97-001435 Construction Industry Licensing Board vs. Arthur Signore Status: Closed Recommended Order on Tuesday, January 13, 1998.

Summary: Licensee knew or should have known that he was assisting an unlicensed person to practice contracting; licensee made a fraudulent or misleading representation on a building permit application; dismiss 2 of the 3 administrative complaints; revocation.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF BUSINESS AND )

PROFESSIONAL REGULATION , )

CONSTRUCTION INDUSTRY LICENSING )

BOARD , )

)

Petitioner , ) Case Nos. 97-1435

) 97-1436

vs. ) 97-2998

)

ARTHUR SIGNORE , )

)

Respondent. )

________________________________)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was held in this case

on September 2, 1997, at Miami Florida, before Errol H. Powell, a

duly designated Administrative Law Judge of the Division of

Administrative Hearings.

APPEARANCES

For Petitioner : Theodore R. Gay, Esquire

Department of Business and

Professional Regulation

401 Northwest 2nd Avenue, Suite N-607

Miami, Florida 33128

For Respondent : Sean J. Green, Esquire

Benjamin R. Jacobi, Esquire

1313 Northeast 125th Street

North Miami, Florida 33161

STATEMENT OF THE ISSUES

The issue for determination is whether Arthur Signore

committed the offenses set forth in the administrative complaints

and, if so, what action should be taken.

PRELIMINARY STATEMENT

On November 26, 1996, the Department of Business and

Professional Regulation, Construction Industry Licensing Board

(Petitioner) filed two two-count administrative complaints

against Arthur Signore (Respondent). The Petitioner charged

Respondent in each administrative complaint with the following :

Count I--with violating Subsection 489.129(1)(e), Florida

Statutes (1993), by 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; and Count II--with violating

Subsection 489.129(1)(c), Florida Statutes (1993), by violating

any provision of Chapter 455, Florida Statutes, through the

making of misleading, deceptive, untrue, or fraudulent

representations in the practice of his profession in violation of

Subsection 455.227(1)(a), Florida Statutes (1993). By Election

of Rights, Respondent disputed the allegations of fact and

requested a formal hearing. On March 21, 1997, these matters

were referred to the Division of Administrative Hearings (DOAH)

and assigned Case Nos. 97-1435 and 97-1436.

By Order dated April 21, 1997, the two cases were

consolidated. The two cases were scheduled for formal hearing.

Subsequently, the hearing was continued predicated on the filing

of an additional administrative complaint by the Petitioner

against Respondent.

On May 30, 1997, the Petitioner filed a three-count

administrative complaint against Respondent. The Petitioner

charged Respondent with the following: Count I--with violating

Subsection 489.129(1)(e), Florida Statutes (1995), by 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; Count II--with violating Subsection 489.1265(3),

Florida Statutes (1995), by obtaining a building permit for

construction work without having entered into a contract to make

improvements to, or perform the contracting at, the real property

specified in the permit, and with violating Subsection

489.129(1)(j), Florida Statutes (1995), by failing in any

material respect to comply with the provisions of Part I of

Chapter 489, Florida Statutes, or violating a rule or lawful

order of the Petitioner; and Count III--with violating Subsection

489.129(1)(c), Florida Statutes (1995), by violating any

provision of Chapter 455, Florida Statutes. On June 24, 1997,

Respondent forwarded an answer to the administrative complaint

denying the alleged violations. On July 2, 1997, this matter was

referred to DOAH and assigned Case No. 97-2998.

By Order dated July 10, 1997, the three cases were

consolidated. The cases were scheduled for formal hearing.

At hearing, the Petitioner presented the testimony of six

witnesses and entered eighteen exhibits into evidence.

Respondent testified in his own behalf, presented the testimony

of one witness and entered three exhibits into evidence.

A transcript of the hearing was ordered. At the request of

the parties, the time for filing post-hearing submissions was set

for more than ten days following the filing of the transcript.

The parties filed post-hearing submissions which have been duly

considered.

FINDINGS OF FACT

1. At all times material hereto, Arthur Signore

(Respondent) was licensed by the Department of Business and

Professional Regulation, Construction Industry Licensing Board

(Petitioner) as a certified general contractor. He received his

license in 1969, qualifying Deluccia Construction. Respondent

was issued license number CG CA01004.

2. Subsequently, in 1976, Respondent qualified Construction

By Scott (CBS). He was issued license number CG CB01004. At all

times material hereto, Respondent has been the qualifier of CBS,

and the sole owner and president of CBS.

3. At all times material hereto, Respondent's belief was

that Petitioner permitted a general contractor to use his/her

license to obtain building permits for construction projects for

which the general contractor had no contracts through the

business that he/she qualified. Respondent practiced his belief

frequently by applying for and obtaining building permits for

construction projects for which companies or individuals other

than CBS had contracts.

Collins Job (Case No. 97-1436)

4. Sometime after Hurricane Andrew in 1992, Respondent made

an oral agreement with Harold Bader to go into partnership with

Bader and form a construction company, with Respondent qualifying

the company. Respondent provided his name, his company's name

(CBS), and his license number to Bader in order for the

qualifying documents to be completed and submitted to the

Petitioner. However, the company was not formed and the

qualifying documents were never submitted.

5. At no time material hereto was Bader licensed by the

Petitioner to engage in the practice of contracting. Respondent

knew or should have known that Bader was not licensed by the

Petitioner.

6. In March 1994, Thomas Sherry of American Building

Industries, Inc. ( ABI), began negotiating with Maria and Wayne

Collins, husband and wife, for the remodeling of their home,

located at 7417 SW 140th Court, Miami, Florida. On March 24,

1994, the Collins entered into a contract with ABI for the

remodeling of their home at a cost of $12,500.

7. Bader was the owner of ABI. Sherry was a salesperson

for Bader.

8. Sherry provided the Collins with a business card which

showed, among other things, ABI's name, address and telephone

number, and license number. The license number on the business

card was Respondent's license number.

9. All business cards were provided to Sherry by Bader.

10. At no time material hereto, did Sherry talk with or

meet Respondent.

11. The records of the Metropolitan Dade County, Building

and Zoning Department reflect, among other things, Respondent's

name, his company's name (CBS) and license number on the building

permit application for the construction to the Collins' home.

However, the address listed for Respondent and his company was

the address for ABI. Further, the said records reflect, among

other things, that aforementioned information provided, as to

Respondent, was used to obtain the building permit.

12. Respondent did not complete the permit application for

the building permit to remodel the Collins' home.

13. The Collins paid $6,875 to ABI. Any and all checks

were made payable to ABI. No money for the construction on the

Collins' home was paid to or received by Respondent.

14. In May 1994, problems developed on the job site between

the Collins and ABI. The work performed by ABI failed numerous

inspections. Mr. Collins wanted to talk with Respondent who was

listed as the contractor on the permit and requested Bader to

contact Respondent. Bader refused, indicating to Mr. Collins

that all communication should be with him (Bader).

15. Finally, in August 1994 the Collins fired ABI after

more problems had developed. At that time ABI had completed some

of the work.

16. On August 29, 1994, Mr. Collins met with Respondent at

Respondent's place of business. Prior to the meeting ,

Mr. Collins had called Respondent numerous times regarding his

problems with ABI and Bader and requesting assistance from

Respondent. Each time Respondent denied having any knowledge of

the work being performed.

17. When Mr. Collins met with Respondent, Mr. Collins

discussed the problems that he had experienced with ABI and

Bader. Respondent continued to deny knowing anything about the

construction project but agreed to send his employees to examine

the job and determine what could be done, if anything. The

following day two of Respondent's workers came to the Collins'

home and examined the work completed and the work remaining.

18. Subsequently, Respondent contacted Mr. Collins.

Respondent indicated to Mr. Collins that he could complete the

job for $5,000. Mr. Collins refused to pay the additional monies

since it would extend the remodeling cost beyond the contracted

cost and since he was now directly paying the subcontractors.

19. At no time did Respondent or his business (CBS) have a

contract with the Collins.

20. Until being contacted by the Collins, Respondent had no

knowledge that Bader used his name, business name and license

number to contract with the Collins and to obtain the building

permit for the remodeling of their home.

21. However, prior to being contacted by the Collins,

Respondent had been contacted by other persons who had contracts

with ABI, who had been informed by Bader that Respondent was the

contractor for their jobs, who had problems with ABI, and who

wanted assistance from Respondent. Furthermore, the building

permits for the construction jobs of those persons reflected

Respondent and Respondent's company as the contractor.

22. At no time material hereto was Bader or ABI licensed by

the Petitioner to engage in the practice of contracting.

23. Respondent knew or should have known that neither Bader

nor ABI was licensed by the Petitioner to engage in the practice

of contracting. Respondent was placed on notice of their

unlicensed activity after the contacts by the homeowners prior to

the contact by the Collins.

24. Even with the knowledge of the homeowners' complaints

prior to the Collins' complaints, at no time did Respondent

notify Bader to stop using his (Respondent's) name, company's

name and license number. Further, at no time did Respondent

notify the Metropolitan Dade County, Building and Zoning

Department of Bader's misuse of his (Respondent's) name,

company's name, and license number or to no longer issue permits

to ABI under his (Respondent's) name, company and license.

Walsh Job (Case No. 97-1435)

25. In the Fall of 1995, Patrick and Susan Walsh entered

into an oral agreement with John Petracelli for an addition to

and the remodeling of their home, located at 761 Glen Ridge Road,

Key Biscayne, Florida.

26. On October 16, 1995, the Walshes entered into a verbal

agreement with Petracelli for an engineer to produce a set of

plans at a cost of $2,250 for the construction to their home.

The Walshes paid Petracelli the $2,250 on October 16, 1995.

27. On December 7, 1995, the Walshes entered into a written

agreement with Petracelli for the construction work on their home

at a cost of $84,000. Pursuant to this written agreement, the

Walshes paid Petracelli $16,800 on December 7, 1995.

28. Petracelli contacted Respondent and requested

Respondent to be the contractor for the construction work on the

Walshes' home. Respondent and Petracelli had met one another

previously when Petracelli was a salesperson for Bader.

Petracelli informed Respondent that he (Petracelli) had already

told the Walshes that Respondent was the contractor. To the

contrary, Petracelli had not informed the Walshes that Respondent

was involved in the construction to their home.

29. Respondent agreed to be the contractor but informed

Petracelli that, until a set of plans was approved by the Village

of Key Biscayne Building Division (Building Division), he could

not provide Petracelli with a cost figure for the construction

work. Petracelli informed Respondent that the plans were being

prepared, but did not inform Respondent that the Walshes had paid

for the preparation of the plans.

30. Respondent agreed further to submit the completed plans

to the Building Division for a "dry run" only. After the dry

run, Respondent would provide a cost figure for the construction

work.

31. A dry run is a process in which a contractor, who has a

complicated job which requires an engineer, submits a set of

plans, together with an application for a building permit, to the

Building Division for approval. The plans may be subject to

several modifications requested by the Building Division before

they are approved. As a result, the contractor does not know the

estimated cost of a job until the plans have gone through the

requested modifications, if any, and approved by the Building

Division. After the plans are approved by the Building Division,

the contractor is notified to come to the Building Division and

sign for and obtain the building permit.

32. Pursuant to the agreement between Respondent and

Petracelli, on or about December 11, 1995, Respondent completed

an application for a building permit for the addition to and the

remodeling of the Walshes' home and gave it to Petracelli. The

application reflected, among other things, CBS (Respondent's

company) as the contractor, and Respondent as the qualifier.

Respondent provided the application to Petracelli for the dry run

process only.

33. Further, Respondent reiterated to Petracelli that, once

the plans were approved by the Building Division, he (Respondent)

would meet with the Walshes and agree on a cost for the

construction work on their home and that, after agreeing on the

cost he (Respondent) would sign for and obtain the building

permit for the construction to begin. Respondent was not aware

that Petracelli and the Walshes had a signed agreement for the

construction work.

34. Petracelli submitted the plans, along with the permit

application, to the Building Division for approval. The plans

were modified several times to meet the approval of the Building

Division, but were never approved. The Building Division

considered the plans submitted to be substandard. Since no plans

were approved, no building permit was issued.

35. On or about January 3, 1996, the Walshes met at the

Building Division with some of the Building Division's officials,

Petracelli, and the engineer who prepared the plans. As a result

of the meeting, among other things, the Walshes were able to

review the permit application and discovered that Respondent, not

Petracelli, was licensed and the contractor for the construction

work; concluded that the engineer's work was considered so

substandard by the Building Division that any modification

produced by the engineer would not be approved by the Building

Division; and determined that they no longer wanted Petracelli to

perform the construction work on their home.

36. Within 24 hours of the meeting, the Walshes telephoned

Petracelli and terminated his services. Also, the Walshes

requested the return of all of the monies paid to Petracelli by

them; however, Petracelli did not return any of their money.

37. At no time material hereto was Petracelli licensed by

the Petitioner to engage in the practice of contracting.

Respondent knew or should have known that Petracelli was not

licensed by the Petitioner.

38. At no time material hereto did Respondent or his

company (CBS) have a contract with the Walshes. At no time

material hereto did Respondent have any communication or contact

with the Walshes.

Biscayne Kennel Club Job (Case No. 97-2998)

39. The Biscayne Kennel Club (BKC), located at 320 NW 115th

Street, Miami Shores, Florida, was a track for greyhound racing.

On October 30, 1995, the last race was run at BKC. In February

1996, the BKC sold its Pari-Mutuel license.

40. On or about December 11, 1996, the BKC, by and through

its representative, Carl Spitzer, entered into a written contract

with Cuyahoga Wrecking Corporation (CWC), by and through its

representative, Thomas Schwab, for, among other things, the

removal of asbestos and the demolition and removal of BKC's

grandstand structure and viewing area. The contract was prepared

by Schwab, who had 25 years of experience in the demolition

business, with 20 years of that experience in the State of

Florida.

41. All contract negotiations were between Schwab and

Spitzer. At no time was the President and CEO of BKC, Kay

Spitzer, involved in the contract negotiations.

42. As to cost, the contract provided at Article 4 that the

cost was $37,500 and that the $37,500 was "dedicated to the

removal of the described ACM." Further, Article 4 provided that

the "balance of the work to be paid for by the sale of the

ferrous and non-ferrous metals by the contractor."

43. In addition, the contract provided in Article 7 that,

among other things, all permits were included in the contract

price and that BKC and the "contractor" would share "equally all

the proceeds of the non-ferrous metals minus whatever costs are

incurred bringing it to market."

44. The contract did not restrict or prohibit CWC from

engaging the services of any individual or subcontractor to

perform the work required in the contract.

45. The grandstand structure and viewing area were one

structure. Attached to the roof of the structure was a small

building which was used by BKC personnel for viewing the races.

The roof was the highest part of the structure, except for the

small building. The distance from ground level to the top of the

roof was 69 feet and 10 inches; and the top of the small building

was approximately 15 feet higher than the top of the roof.

46. CWC contracted with Sal's Abatement to perform the

asbestos removal.

47. Schwab was licensed by Dade County, Florida, as a

specialty contractor. He was notified that the work for the BKC

job was outside the scope of his license and that a contractor,

licensed by the Petitioner, was required for the BKC job. Schwab

contacted Respondent to be the general contractor. Schwab had

worked with Respondent before on other, but smaller, jobs.

48. Respondent agreed to be the general contractor in

return for a percentage of the contract. Per the agreement,

Respondent would obtain the necessary permits, provide the

equipment necessary for the demolition, and supervise the workers

on the job.

49. On March 6, 1997, Respondent completed an application

for a building permit with Miami Shores Village, Florida, for the

demolition of the BKC grandstand. The application reflected

Respondent's company (CBS) as the contracting company and

Respondent as the qualifier. Carl Spitzer signed the permit

application on behalf of BKC.

50. On March 17, 1997, a building permit (permit number

41084) was issued by the Village of Miami Shores for the

demolition of BKC's grandstand. On April 29, 1997, the cost of

the permit, $566.50, was paid.

51. At no time material hereto was Schwab or CWC licensed

by Petitioner to engage in the practice of contracting.

Respondent knew or should have known that neither Schwab nor CWC

were licensed by Petitioner.

52. At no time did a contract exist between Respondent or

his company with BKC for the demolition job.

53. Respondent supervised CWC's preparation of the

grandstand for demolition. In preparing the grandstand for

demolition, Respondent and Schwab met at the site at least 3

times to discuss the demolition and its progress.

54. On May 16, 1997, the grandstand was scheduled to be

demolished.

55. On the morning of May 16th, as Schwab was leaving BKC,

Respondent arrived. Shortly thereafter, the grandstand

accidentally collapsed--the beams supporting the roof of the

grandstand failed, and the roof collapsed. Two of CWC's workers

were killed and three were seriously injured.

56. After the collapse, BKC contracted with another

company, Omega Contracting, to complete the demolition job.

57. The Petitioner submitted documents reflecting that its

costs of investigation and prosecution of the complaints against

Respondent, excluding costs associated with attorney's time, to

be $1,017.25.

58. On May 22, 1997, pursuant to an Emergency Suspension

Order, on May 22, 1997, the Petitioner suspended Respondent's

license.

59. Respondent has no prior disciplinary action taken

against him by the Petitioner.

CONCLUSIONS OF LAW

60. Pursuant to Section 120.569 and Subsection 120.57(1),

Florida Statutes, the Division of Administrative Hearings has

jurisdiction over the subject of these proceedings and the

parties thereto.

61. License revocation proceedings are penal in nature.

The burden of proof is on Petitioner to establish the

truthfulness of the allegations of the administrative complaints

by clear and convincing evidence. Department of Banking and

Finance, Division of Securities and Investor Protection v.

Osborne Stern and Company , 670 So. 2d 932 (Fla. 1996); Ferris v.

Turlington , 510 So. 2d 292 (Fla. 1987).

62. Section 489.129, Florida Statutes (1993), provides in

pertinent part:

(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 or

registration, require financial restitution

to a consumer, 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 or is a secondary qualifying

agent responsible under s. 489.1195 is found

guilty of any of the following acts:

* * *

(c ) Violating any provision of chapter 455.

* * *

(e) 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.

63. Section 455.227, Florida Statutes (1993), provides in

pertinent part:

(1) The board shall have the power to

revoke, suspend, or deny the renewal of the

license, or to reprimand, censure, or

otherwise discipline a licensee, if the board

finds that:

(a) The licensee has made misleading,

deceptive, untrue, or fraudulent

representations in the practice of his

profession.

* * *

(2 ) In addition to, or in lieu of any other

discipline imposed pursuant to this section,

the board may impose an administrative fine

not to exceed $1,000 for each

violation. . . .

64. Section 489.105, Florida Statutes (1993), provides a

definition for contractor and provides in pertinent part:

(3) "Contractor" means the person who is

qualified for, and shall only be responsible

for, the project contracted for and means,

except as exempted in this part, the person

who, for compensation, undertakes to, submits

a bid to, or does himself or by others

construct, repair, alter, remodel, add to,

demolish, subtract from, or improve any

building or structure, including related

improvements to real estate, for others or

for resale to others; and whose job scope is

substantially similar to the job scope

described in one of the subsequent paragraphs

of this subsection.

(a) "General contractor" means a contractor

whose services are unlimited as to the type

of work which he may do, except as provided

in this part.

Collins Job (Case No. 97-1436)

65. Petitioner has failed to demonstrate that Respondent

violated Subsection 489.129(1)(e). The facts alleged by

Petitioner in its Administrative Complaint to form a basis for

and to support a violation is that "Respondent obtained the

permit" for the job for the unlicensed contractor, i.e., Bader. 1

The evidence shows that Respondent did not obtain the permit.

66. However, the evidence shows that Respondent had prior

notice of the conduct by Bader, who was unlicensed, in using

Respondent's name, his company's name and his license number to

obtain building permits for construction jobs contracted by ABI,

which was also unlicensed. Moreover, the evidence shows that

once Respondent became aware of Bader's conduct, Respondent made

no attempt to prevent Bader from continuing his conduct; and that

Respondent's failure to act when he received prior notice of

Bader's conduct assisted Bader in obtaining a building permit for

the Collins job. Notwithstanding, Petitioner failed to allege

sufficient facts in its Administrative Complaint or to amend its

Administrative Complaint to present such conduct as a basis for

disciplinary action.

67. Petitioner has failed to demonstrate a violation of

Subsection 489.129(1)(c). Furthermore, Petitioner suggests in

its post-hearing submission that a violation of Subsection

489.129(1)(c) was not committed by Respondent.

Walsh Job (Case No. 97-1435)

68. Petitioner has failed to demonstrate that Respondent

violated Subsection 489.129(1)(e). The facts alleged by

Petitioner in its Administrative Complaint to form a basis for

and to support a violation is that "Respondent obtained the

permit" for the job for the unlicensed contractor, i.e.,

Petracelli. 2 The evidence shows that Respondent did not obtain

the permit.

69. Rather, the evidence shows that Respondent completed a

building permit application, representing on the application that

his business was the contractor and indicating his license number

as the qualifier. The permit application was given to

Petracelli, who filed it with the building department. The

permit application was filed prior to Respondent obtaining an

agreement with the Walshes that he would be the contractor for

the job. By making application for the building permit,

Respondent may have been assisting Petracelli, who was

unlicensed, in engaging in the practice of contracting. (See

discussion below.) However, Petitioner failed to allege those

facts in its Administrative Complaint or to amend its

Administrative Complaint to allege those facts as a basis for

disciplinary action.

70. Petitioner has failed to demonstrate that Respondent

violated Subsection 489.129(1)(c) by falsely representing on the

application for the building permit that he was the contractor

for the job. To the contrary, the evidence shows that

Respondent's intent and purpose was to submit the permit

application and plans to the building department for a "dry run"

only. If the plans were approved, Respondent's intent was to

meet with the Walshes to discuss the contract for the work to be

performed. After agreeing on contract terms, Respondent's intent

was to sign and obtain the building permit. The Petitioner

presented no evidence showing that such process by Respondent was

not an accepted practice or not proper or inappropriate.

Biscayne Kennel Club Job (Case No. 97-2998)

71. Section 489.129, Florida Statutes (1995), provides in

pertinent part:

(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 or

registration, require financial restitution

to a consumer, 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 or is a secondary qualifying

agent responsible under s. 489.1195 is found

guilty of any of the following acts:

* * *

(c ) Violating any provision of chapter 455.

* * *

(e ) 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.

* * *

(j ) Failing in any material respect to

comply with the provisions of this part or

violating a rule or lawful order of the

board.

72. Section 455.227, Florida Statutes (1995), provides in

pertinent part:

(1 ) The following acts shall constitute

grounds for which the disciplinary actions

specified in subsection (2) may be taken:

(a ) Making misleading, deceptive, or

fraudulent representations in or related to

the practice of the licensee's profession.

* * *

(2 ) When the board, or the department when

there is no board, finds any person guilty of

the grounds set forth in subsection (1) or of

any grounds set forth in the applicable

practice act, including conduct constituting

a substantial violation of subsection (1) or

a violation of the applicable practice act

which occurred prior to obtaining a license,

it may enter an order imposing one or more of

the following penalties:

(a ) Refusal to certify, or to certify with

restrictions, an application for a license.

(b ) Suspension or permanent revocation of a

license.

(c ) Restriction of practice.

(d ) Imposition of an administrative fine not

to exceed $5,000 for each count or separate

offense.

(e ) Issuance of a reprimand.

(f ) Placement of the licensee on probation

for a period of time and subject to such

conditions as the board, or the department

when there is no board, may specify. Those

conditions may include, but are not limited

to, requiring the licensee to undergo

treatment, attend continuing education

courses, submit to be reexamined, work under

the supervision of another licensee, or

satisfy any terms which are reasonably

tailored to the violations found.

(g ) Corrective action.

73. Section 489.1265, Florida Statutes (1995), provides,

among other things, prohibited acts by licensed contractors and

provides in pertinent part:

(3 ) A certified or registered contractor, or

contractor authorized by a local construction

regulation board to do contracting, may not

apply for or obtain a building permit for

construction work unless the certified or

registered contractor, or contractor

authorized by a local construction regulation

board to do contracting, or business

organization duly qualified by said

contractor, has entered into a contract to

make improvements to, or perform the

contracting at, the real property specified

in the application or permit. This

subsection does not prohibit a contractor

from applying for or obtaining a building

permit to allow the contractor to perform

work for another person without compensation

or to perform work on property that is owned

by the contractor.

74. Section 489.105, Florida Statutes (1995), provides a

definition for contractor and provides in pertinent part:

(3) "Contractor" means the person who is

qualified for, and shall only be responsible

for, the project contracted for and means,

except as exempted in this part, the person

who, for compensation, undertakes to, submits

a bid to, or does himself or by others

construct, repair, alter, remodel, add to,

demolish, subtract from, or improve any

building or structure, including related

improvements to real estate, for others or

for resale to others; and whose job scope is

substantially similar to the job scope

described in one of the subsequent paragraphs

of this subsection. For the purposes of

regulation under this part, "demolish"

applies only to demolition of steel tanks

over 50 feet in height; towers over 50 feet

in height; other structures over 50 feet in

height, other than buildings or residences

over three stories tall; and buildings or

residences over three stories tall. . . .:

(a) "General contractor" means a contractor

whose services are unlimited as to the type

of work which he may do, except as provided

in this part.

75. A general contractor's license was required for the BKC

job for it involved the demolition of a structure over 50 feet

tall. The services of a general contractor are unlimited.

Schwab, who contracted with BKC, was notified of this requirement

and contacted Respondent to be the general contractor for the

job.

76. Petitioner has demonstrated that Respondent violated

Subsections 455.227(1)(a), 489.129(1)(c), (e), and (j), and

489.1265(3). The contract for the demolition of the BKC

structure was between BKC, the owner of the structure, and the

unlicensed person or entity, not between BKC and Respondent who

was licensed as a general contractor. The unlicensed person or

entity engaged in the practice of contracting. Moreover, after

the contract for the demolition was entered into, Respondent made

an agreement with the unlicensed person, not the owner of the

structure, to be the contractor on the job. Respondent made

application for the building permit, representing that his

company was the contractor for the job, obtained the permit, and

supervised the demolition. Without Respondent's license the

unlicensed person or entity could not have obtained the permit

and engaged in the demolition of the structure. Respondent knew

or should have known that the unlicensed person was not licensed

to perform the demolition of the structure.

77. Regarding penalty, Rule 61G4-17.001, Florida

Administrative Code, provides in pertinent part:

The following guidelines shall be used in

disciplinary cases, absent aggravating or

mitigating circumstances and subject to other

provisions of this Chapter.

* * *

(3) 489.129(1)(c): Violating any part of

Chapter 455. Penalty within ranges prescribed

by Section 455.227, unless otherwise

prescribed herein.

(a) 455.227(1)(a): Fraud, deceit,

misleading, or untrue representations. First

violation, $1,000 to $3,000 fine and/or

probation, suspension, or revocation; repeat

violation, revocation and $5,000 fine.

* * *

(5) 489.129(1)(e): Assisting unlicensed

person to evade provision of Chapter 489.

First violation, $500 to $2,500 fine; repeat

violation, $2,500 to $5,000 fine and/or

probation, suspension, or revocation.

* * *

(10) 489.129(1)(j): Failing in any material

respect to comply with the provisions of Part

I of Chapter 489. . . .

78. No specific penalty guideline is set forth in the Rule

for a violation of Subsection 489.129(1)(j) which coincides with

the grounds specified in the administrative complaint. Further,

the Rule does not set forth a guideline for a violation of

Subsection 489.1265(3).

79. However, Rule 61G4-17.001 provides further in pertinent

part:

(22) The absence of any violation from this

Chapter shall be viewed as an oversight, and

shall not be construed as an indication that

no penalty is to be assessed. The Guideline

penalty for the offense most closely

resembling the omitted violation shall apply.

80. The offense most closely resembling the omitted

violation of Subsection 489.1265(3) is a violation of Subsection

489.129(1)(e). The conduct of Respondent obtaining a building

permit for the demolition job when he had not entered into a

contract with the owner of the structure to be demolished closely

resembles the act of assisting an unlicensed person or entity to

engage in the practice of contracting.

81. Pursuant to Rule 61G4-17.002, Florida Administrative

Code, Petitioner may consider aggravating and mitigating

circumstances. Rule 61G4-17.002 provides:

Circumstances which may be considered for the

purposes of mitigation or aggravation of

penalty shall include, but are not limited

to, the following:

(1) Monetary or other damage to the

licensee's customer, in any way associated

with the violation, which damage the licensee

has not relieved, as of the time the penalty

is to be assessed. (This provision shall not

be given effect to the extent it would

contravene federal bankruptcy law.)

(2) Actual job-site violations of building

codes, or conditions exhibiting gross

negligence, incompetence, or misconduct by

the licensee, which have not been corrected

as of the time the penalty is being assessed.

(3) The severity of the offense.

(4) The danger to the public.

(5) The number of repetitions of offenses.

(6) The number of complaints filed against

the licensee.

(7) The length of time the licensee has

practiced.

(8) The actual damage, physical or

otherwise, to the licensee's customer.

(9) The deterrent effect of the penalty

imposed.

(10) The effect of the penalty upon the

licensee's livelihood.

(11) Any efforts at rehabilitation.

(12) Any other mitigating or aggravating

circumstances.

82. As aggravating factors, circumstances (3), (4), and

(11) should be considered. Respondent has expressed his belief

and practice that a licensed contractor can obtain a building

permit for a job that neither the contractor nor the company that

the contractor qualifies has entered into a contract with the

property owner. Respondent maintained this position up to and

during hearing. Such practice is contrary to the practice act

for contracting. Respondent's willingness to conduct himself

contrary to the practice act for contracting presents a danger to

the public and fails to demonstrate any rehabilitation on the

part of Respondent.

83. As a mitigating factor, circumstance (7) should be

considered. Respondent has been licensed for approximately 28

years with no disciplinary action by Petitioner.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is

RECOMMENDED that the Construction Industry Licensing Board

enter a final order:

1. Dismissing all counts in Case Nos. 97-1435 and 97-1436.

2. Finding that Arthur Signore violated Subsections

489.129(1)(c), (e), and (j), 489.1265(3), and 455.227(1)(a),

Florida Statutes (1995).

3. Revoking Arthur Signore's certified general contractor's

license.

4. Requiring Arthur Signore to pay all reasonable costs of

investigation and prosecution associated with the Department of

Business and Professional Regulation's investigation and

prosecution of the charges set forth in the Administrative

Complaint of Case No. 97-2998. 3

DONE AND ENTERED this 13th day of January, 1998, in

Tallahassee, Leon County, Florida.

___________________________________

ERROL H. POWELL

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 [phone]

Filed with the Clerk of the

Division of Administrative Hearings

this 13th day of January, 1998.

ENDNOTES

1/ Petitioner alleged in Count I, paragraph number 8 of the

Administrative Complaint the following: "8. On or about

April 26, 1994, the Respondent obtained the permit for the

Customer's project."

2/ Petitioner alleged in Count I, paragraph numbered 8 of the

Administrative Complaint the following: "8. On or about

December 11, 1995, the Respondent obtained the permit for the

Customer's project from the Village of Key Biscayne."

3/ Rule 61G4-12.018, Florida Administrative Code, requires the

Department of Business and Professional Regulation to "submit to

the Board an itemized listing of all costs related to

investigation and prosecution of an administrative complaint when

said complaint is brought before the Board for final agency

action." Fundamental fairness requires that the Board provide

Respondent an opportunity to dispute and challenge the accuracy

and/or reasonableness of the itemization of investigative and

prosecutorial costs before the Board determines the amount of

costs Respondent will be required to pay.

COPIES FURNISHED:

Theodore R. Gay, Esquire

Department of Business and

Professional Regulation

401 Northwest 2nd Avenue, Suite N-607

Miami, Florida 33128

Sean J. Green, Esquire

Benjamin R. Jacobi, Esquire

1313 Northeast 125th Street

North Miami, Florida 33161

Rodney Hurst, Executive Director

Construction Industry Licensing

7960 Arlington Expressway, Suite 300

Jacksonville, Florida 32211-7467

Lynda L. Goodgame, General Counsel

Department of Business and

Professional Regulation

1940 North Monroe Street

Northwood Centre

Tallahassee, Florida 32399-0792

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.