to construct a two bedroom, two bath home at 16 Prince Patric Lane in Palm Coast, Florida at a cost of 550,000. The parties later agreed that Gutc would enclose the porch for an additional 51,700, or a total contract price of $51,700. The contract called for a closing date of March 1, 1983. After the Lutterbachs gave an initial down payment of $10,000 to Gutc, Gutc obtained a $37,500 construction loan from Stockton Whatley Davin & Company. He later received an additional $1,314 from the Lutterbachs for minor changes in the plans. Construction commenced in early January, 1983, but the house was not completed by March 1. The closing date was accordingly reset to April 26, 1983. However, by that date a number of suppliers and subcontractors had filed liens totaling $28,005.37 on the house. The liens were filed even though Gutc had drawn the full amount of the construction loan from the lending institution, and had received almost $11,400 in cash from the Lutterbachs. The Lutterbachs were unable to pay off the additional liens incurred by Gutc and were consequently unable to close on the house. They have never been reimbursed the $11,314 which they advanced to Gutc to construct the home. Since that time Gutc's financial condition has deteriorated, and he has been forced to file for bankruptcy. An expert witness retained by petitioner established that the house constructed by Gutc was substantially underpriced, and that a competent contractor would have charged at least $53,800 for the house itself, exclusive of the cost of land. It was also established that a competent contractor normally prepares an itemized cost sheet whereby all costs are broken out in detail. By doing this, and using sound financial management procedures, a contractor could avoid the predicament which befell Gutc on this project. Gutc himself acknowledged that he should have asked around $70,000 for the house instead of $50,000, that he never priced out construction costs on any of his projects including the Lutterbach project, and did not know if he had made a profit on a job until the proceeds were distributed at closing. Further, he had no one keeping his books, kept no financial records, and did not seek competitive bids on his jobs. In short, while Gutc's on-site competency is not questioned, his planning and financial practices are in contravention of competency standards for the construction industry.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that respondent be found guilty of violating Subsection 489.129(1)(m), Florida Statutes, as set forth in Count III of the administrative complaint. All other charges should be dismissed. It is further RECOMMENDED that respondent pay a $1,500 administrative fine, that his registered general contractor's license be suspended for two years, and that reinstatement of said license thereafter be conditioned on respondent demonstrating that he has received adequate training or study in cost estimating and in the financial management of a construction business. DONE and ORDERED this 25th day of January, 1985, in Tallahassee, Florida. DONALD R. ALEXANDER Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 25th day of January, 1981. COPIES FURNISHED: Douglas A. Shropshire, Esquire 130 North Monroe Street Tallahassee, Florida 32301 Frank D. Gutc P.O. Box 1658 Flagler Beach, Florida 32036
Findings Of Fact The parties stipulated to the fact that James Baskin holds registered contractor's license number BC 0011300. Raskin's registered general contractor's license was issued by the Florida Construction Industry Licensing Board. Prior to the commencement of the hearing, the Hearing Officer held that the record of the proceedings for the Cape Coral Board could be filed as a late filed exhibit in this cause in order that the Florida Construction Industry Licensing Board could review the Cape Coral Board's action pursuant to its authority under Section 468.112(2)(f), Florida Statutes. Ambassador Homes contracted with Sam and Marie Franzella for the construction of a single family residence to be constructed on the property located on Lots 41-42, Block 1224, Cape Coral Unit 19, Section 32-33, Township 44 South, Range 24 East. Stucky Well Drilling was initially contacted by an unknown agent of Ambassador Homes on January 1, 1975, and directed to drill a well, and install a deep well jet pump and tank at the location stated above. On January 20, 1975, Marion, a secretary for Ambassador Homes, called Stucky Well Drilling and directed that Stucky Well Drilling install the well and equipment as soon as possible. On January 21, 1975, a 210 foot well was drilled on the property described above and on January 23, 1975, a Mr. Green from Ambassador Homes called and requested that the tank and equipment be installed immediately. Mr. Hall, an employee of Stucky Well Drilling, installed all the equipment as ordered on January 23, 1975. On January 24, 1975, a bill in the amount of Six Fifty Dollars ($650.00) was sent to Ambassador Homes for the work performed on the property described above. Ambassador Homes was a corporation engaging in residential contracting and operating under the license of James Raskin. Ambassador Homes did not pay Stucky Well Drilling the bill for the drilling of the well and installation of the equipment on the property described in paragraph 3 above. Subsequently Stucky Well Drilling brought suit against Ambassador Homes, Inc., in the County Court of Lee County and obtained final judgment in the amount of Six Hundred Fifty Dollars ($650.00) plus costs. This judgment was entered on December 2, 1975.
Recommendation Based on the foregoing findings of fact and conclusions of law, the Hearing Officer recommends that the Florida Construction Industry Licensing Board suspend the license of James Raskin as a registered general contractor until he presents satisfactory proof to the Board of his financial qualifications to engage in the contracting business. DONE and ORDERED this 27th day of May, 1977, in Tallahassee, Florida. STEPHEN F. DEAN Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Barry Sinoff, Esquire 1010 Blacks tone Building Jacksonville, Florida 32202 James Raskin 1810 S. E. 44th Street Cape Coral, Florida 33904 Mr. J. K. Linnan Executive Director Florida Construction Industry Licensing Board Post Office Box 8621 Jacksonville, Florida 32211
Findings Of Fact On February 27, 1974, Pelle J. Lindquist contracted with Patrick G. Yeager to build a house on Concord Road in Ormond Beach, Florida. This contract was admitted in evidence as petitioner's Exhibit No. 1. The contract called for work to begin on March 1, 1974, and to be completed within 90 days. Work did not begin on March 1, 1974, but did begin in the latter half of March, 1974. Frequent rain in March, 1974, caused the roof to warp, so that it had to be replaced. After considerable delay in undertaking the repair, actually replacing the roof took only about a week. Replacing the roof added significantly to respondent's costs in performing under the contract. Eleven months after construction began, Mr. Yeager moved in. Because the kitchen and both bathrooms lacked wallpaper, and because the gravel yard was partly unfinished, respondent Lindquist paid Mr. Yeager $300.00, in exchange for which Mr. Yeager released Mr. Lindquist from all liability in connection with the house. The release was admitted in evidence as respondent's Exhibit No. 1. In the course of construction, Haven Vaughn, a sub- contracting carpenter, filed a notice of intent to lien on behalf of himself and his partner, Cal Fisher. As long as Mr. Lindquist was allowed draws on the construction loan, Messrs. Vaughn and Fisher were paid regularly. For reasons which were not developed in the evidence, the lender withheld part of the loan proceeds from respondent. When the draws stopped, the carpenters were not paid, and they stopped work on the Yeager house. The lender ultimately paid the carpenters in full. At the time Mr. Yeager contracted with Mr. Lindquist for the house, Mr. Lindquist entered into a separate agreement with Mr. Cameron, a real estate broker who introduced Mr. Lindquist to Mr. Yeager. Under the latter agreement, Mr. Lindquist was to pay Cameron Realty Company a brokerage fee upon "obtaining last draw from lending firm." The brokerage fee has not been paid and is currently the subject of civil litigation. On February 15, 1974, Mr. and Mrs. Horace N. Smith, Jr., contracted with respondent for the construction of a house on another lot on Concord Road in Ormond Beach, Florida. This contract was admitted in evidence as petitioner's Exhibit No. 2. The contract called for completion of the Smith house on or about June 15, 1974. After the contract was signed, the Smiths returned to New Jersey, entrusting oversight of the project to Mr. Cameron, a real estate broker who introduced Mr. Lindquist to the Smiths. As construction progressed, Mr. Cameron kept Mrs. Smith advised, and she mailed installment payments on the strength of Mr. Cameron's representations. In this fashion, Mr. Lindquist was paid 75 percent of the total contract price of $27,600.00. For reasons which were not developed in the evidence, the Smiths stopped payments under the contract, presumably at Mr. Cameron's suggestion. When the payments stopped, work on the house also stopped, and, during the ensuing hiatus in construction, vandals broke a glass door, scrawled obscenities on the walls, scraped the walls, damaged the outside doors, and ruined the wooden trim. Work had fallen far behind schedule when, in April of 1975, a lawyer retained by Mr. and Mrs. Smith wrote Mr. Lindquist to the effect that the Smiths would take over the project unless it was finished within a week. When the week had passed, the Smiths began dealing directly with the sub-contractors, the house was eventually completed at a total cost to the Smiths of $29,100.00, or $1,500.00 more than the Smiths had agreed to pay Mr. Lindquist for the job. As completed, the house lacked an electric garage door opener and a sprinkler system which Mrs. Smith guessed would cost $1,000.00, but no competent evidence as to the cost or value of either the door opener or the sprinkler system was adduced. Vandalism added significantly to the cost of the Smith house. Mr. Lindquist replaced a glass door broken by vandals. On account of the vandalism, the Smiths paid the carpenters an additional $300.00 for their labor. The front doors, the trim, and all bays had to be replaced; the cost of replacement materials was not established. At the time Mr. and Mrs. Smith contracted with Mr. Lindquist for the house, Mr. Lindquist entered into a separate agreement with Mr. Cameron. Under the latter agreement, Mr. Lindquist was to pay Cameron Realty Company a brokerage fee. The brokerage fee has not been paid and is currently the subject of civil litigation. Certified general contractors' licenses are renewable annually in June, pursuant to Section 468.108, Florida Statutes (1975). Mr. Lindquist had such a license for 1974-75. In June of 1975, he desired to renew his license, but in a fashion which would authorize him to contract on behalf of a corporation, rather than as an individual. He telephoned the Jacksonville office of the Florida Construction Industry Licensing Board and explained his situation. That office mailed him forms which he filled out and mailed back in June of 1975. In March of 1976, some nine months later, the completed forms were mailed back to respondent, but no license was issued. On March 22, 1976, Mr. Clyde Pirtle, an investigator employed in the Jacksonville office of the Florida construction Industry Licensing Board, filled out and mailed to respondent a Notice of Violation," notifying respondent that he had failed to renew his certificate during June of 1975. The same "Notice of Violation" advised respondent of his putative failure to notify the Florida Construction Industry Licensing Board of his new address, although his application papers for the 1975-76 license had been returned to the new address. On the Monday after the Friday on which respondent received the "Notice of Violation," he telephoned Mr. Pirtle's office and was told that Mr. Pirtle would contact him. On or about June 3, 1976, Mr. Pirtle did contact respondent and meet with him. At this meeting, respondent showed Mr. Pirtle the papers he had mailed to the Board in June of 1975, and which were returned to him unprocessed in March of 1976. Mr. Pirtle told respondent that the papers had been returned because the application forms were for a registered, and not for a certified, contractor's license, and furnished respondent another set of forms. Respondent filled out the new set of forms and mailed them to the Board in June of 1976. A month and a half before the hearing in this cause, respondent received 1976-1977 certified general contractor's license No. CGC007702, which is currently in force. No contractor's license for 1975-76 was ever issued to respondent. On May 3, 1976, respondent applied for and was issued a building permit to erect a new residence at 1623 Anniston Avenue in the City of Holly Hill. At that time, respondent had no current contractor's license and presented to the authorities a license which had expired.
Recommendation Upon consideration of the foregoing, it is RECOMMENDED that disciplinary action against Respondent, if any, be limited to a reprimand. DONE and ENTERED this 6th day of April, 1977, in Tallahassee, Florida. ROBERT T. BENTON Hearing Officer Division of Administrative Hearings Room 530 Carlton Building Tallahassee, Florida 32304 COPIES FURNISHED: Mr. Barry Sinoff, Esquire 1010 Blackstone Building Jacksonville, Florida 32202 Mr. Thomas L. West, Esquire Post Office Box 1857 1030 Volusia Avenue Daytona Beach, Florida 32015 J. K. Linnan, Executive Director Florida Construction Industry Licensing Board Post Office Box 8621 Jacksonville, Florida 32211
The Issue The issues presented in this case concern certain allegations made by the Petitioner against the Respondent through an Administrative Complaint. In particular, it is alleged that on or about April 23, 1980, the Respondent's contractor's license issued by the Petitioner was suspended and subsequent to that time, the Respondent continued to perform contracting services through a company, David H. Hamilton, Inc., a corporation which was not properly qualified by the Petitioner to provide contracting services. It is further alleged by the Petitioner that the Respondent obtained building permits Nos. S2740-80B 1/ and 3214-80B from the Osceola County Building Department with the use of another contractor's license, namely: Louie S. Winchester, license #RR003839. For the reason of these facts, the Petitioner alleges that the Respondent has violated Subsection 489.127(1)(e), Florida Statutes, in that he attempted to use a suspended registration. It is further alleged, based upon the facts as reported in this Issues statement, that the Respondent has violated Subsection 489.129(1)(g), Florida Statutes, by acting in a capacity as a contractor under a certificate of registration not in his name. Finally, it is alleged, based upon the facts as reported hereinabove, that the Respondent has violated Subsection 489.129(1)(j), Florida Statutes, by failing to comply with Subsection 489.119(2), Florida Statutes, by not properly qualifying a corporation under which he performed contracting services.
Findings Of Fact The case presented concerns license disciplinary action by the Petitioner, State of Florida, Department of Professional Regulation, Florida Construction Industry Licensing Board, against the Respondent, David H. Hamilton, who holds a residential contractor's license issued by the Petitioner, #RR0014037. The prosecution of this action is through the offices of the Department of Professional Regulation and the outcome of the matter could lead to the revocation, suspension or other disciplinary action against the Respondent, in keeping with the provisions of Chapter 489, Florida Statutes. This case was presented before the Division of Administrative Hearings following a decision on the part of the Respondent to request a formal hearing pursuant to Subsection 120.57(1), Florida Statutes. The facts reveal that a Final Order of the Florida Construction Industry Licensing Board was issued on April 23, 1980, and this order established disciplinary action against the current license of David H. Hamilton. (A copy of this Final Order may be found as a part of the record in this proceeding and official recognition of that Final Order is made by the Recommended Order process.) This Final Order was entered after review of a Recommended Order of a Division of Administrative Hearings' Hearing Officer. By the terms of the Final Order, Hamilton's license was suspended "until such time as his Lake County Certificate of Competency is reinstated by the Lake County Board of Examiners." This contingency referred to the fact that the Respondent had his Lake County Certificate of Competency Card removed prior to the entry of the April 23, 1980, order of the Construction Industry Licensing Board. On September 2, 1980, at a time when the Respondent's residential contractor's license was under suspension by the State of Florida, the Respondent through a corporation applied to the Osceola County Building Department for a building permit to construct a residence in Osceola County, Florida. This permit number was #2740-80B. The permit was issued on September 4, 1980, and was granted in the name of David Hamilton, Inc., a corporation in which the Respondent was a principal. To obtain the permit in the sense of an effort to meet the requirements that the permit be applied for by a licensed Florida contractor, the Respondent used the registered residential contractor's license of one Louie Stevens Winchester who held license #RR003839 issued by the Florida Construction Industry Licensing Board. On the occasion of the issuance of the permit by Osceola County, Winchester was an officer of David Hamilton, Inc. Through the action of "pulling" this permit and the utilization of the permit in his construction of the residence, the Respondent was acting in the capacity of contractor under Winchester's license and the offices of the corporation, as opposed to the Respondent's suspended license. Prior to the request for permit, neither Hamilton nor Winchester had attempted to properly qualify David Hamilton, Inc., as a contracting corporation with the Florida Construction Industry Licensing Board. In this case, to properly qualify the corporation, it would have entailed the use of Winchester as the qualifying agent, in view of the fact that Winchester still held a valid contractor's license from the Florida Construction Industry Licensing Board. No effort was made to qualify David Hamilton, Inc., in its own right, through the agency of Winchester, until some time shortly beyond December 1, 1980. On October 28, 1980, the Respondent in his individual capacity, that is to say unconnected with his business pursuits as David Hamilton, Inc., went to the Osceola Building Department and applied for the issuance of a building permit for a home remodeling project for a customer of his. The permit in question on this occasion was #3214-80B. That permit was issued on October 29, 1930, and was used by the Respondent in his building project. An official in the Osceola County Building Department had checked with an employee in the Lake County Building Department on the status of Hamilton's rights to be employed as a building contractor in Lake County, Florida, and was informed that Hamilton's status in Lake County was acceptable. Based upon these representations, the Osceola County employee issued the permit discussed in this paragraph to Hamilton. The Osceola County employee also asked that the Lake County employee formally confirm Hamilton's status. The correspondence in response to Osceola County employee, John Pate, Assistant Building Director, as issued by an official in Lake County, one Herb Dudgeon, may be found as Petitioner's Exhibit No. 3. This letter was received by Pate after the permit was issued. That correspondence indicates that Hamilton had been given the privilege of reinstating his Lake County Competence Card, contingent upon "providing bond, insurances, occupational license, etc.," which had not been received by Lake County as of the date of the correspondence. The correspondence goes on to mention that the State, meaning the Florida Construction Industry Licensing Board, was waiting for confirmation of the completion of the contingencies referred to. Subsequent to this correspondence, the Respondent having completed all the necessary steps for reinstatement of the Lake County Competency Card, had his license suspension removed and was reinstated by the Florida Construction Industry Licensing Board, as verified by that body.
Recommendation Based upon a full consideration of the findings of fact and conclusions of law reached herein, it is RECOMMENDED: That the Florida Construction Industry Licensing Board issue a Final Order which absolves the Respondent of any responsibility for a violation of Subsection 489.127(1)(e), Florida Statutes (1980); that finds the Respondent in violation of Subsection 489.129(1)(g), Florida Statutes (1979), and imposes a penalty of a 60-day suspension; and that finds the Respondent in violation of Subsection 489.129(1)(j), Florida Statutes (1979), and imposes a suspension of 60 days to run concurrently with the other suspension in this paragraph of recommendation. 2/ DONE and ENTERED this 13th day of November, 1981, in Tallahassee, Florida. CHARLES C. ADAMS, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 13th day of November, 1981.
