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

View Dockets  
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.






20BOARD , )


23Petitioner , ) Case Nos. 97-1435

28) 97-1436

30vs. ) 97-2998




38Respondent. )



43Pursuant to notice, a formal hearing was held in this case

54on September 2, 1997, at Miami Florida, before Errol H. Powell, a

66duly designated Administrative Law Judge of the Division of

75Administrative Hearings.


78For Petitioner : Theodore R. Gay, Esquire

85Department of Business and

89Professional Regulation

91401 Northwest 2nd Avenue, Suite N-607

97Miami, Florida 33128

100For Respondent : Sean J. Green, Esquire

107Benjamin R. Jacobi, Esquire

1111313 Northeast 125th Street

115North Miami, Florida 33161


123The issue for determination is whether Arthur Signore

131committed the offenses set forth in the administrative complaints

140and, if so, what action should be taken.


150On November 26, 1996, the Department of Business and

159Professional Regulation, Construction Industry Licensing Board

165(Petitioner) filed two two-count administrative complaints

171against Arthur Signore (Respondent). The Petitioner charged

178Respondent in each administrative complaint with the following :

187Count I--with violating Subsection 489.129(1)(e), Florida

193Statutes (1993), by performing any act which assists a person or

204entity in engaging in the prohibited uncertified and unregistered

213practice of contracting, if the certificateholder or registrant

221knows or has reasonable grounds to know that the person or entity

233was uncertified and unregistered; and Count II--with violating

241Subsection 489.129(1)(c), Florida Statutes (1993), by violating

248any provision of Chapter 455, Florida Statutes, through the

257making of misleading, deceptive, untrue, or fraudulent

264representations in the practice of his profession in violation of

274Subsection 455.227(1)(a), Florida Statutes (1993). By Election

281of Rights, Respondent disputed the allegations of fact and

290requested a formal hearing. On March 21, 1997, these matters

300were referred to the Division of Administrative Hearings (DOAH)

309and assigned Case Nos. 97-1435 and 97-1436.

316By Order dated April 21, 1997, the two cases were

326consolidated. The two cases were scheduled for formal hearing.

335Subsequently, the hearing was continued predicated on the filing

344of an additional administrative complaint by the Petitioner

352against Respondent.

354On May 30, 1997, the Petitioner filed a three-count

363administrative complaint against Respondent. The Petitioner

369charged Respondent with the following: Count I--with violating

377Subsection 489.129(1)(e), Florida Statutes (1995), by performing

384any act which assists a person or entity in engaging in the

396prohibited uncertified and unregistered practice of contracting,

403if the certificateholder or registrant knows or has reasonable

412grounds to know that the person or entity was uncertified and

423unregistered; Count II--with violating Subsection 489.1265(3),

429Florida Statutes (1995), by obtaining a building permit for

438construction work without having entered into a contract to make

448improvements to, or perform the contracting at, the real property

458specified in the permit, and with violating Subsection

466489.129(1)(j), Florida Statutes (1995), by failing in any

474material respect to comply with the provisions of Part I of

485Chapter 489, Florida Statutes, or violating a rule or lawful

495order of the Petitioner; and Count III--with violating Subsection

504489.129(1)(c), Florida Statutes (1995), by violating any

511provision of Chapter 455, Florida Statutes. On June 24, 1997,

521Respondent forwarded an answer to the administrative complaint

529denying the alleged violations. On July 2, 1997, this matter was

540referred to DOAH and assigned Case No. 97-2998.

548By Order dated July 10, 1997, the three cases were

558consolidated. The cases were scheduled for formal hearing.

566At hearing, the Petitioner presented the testimony of six

575witnesses and entered eighteen exhibits into evidence.

582Respondent testified in his own behalf, presented the testimony

591of one witness and entered three exhibits into evidence.

600A transcript of the hearing was ordered. At the request of

611the parties, the time for filing post-hearing submissions was set

621for more than ten days following the filing of the transcript.

632The parties filed post-hearing submissions which have been duly



6451. At all times material hereto, Arthur Signore

653(Respondent) was licensed by the Department of Business and

662Professional Regulation, Construction Industry Licensing Board

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

677license in 1969, qualifying Deluccia Construction. Respondent

684was issued license number CG CA01004.

6902. Subsequently, in 1976, Respondent qualified Construction

697By Scott (CBS). He was issued license number CG CB01004. At all

709times material hereto, Respondent has been the qualifier of CBS,

719and the sole owner and president of CBS.

7273. At all times material hereto, Respondent's belief was

736that Petitioner permitted a general contractor to use his/her

745license to obtain building permits for construction projects for

754which the general contractor had no contracts through the

763business that he/she qualified. Respondent practiced his belief

771frequently by applying for and obtaining building permits for

780construction projects for which companies or individuals other

788than CBS had contracts.

792Collins Job (Case No. 97-1436)

7974. Sometime after Hurricane Andrew in 1992, Respondent made

806an oral agreement with Harold Bader to go into partnership with

817Bader and form a construction company, with Respondent qualifying

826the company. Respondent provided his name, his company's name

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

846qualifying documents to be completed and submitted to the

855Petitioner. However, the company was not formed and the

864qualifying documents were never submitted.

8695. At no time material hereto was Bader licensed by the

880Petitioner to engage in the practice of contracting. Respondent

889knew or should have known that Bader was not licensed by the


9026. In March 1994, Thomas Sherry of American Building

911Industries, Inc. ( ABI), began negotiating with Maria and Wayne

921Collins, husband and wife, for the remodeling of their home,

931located at 7417 SW 140th Court, Miami, Florida. On March 24,

9421994, the Collins entered into a contract with ABI for the

953remodeling of their home at a cost of $12,500.

9637. Bader was the owner of ABI. Sherry was a salesperson

974for Bader.

9768. Sherry provided the Collins with a business card which

986showed, among other things, ABI's name, address and telephone

995number, and license number. The license number on the business

1005card was Respondent's license number.

10109. All business cards were provided to Sherry by Bader.

102010. At no time material hereto, did Sherry talk with or

1031meet Respondent.

103311. The records of the Metropolitan Dade County, Building

1042and Zoning Department reflect, among other things, Respondent's

1050name, his company's name (CBS) and license number on the building

1061permit application for the construction to the Collins' home.

1070However, the address listed for Respondent and his company was

1080the address for ABI. Further, the said records reflect, among

1090other things, that aforementioned information provided, as to

1098Respondent, was used to obtain the building permit.

110612. Respondent did not complete the permit application for

1115the building permit to remodel the Collins' home.

112313. The Collins paid $6,875 to ABI. Any and all checks

1135were made payable to ABI. No money for the construction on the

1147Collins' home was paid to or received by Respondent.

115614. In May 1994, problems developed on the job site between

1167the Collins and ABI. The work performed by ABI failed numerous

1178inspections. Mr. Collins wanted to talk with Respondent who was

1188listed as the contractor on the permit and requested Bader to

1199contact Respondent. Bader refused, indicating to Mr. Collins

1207that all communication should be with him (Bader).

121515. Finally, in August 1994 the Collins fired ABI after

1225more problems had developed. At that time ABI had completed some

1236of the work.

123916. On August 29, 1994, Mr. Collins met with Respondent at

1250Respondent's place of business. Prior to the meeting ,

1258Mr. Collins had called Respondent numerous times regarding his

1267problems with ABI and Bader and requesting assistance from

1276Respondent. Each time Respondent denied having any knowledge of

1285the work being performed.

128917. When Mr. Collins met with Respondent, Mr. Collins

1298discussed the problems that he had experienced with ABI and

1308Bader. Respondent continued to deny knowing anything about the

1317construction project but agreed to send his employees to examine

1327the job and determine what could be done, if anything. The

1338following day two of Respondent's workers came to the Collins'

1348home and examined the work completed and the work remaining.

135818. Subsequently, Respondent contacted Mr. Collins.

1364Respondent indicated to Mr. Collins that he could complete the

1374job for $5,000. Mr. Collins refused to pay the additional monies

1386since it would extend the remodeling cost beyond the contracted

1396cost and since he was now directly paying the subcontractors.

140619. At no time did Respondent or his business (CBS) have a

1418contract with the Collins.

142220. Until being contacted by the Collins, Respondent had no

1432knowledge that Bader used his name, business name and license

1442number to contract with the Collins and to obtain the building

1453permit for the remodeling of their home.

146021. However, prior to being contacted by the Collins,

1469Respondent had been contacted by other persons who had contracts

1479with ABI, who had been informed by Bader that Respondent was the

1491contractor for their jobs, who had problems with ABI, and who

1502wanted assistance from Respondent. Furthermore, the building

1509permits for the construction jobs of those persons reflected

1518Respondent and Respondent's company as the contractor.

152522. At no time material hereto was Bader or ABI licensed by

1537the Petitioner to engage in the practice of contracting.

154623. Respondent knew or should have known that neither Bader

1556nor ABI was licensed by the Petitioner to engage in the practice

1568of contracting. Respondent was placed on notice of their

1577unlicensed activity after the contacts by the homeowners prior to

1587the contact by the Collins.

159224. Even with the knowledge of the homeowners' complaints

1601prior to the Collins' complaints, at no time did Respondent

1611notify Bader to stop using his (Respondent's) name, company's

1620name and license number. Further, at no time did Respondent

1630notify the Metropolitan Dade County, Building and Zoning

1638Department of Bader's misuse of his (Respondent's) name,

1646company's name, and license number or to no longer issue permits

1657to ABI under his (Respondent's) name, company and license.

1666Walsh Job (Case No. 97-1435)

167125. In the Fall of 1995, Patrick and Susan Walsh entered

1682into an oral agreement with John Petracelli for an addition to

1693and the remodeling of their home, located at 761 Glen Ridge Road,

1705Key Biscayne, Florida.

170826. On October 16, 1995, the Walshes entered into a verbal

1719agreement with Petracelli for an engineer to produce a set of

1730plans at a cost of $2,250 for the construction to their home.

1743The Walshes paid Petracelli the $2,250 on October 16, 1995.

175427. On December 7, 1995, the Walshes entered into a written

1765agreement with Petracelli for the construction work on their home

1775at a cost of $84,000. Pursuant to this written agreement, the

1787Walshes paid Petracelli $16,800 on December 7, 1995.

179628. Petracelli contacted Respondent and requested

1802Respondent to be the contractor for the construction work on the

1813Walshes' home. Respondent and Petracelli had met one another

1822previously when Petracelli was a salesperson for Bader.

1830Petracelli informed Respondent that he (Petracelli) had already

1838told the Walshes that Respondent was the contractor. To the

1848contrary, Petracelli had not informed the Walshes that Respondent

1857was involved in the construction to their home.

186529. Respondent agreed to be the contractor but informed

1874Petracelli that, until a set of plans was approved by the Village

1886of Key Biscayne Building Division (Building Division), he could

1895not provide Petracelli with a cost figure for the construction

1905work. Petracelli informed Respondent that the plans were being

1914prepared, but did not inform Respondent that the Walshes had paid

1925for the preparation of the plans.

193130. Respondent agreed further to submit the completed plans

1940to the Building Division for a "dry run" only. After the dry

1952run, Respondent would provide a cost figure for the construction


196331. A dry run is a process in which a contractor, who has a

1977complicated job which requires an engineer, submits a set of

1987plans, together with an application for a building permit, to the

1998Building Division for approval. The plans may be subject to

2008several modifications requested by the Building Division before

2016they are approved. As a result, the contractor does not know the

2028estimated cost of a job until the plans have gone through the

2040requested modifications, if any, and approved by the Building

2049Division. After the plans are approved by the Building Division,

2059the contractor is notified to come to the Building Division and

2070sign for and obtain the building permit.

207732. Pursuant to the agreement between Respondent and

2085Petracelli, on or about December 11, 1995, Respondent completed

2094an application for a building permit for the addition to and the

2106remodeling of the Walshes' home and gave it to Petracelli. The

2117application reflected, among other things, CBS (Respondent's

2124company) as the contractor, and Respondent as the qualifier.

2133Respondent provided the application to Petracelli for the dry run

2143process only.

214533. Further, Respondent reiterated to Petracelli that, once

2153the plans were approved by the Building Division, he (Respondent)

2163would meet with the Walshes and agree on a cost for the

2175construction work on their home and that, after agreeing on the

2186cost he (Respondent) would sign for and obtain the building

2196permit for the construction to begin. Respondent was not aware

2206that Petracelli and the Walshes had a signed agreement for the

2217construction work.

221934. Petracelli submitted the plans, along with the permit

2228application, to the Building Division for approval. The plans

2237were modified several times to meet the approval of the Building

2248Division, but were never approved. The Building Division

2256considered the plans submitted to be substandard. Since no plans

2266were approved, no building permit was issued.

227335. On or about January 3, 1996, the Walshes met at the

2285Building Division with some of the Building Division's officials,

2294Petracelli, and the engineer who prepared the plans. As a result

2305of the meeting, among other things, the Walshes were able to

2316review the permit application and discovered that Respondent, not

2325Petracelli, was licensed and the contractor for the construction

2334work; concluded that the engineer's work was considered so

2343substandard by the Building Division that any modification

2351produced by the engineer would not be approved by the Building

2362Division; and determined that they no longer wanted Petracelli to

2372perform the construction work on their home.

237936. Within 24 hours of the meeting, the Walshes telephoned

2389Petracelli and terminated his services. Also, the Walshes

2397requested the return of all of the monies paid to Petracelli by

2409them; however, Petracelli did not return any of their money.

241937. At no time material hereto was Petracelli licensed by

2429the Petitioner to engage in the practice of contracting.

2438Respondent knew or should have known that Petracelli was not

2448licensed by the Petitioner.

245238. At no time material hereto did Respondent or his

2462company (CBS) have a contract with the Walshes. At no time

2473material hereto did Respondent have any communication or contact

2482with the Walshes.

2485Biscayne Kennel Club Job (Case No. 97-2998)

249239. The Biscayne Kennel Club (BKC), located at 320 NW 115th

2503Street, Miami Shores, Florida, was a track for greyhound racing.

2513On October 30, 1995, the last race was run at BKC. In February

25261996, the BKC sold its Pari-Mutuel license.

253340. On or about December 11, 1996, the BKC, by and through

2545its representative, Carl Spitzer, entered into a written contract

2554with Cuyahoga Wrecking Corporation (CWC), by and through its

2563representative, Thomas Schwab, for, among other things, the

2571removal of asbestos and the demolition and removal of BKC's

2581grandstand structure and viewing area. The contract was prepared

2590by Schwab, who had 25 years of experience in the demolition

2601business, with 20 years of that experience in the State of


261341. All contract negotiations were between Schwab and

2621Spitzer. At no time was the President and CEO of BKC, Kay

2633Spitzer, involved in the contract negotiations.

263942. As to cost, the contract provided at Article 4 that the

2651cost was $37,500 and that the $37,500 was "dedicated to the

2664removal of the described ACM." Further, Article 4 provided that

2674the "balance of the work to be paid for by the sale of the

2688ferrous and non-ferrous metals by the contractor."

269543. In addition, the contract provided in Article 7 that,

2705among other things, all permits were included in the contract

2715price and that BKC and the "contractor" would share "equally all

2726the proceeds of the non-ferrous metals minus whatever costs are

2736incurred bringing it to market."

274144. The contract did not restrict or prohibit CWC from

2751engaging the services of any individual or subcontractor to

2760perform the work required in the contract.

276745. The grandstand structure and viewing area were one

2776structure. Attached to the roof of the structure was a small

2787building which was used by BKC personnel for viewing the races.

2798The roof was the highest part of the structure, except for the

2810small building. The distance from ground level to the top of the

2822roof was 69 feet and 10 inches; and the top of the small building

2836was approximately 15 feet higher than the top of the roof.

284746. CWC contracted with Sal's Abatement to perform the

2856asbestos removal.

285847. Schwab was licensed by Dade County, Florida, as a

2868specialty contractor. He was notified that the work for the BKC

2879job was outside the scope of his license and that a contractor,

2891licensed by the Petitioner, was required for the BKC job. Schwab

2902contacted Respondent to be the general contractor. Schwab had

2911worked with Respondent before on other, but smaller, jobs.

292048. Respondent agreed to be the general contractor in

2929return for a percentage of the contract. Per the agreement,

2939Respondent would obtain the necessary permits, provide the

2947equipment necessary for the demolition, and supervise the workers

2956on the job.

295949. On March 6, 1997, Respondent completed an application

2968for a building permit with Miami Shores Village, Florida, for the

2979demolition of the BKC grandstand. The application reflected

2987Respondent's company (CBS) as the contracting company and

2995Respondent as the qualifier. Carl Spitzer signed the permit

3004application on behalf of BKC.

300950. On March 17, 1997, a building permit (permit number

301941084) was issued by the Village of Miami Shores for the

3030demolition of BKC's grandstand. On April 29, 1997, the cost of

3041the permit, $566.50, was paid.

304651. At no time material hereto was Schwab or CWC licensed

3057by Petitioner to engage in the practice of contracting.

3066Respondent knew or should have known that neither Schwab nor CWC

3077were licensed by Petitioner.

308152. At no time did a contract exist between Respondent or

3092his company with BKC for the demolition job.

310053. Respondent supervised CWC's preparation of the

3107grandstand for demolition. In preparing the grandstand for

3115demolition, Respondent and Schwab met at the site at least 3

3126times to discuss the demolition and its progress.

313454. On May 16, 1997, the grandstand was scheduled to be


314655. On the morning of May 16th, as Schwab was leaving BKC,

3158Respondent arrived. Shortly thereafter, the grandstand

3164accidentally collapsed--the beams supporting the roof of the

3172grandstand failed, and the roof collapsed. Two of CWC's workers

3182were killed and three were seriously injured.

318956. After the collapse, BKC contracted with another

3197company, Omega Contracting, to complete the demolition job.

320557. The Petitioner submitted documents reflecting that its

3213costs of investigation and prosecution of the complaints against

3222Respondent, excluding costs associated with attorney's time, to

3230be $1,017.25.

323358. On May 22, 1997, pursuant to an Emergency Suspension

3243Order, on May 22, 1997, the Petitioner suspended Respondent's


325359. Respondent has no prior disciplinary action taken

3261against him by the Petitioner.


326960. Pursuant to Section 120.569 and Subsection 120.57(1),

3277Florida Statutes, the Division of Administrative Hearings has

3285jurisdiction over the subject of these proceedings and the

3294parties thereto.

329661. License revocation proceedings are penal in nature.

3304The burden of proof is on Petitioner to establish the

3314truthfulness of the allegations of the administrative complaints

3322by clear and convincing evidence. Department of Banking and

3331Finance, Division of Securities and Investor Protection v.

3339Osborne Stern and Company , 670 So. 2d 932 (Fla. 1996); Ferris v.

3351Turlington , 510 So. 2d 292 (Fla. 1987).

335862. Section 489.129, Florida Statutes (1993), provides in

3366pertinent part:

3368(1 ) The board may take any of the following

3378actions against any certificateholder or

3383registrant: place on probation or reprimand

3389the licensee, revoke, suspend, or deny the

3396issuance or renewal of the certificate or

3403registration, require financial restitution

3407to a consumer, impose an administrative fine

3414not to exceed $5,000 per violation, require

3422continuing education, or assess costs

3427associated with investigation and

3431prosecution, if the contractor, financially

3436responsible officer, or business organization

3441for which the contractor is a primary

3448qualifying agent or is a secondary qualifying

3455agent responsible under s. 489.1195 is found

3462guilty of any of the following acts:

3469* * *

3472(c ) Violating any provision of chapter 455.

3480* * *

3483(e) Performing any act which assists a

3490person or entity in engaging in the

3497prohibited uncertified and unregistered

3501practice of contracting, if the

3506certificateholder or registrant knows or has

3512reasonable grounds to know that the person or

3520entity was uncertified and unregistered.

352563. Section 455.227, Florida Statutes (1993), provides in

3533pertinent part:

3535(1) The board shall have the power to

3543revoke, suspend, or deny the renewal of the

3551license, or to reprimand, censure, or

3557otherwise discipline a licensee, if the board

3564finds that:

3566(a) The licensee has made misleading,

3572deceptive, untrue, or fraudulent

3576representations in the practice of his


3583* * *

3586(2 ) In addition to, or in lieu of any other

3597discipline imposed pursuant to this section,

3603the board may impose an administrative fine

3610not to exceed $1,000 for each

3617violation. . . .

362164. Section 489.105, Florida Statutes (1993), provides a

3629definition for contractor and provides in pertinent part:

3637(3) "Contractor" means the person who is

3644qualified for, and shall only be responsible

3651for, the project contracted for and means,

3658except as exempted in this part, the person

3666who, for compensation, undertakes to, submits

3672a bid to, or does himself or by others

3681construct, repair, alter, remodel, add to,

3687demolish, subtract from, or improve any

3693building or structure, including related

3698improvements to real estate, for others or

3705for resale to others; and whose job scope is

3714substantially similar to the job scope

3720described in one of the subsequent paragraphs

3727of this subsection.

3730(a) "General contractor" means a contractor

3736whose services are unlimited as to the type

3744of work which he may do, except as provided

3753in this part.

3756Collins Job (Case No. 97-1436)

376165. Petitioner has failed to demonstrate that Respondent

3769violated Subsection 489.129(1)(e). The facts alleged by

3776Petitioner in its Administrative Complaint to form a basis for

3786and to support a violation is that "Respondent obtained the

3796permit" for the job for the unlicensed contractor, i.e., Bader. 1

3807The evidence shows that Respondent did not obtain the permit.

381766. However, the evidence shows that Respondent had prior

3826notice of the conduct by Bader, who was unlicensed, in using

3837Respondent's name, his company's name and his license number to

3847obtain building permits for construction jobs contracted by ABI,

3856which was also unlicensed. Moreover, the evidence shows that

3865once Respondent became aware of Bader's conduct, Respondent made

3874no attempt to prevent Bader from continuing his conduct; and that

3885Respondent's failure to act when he received prior notice of

3895Bader's conduct assisted Bader in obtaining a building permit for

3905the Collins job. Notwithstanding, Petitioner failed to allege

3913sufficient facts in its Administrative Complaint or to amend its

3923Administrative Complaint to present such conduct as a basis for

3933disciplinary action.

393567. Petitioner has failed to demonstrate a violation of

3944Subsection 489.129(1)(c). Furthermore, Petitioner suggests in

3950its post-hearing submission that a violation of Subsection

3958489.129(1)(c) was not committed by Respondent.

3964Walsh Job (Case No. 97-1435)

396968. Petitioner has failed to demonstrate that Respondent

3977violated Subsection 489.129(1)(e). The facts alleged by

3984Petitioner in its Administrative Complaint to form a basis for

3994and to support a violation is that "Respondent obtained the

4004permit" for the job for the unlicensed contractor, i.e.,

4013Petracelli. 2 The evidence shows that Respondent did not obtain

4023the permit.

402569. Rather, the evidence shows that Respondent completed a

4034building permit application, representing on the application that

4042his business was the contractor and indicating his license number

4052as the qualifier. The permit application was given to

4061Petracelli, who filed it with the building department. The

4070permit application was filed prior to Respondent obtaining an

4079agreement with the Walshes that he would be the contractor for

4090the job. By making application for the building permit,

4099Respondent may have been assisting Petracelli, who was

4107unlicensed, in engaging in the practice of contracting. (See

4116discussion below.) However, Petitioner failed to allege those

4124facts in its Administrative Complaint or to amend its

4133Administrative Complaint to allege those facts as a basis for

4143disciplinary action.

414570. Petitioner has failed to demonstrate that Respondent

4153violated Subsection 489.129(1)(c) by falsely representing on the

4161application for the building permit that he was the contractor

4171for the job. To the contrary, the evidence shows that

4181Respondent's intent and purpose was to submit the permit

4190application and plans to the building department for a "dry run"

4201only. If the plans were approved, Respondent's intent was to

4211meet with the Walshes to discuss the contract for the work to be

4224performed. After agreeing on contract terms, Respondent's intent

4232was to sign and obtain the building permit. The Petitioner

4242presented no evidence showing that such process by Respondent was

4252not an accepted practice or not proper or inappropriate.

4261Biscayne Kennel Club Job (Case No. 97-2998)

426871. Section 489.129, Florida Statutes (1995), provides in

4276pertinent part:

4278(1 ) The board may take any of the following

4288actions against any certificateholder or

4293registrant: place on probation or reprimand

4299the licensee, revoke, suspend, or deny the

4306issuance or renewal of the certificate or

4313registration, require financial restitution

4317to a consumer, impose an administrative fine

4324not to exceed $5,000 per violation, require

4332continuing education, or assess costs

4337associated with investigation and

4341prosecution, if the contractor, financially

4346responsible officer, or business organization

4351for which the contractor is a primary

4358qualifying agent or is a secondary qualifying

4365agent responsible under s. 489.1195 is found

4372guilty of any of the following acts:

4379* * *

4382(c ) Violating any provision of chapter 455.

4390* * *

4393(e ) Performing any act which assists a

4401person or entity in engaging in the

4408prohibited uncertified and unregistered

4412practice of contracting, if the

4417certificateholder or registrant knows or has

4423reasonable grounds to know that the person or

4431entity was uncertified and unregistered.

4436* * *

4439(j ) Failing in any material respect to

4447comply with the provisions of this part or

4455violating a rule or lawful order of the


446472. Section 455.227, Florida Statutes (1995), provides in

4472pertinent part:

4474(1 ) The following acts shall constitute

4481grounds for which the disciplinary actions

4487specified in subsection (2) may be taken:

4494(a ) Making misleading, deceptive, or

4500fraudulent representations in or related to

4506the practice of the licensee's profession.

4512* * *

4515(2 ) When the board, or the department when

4524there is no board, finds any person guilty of

4533the grounds set forth in subsection (1) or of

4542any grounds set forth in the applicable

4549practice act, including conduct constituting

4554a substantial violation of subsection (1) or

4561a violation of the applicable practice act

4568which occurred prior to obtaining a license,

4575it may enter an order imposing one or more of

4585the following penalties:

4588(a ) Refusal to certify, or to certify with

4597restrictions, an application for a license.

4603(b ) Suspension or permanent revocation of a


4612(c ) Restriction of practice.

4617(d ) Imposition of an administrative fine not

4625to exceed $5,000 for each count or separate


4635(e ) Issuance of a reprimand.

4641(f ) Placement of the licensee on probation

4649for a period of time and subject to such

4658conditions as the board, or the department

4665when there is no board, may specify. Those

4673conditions may include, but are not limited

4680to, requiring the licensee to undergo

4686treatment, attend continuing education

4690courses, submit to be reexamined, work under

4697the supervision of another licensee, or

4703satisfy any terms which are reasonably

4709tailored to the violations found.

4714(g ) Corrective action.

471873. Section 489.1265, Florida Statutes (1995), provides,

4725among other things, prohibited acts by licensed contractors and

4734provides in pertinent part:

4738(3 ) A certified or registered contractor, or

4746contractor authorized by a local construction

4752regulation board to do contracting, may not

4759apply for or obtain a building permit for

4767construction work unless the certified or

4773registered contractor, or contractor

4777authorized by a local construction regulation

4783board to do contracting, or business

4789organization duly qualified by said

4794contractor, has entered into a contract to

4801make improvements to, or perform the

4807contracting at, the real property specified

4813in the application or permit. This

4819subsection does not prohibit a contractor

4825from applying for or obtaining a building

4832permit to allow the contractor to perform

4839work for another person without compensation

4845or to perform work on property that is owned

4854by the contractor.

485774. Section 489.105, Florida Statutes (1995), provides a

4865definition for contractor and provides in pertinent part:

4873(3) "Contractor" means the person who is

4880qualified for, and shall only be responsible

4887for, the project contracted for and means,

4894except as exempted in this part, the person

4902who, for compensation, undertakes to, submits

4908a bid to, or does himself or by others

4917construct, repair, alter, remodel, add to,

4923demolish, subtract from, or improve any

4929building or structure, including related

4934improvements to real estate, for others or

4941for resale to others; and whose job scope is

4950substantially similar to the job scope

4956described in one of the subsequent paragraphs

4963of this subsection. For the purposes of

4970regulation under this part, "demolish"

4975applies only to demolition of steel tanks

4982over 50 feet in height; towers over 50 feet

4991in height; other structures over 50 feet in

4999height, other than buildings or residences

5005over three stories tall; and buildings or

5012residences over three stories tall. . . .:

5020(a) "General contractor" means a contractor

5026whose services are unlimited as to the type

5034of work which he may do, except as provided

5043in this part.

504675. A general contractor's license was required for the BKC

5056job for it involved the demolition of a structure over 50 feet

5068tall. The services of a general contractor are unlimited.

5077Schwab, who contracted with BKC, was notified of this requirement

5087and contacted Respondent to be the general contractor for the


509876. Petitioner has demonstrated that Respondent violated

5105Subsections 455.227(1)(a), 489.129(1)(c), (e), and (j), and

5112489.1265(3). The contract for the demolition of the BKC

5121structure was between BKC, the owner of the structure, and the

5132unlicensed person or entity, not between BKC and Respondent who

5142was licensed as a general contractor. The unlicensed person or

5152entity engaged in the practice of contracting. Moreover, after

5161the contract for the demolition was entered into, Respondent made

5171an agreement with the unlicensed person, not the owner of the

5182structure, to be the contractor on the job. Respondent made

5192application for the building permit, representing that his

5200company was the contractor for the job, obtained the permit, and

5211supervised the demolition. Without Respondent's license the

5218unlicensed person or entity could not have obtained the permit

5228and engaged in the demolition of the structure. Respondent knew

5238or should have known that the unlicensed person was not licensed

5249to perform the demolition of the structure.

525677. Regarding penalty, Rule 61G4-17.001, Florida

5262Administrative Code, provides in pertinent part:

5268The following guidelines shall be used in

5275disciplinary cases, absent aggravating or

5280mitigating circumstances and subject to other

5286provisions of this Chapter.

5290* * *

5293(3) 489.129(1)(c): Violating any part of

5299Chapter 455. Penalty within ranges prescribed

5305by Section 455.227, unless otherwise

5310prescribed herein.

5312(a) 455.227(1)(a): Fraud, deceit,

5316misleading, or untrue representations. First

5321violation, $1,000 to $3,000 fine and/or

5329probation, suspension, or revocation; repeat

5334violation, revocation and $5,000 fine.

5340* * *

5343(5) 489.129(1)(e): Assisting unlicensed

5347person to evade provision of Chapter 489.

5354First violation, $500 to $2,500 fine; repeat

5362violation, $2,500 to $5,000 fine and/or

5370probation, suspension, or revocation.

5374* * *

5377(10) 489.129(1)(j): Failing in any material

5383respect to comply with the provisions of Part

5391I of Chapter 489. . . .

539878. No specific penalty guideline is set forth in the Rule

5409for a violation of Subsection 489.129(1)(j) which coincides with

5418the grounds specified in the administrative complaint. Further,

5426the Rule does not set forth a guideline for a violation of

5438Subsection 489.1265(3).

544079. However, Rule 61G4-17.001 provides further in pertinent


5449(22) The absence of any violation from this

5457Chapter shall be viewed as an oversight, and

5465shall not be construed as an indication that

5473no penalty is to be assessed. The Guideline

5481penalty for the offense most closely

5487resembling the omitted violation shall apply.

549380. The offense most closely resembling the omitted

5501violation of Subsection 489.1265(3) is a violation of Subsection

5510489.129(1)(e). The conduct of Respondent obtaining a building

5518permit for the demolition job when he had not entered into a

5530contract with the owner of the structure to be demolished closely

5541resembles the act of assisting an unlicensed person or entity to

5552engage in the practice of contracting.

555881. Pursuant to Rule 61G4-17.002, Florida Administrative

5565Code, Petitioner may consider aggravating and mitigating

5572circumstances. Rule 61G4-17.002 provides:

5576Circumstances which may be considered for the

5583purposes of mitigation or aggravation of

5589penalty shall include, but are not limited

5596to, the following:

5599(1) Monetary or other damage to the

5606licensee's customer, in any way associated

5612with the violation, which damage the licensee

5619has not relieved, as of the time the penalty

5628is to be assessed. (This provision shall not

5636be given effect to the extent it would

5644contravene federal bankruptcy law.)

5648(2) Actual job-site violations of building

5654codes, or conditions exhibiting gross

5659negligence, incompetence, or misconduct by

5664the licensee, which have not been corrected

5671as of the time the penalty is being assessed.

5680(3) The severity of the offense.

5686(4) The danger to the public.

5692(5) The number of repetitions of offenses.

5699(6) The number of complaints filed against

5706the licensee.

5708(7) The length of time the licensee has


5717(8) The actual damage, physical or

5723otherwise, to the licensee's customer.

5728(9) The deterrent effect of the penalty


5736(10) The effect of the penalty upon the

5744licensee's livelihood.

5746(11) Any efforts at rehabilitation.

5751(12) Any other mitigating or aggravating


575882. As aggravating factors, circumstances (3), (4), and

5766(11) should be considered. Respondent has expressed his belief

5775and practice that a licensed contractor can obtain a building

5785permit for a job that neither the contractor nor the company that

5797the contractor qualifies has entered into a contract with the

5807property owner. Respondent maintained this position up to and

5816during hearing. Such practice is contrary to the practice act

5826for contracting. Respondent's willingness to conduct himself

5833contrary to the practice act for contracting presents a danger to

5844the public and fails to demonstrate any rehabilitation on the

5854part of Respondent.

585783. As a mitigating factor, circumstance (7) should be

5866considered. Respondent has been licensed for approximately 28

5874years with no disciplinary action by Petitioner.


5882Based on the foregoing Findings of Fact and Conclusions of

5892Law, it is

5895RECOMMENDED that the Construction Industry Licensing Board

5902enter a final order:

59061. Dismissing all counts in Case Nos. 97-1435 and 97-1436.

59162. Finding that Arthur Signore violated Subsections

5923489.129(1)(c), (e), and (j), 489.1265(3), and 455.227(1)(a),

5930Florida Statutes (1995).

59333. Revoking Arthur Signore's certified general contractor's


59414. Requiring Arthur Signore to pay all reasonable costs of

5951investigation and prosecution associated with the Department of

5959Business and Professional Regulation's investigation and

5965prosecution of the charges set forth in the Administrative

5974Complaint of Case No. 97-2998. 3

5980DONE AND ENTERED this 13th day of January, 1998, in

5990Tallahassee, Leon County, Florida.



5998Administrative Law Judge

6001Division of Administrative Hearings

6005The DeSoto Building

60081230 Apalachee Parkway

6011Tallahassee, Florida 32399-3060

6014(850) 488- 9675 SUNCOM 278-9675

6019Fax Filing (850) 921-6847

6023Filed with the Clerk of the

6029Division of Administrative Hearings

6033this 13th day of January, 1998.


60401/ Petitioner alleged in Count I, paragraph number 8 of the

6051Administrative Complaint the following: "8. On or about

6059April 26, 1994, the Respondent obtained the permit for the

6069Customer's project."

60712/ Petitioner alleged in Count I, paragraph numbered 8 of the

6082Administrative Complaint the following: "8. On or about

6090December 11, 1995, the Respondent obtained the permit for the

6100Customer's project from the Village of Key Biscayne."

61083/ Rule 61G4-12.018, Florida Administrative Code, requires the

6116Department of Business and Professional Regulation to "submit to

6125the Board an itemized listing of all costs related to

6135investigation and prosecution of an administrative complaint when

6143said complaint is brought before the Board for final agency

6153action." Fundamental fairness requires that the Board provide

6161Respondent an opportunity to dispute and challenge the accuracy

6170and/or reasonableness of the itemization of investigative and

6178prosecutorial costs before the Board determines the amount of

6187costs Respondent will be required to pay.


6196Theodore R. Gay, Esquire

6200Department of Business and

6204Professional Regulation

6206401 Northwest 2nd Avenue, Suite N-607

6212Miami, Florida 33128

6215Sean J. Green, Esquire

6219Benjamin R. Jacobi, Esquire

62231313 Northeast 125th Street

6227North Miami, Florida 33161

6231Rodney Hurst, Executive Director

6235Construction Industry Licensing

62387960 Arlington Expressway, Suite 300

6243Jacksonville, Florida 32211-7467

6246Lynda L. Goodgame, General Counsel

6251Department of Business and

6255Professional Regulation

62571940 North Monroe Street

6261Northwood Centre

6263Tallahassee, Florida 32399-0792


6272All parties have the right to submit written exceptions within 15

6283days from the date of this recommended order. Any exceptions to

6294this recommended order should be filed with the agency that will

6305issue the final order in this case.

Select the PDF icon to view the document.
Date: 05/06/1998
Proceedings: Final Order filed.
Date: 04/24/1998
Proceedings: Agency Final Order
Date: 04/24/1998
Proceedings: Recommended Order
Date: 01/13/1998
Proceedings: Recommended Order sent out. CASE CLOSED. Hearing held 09/02/97.
Date: 10/20/1997
Proceedings: Respondent`s Proposed Recommended Order filed.
Date: 10/15/1997
Proceedings: Petitioner`s Proposed Recommended Order filed.
Date: 09/19/1997
Proceedings: Notice of Filing Transcript sent out.
Date: 09/17/1997
Proceedings: (I Volume) Transcript of Proceedings filed.
Date: 09/02/1997
Proceedings: CASE STATUS: Hearing Held.
Date: 08/25/1997
Proceedings: (Joint) Prehearing Stipulation (filed via facsimile).
Date: 08/25/1997
Proceedings: CC: Letter to Benjamin Jacobi from Theordore Gay (RE: proposed draft of prehearing stipulation) (filed via facsimile).
Date: 08/20/1997
Proceedings: (Petitioner) Notice of Taking Deposition (filed via facsimile).
Date: 07/23/1997
Proceedings: Order Rescheduling Hearing sent out. (hearing set for Sept. 2-3, 1997; 10:30am; Miami)
Date: 07/21/1997
Proceedings: (Petitioner) Status Report (filed via facsimile).
Date: 07/10/1997
Proceedings: Order Granting Continuance sent out. (hearing cancelled)
Date: 07/10/1997
Proceedings: Order Requiring Response sent out. (parties to file available hearing dates within 10 days)
Date: 07/10/1997
Proceedings: Order of Consolidation sent out. (Case(s) CN002679 : for 97-1435, 97-1436 & 97-2998)
Date: 07/03/1997
Proceedings: Petitioner`s Motion to Consolidate and Response to Motion for Continuance (97-1435 and 97-1436); Motion to Consolidate (Petitioner`s; 97-2998 consolidated with 97-1435 and 97-1436) filed.
Date: 07/03/1997
Proceedings: Petitioner`s Motion to Consolidate and Response to Motion for Continuance (filed via facsimile).
Date: 04/21/1997
Proceedings: Order of Consolidation sent out. (Cases consolidated are: 97-1435 & 97-1436) CN002679
Date: 04/21/1997
Proceedings: Notice of Hearing sent out. (hearing set for 7/2/97; 9:00am; Miami)
Date: 04/21/1997
Proceedings: Prehearing Order sent out.
Date: 04/08/1997
Proceedings: (Petitioner) Response to Initial Order (filed via facsimile).
Date: 03/27/1997
Proceedings: Initial Order issued.
Date: 03/21/1997
Proceedings: Agency Referral letter; Administrative Complaint; Election of Rights filed.

Case Information

Date Filed:
Date Assignment:
Last Docket Entry:
Miami, Florida

Related DOAH Cases(s) (1):

Related Florida Statute(s) (6):

Related Florida Rule(s) (3):