08-004473 Pinellas County Construction Licensing Board vs. Louise Wold-Parente Status: Closed Recommended Order on Thursday, February 19, 2009.

Summary: Contractor pulled permit for unlicensed builder. Recommend a fine.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

PINELLAS COUNTY CONSTRUCTION )

LICENSING BOARD, )

)

Petitioner, )

)

vs. ) Case No. 08-4473

)

LOUISE WOLD-PARENTE, )

)

Respondent. )

)

RECOMMENDED ORDER

On January 21, 2009, an administrative hearing in this case

was conducted in Largo, Florida, before William F. Quattlebaum,

Administrative Law Judge, Division of Administrative Hearings.

APPEARANCES

For Petitioner: Jason Ester, Esquire

Pinellas County Attorney’s Office

315 Court Street, Sixth Floor

Clearwater, Florida 33756-5165

For Respondent: Warren J. Knaust, Esquire

Knaust & Associates, P.A.

2167 Fifth Avenue, North

St. Petersburg, Florida 33713

STATEMENT OF THE ISSUES

The issues in this case are whether the allegations of the

Administrative Complaint are correct, and, if so, what penalty

should be imposed.

PRELIMINARY STATEMENT

By Administrative Complaint dated August 15, 2008, the

Pinellas County Construction Licensing Board (Petitioner)

alleged that Louise Wold-Parente (Respondent), a licensed

general contractor, obtained a permit for the construction of a

dwelling on behalf of an unlicensed contractor and that there

was no workers' compensation coverage applicable to the project.

The Respondent requested a formal hearing. The Petitioner

forwarded the appeal to the Division of Administrative Hearings,

which scheduled and conducted the administrative hearing.

At the hearing, the Petitioner presented the testimony of

two witnesses and had Exhibits numbered 1 through 3 admitted

into evidence. The Respondent did not appear at the hearing,

but was represented by counsel who presented the testimony of

one witness.

No transcript of the hearing was filed. Both parties filed

Proposed Recommended Orders that were reviewed in the

preparation of this Recommended Order.

FINDINGS OF FACT

1. At all times material to this case, the Respondent was

a general contractor, holding license CGC1251933 issued by the

Petitioner.

2. At all times material to this case, the Respondent was

the qualifying contractor for "Signature Built Construction,

Inc.," located at 1349 Admiral Woodson Lane, Clearwater,

Florida, 33755.

3. In May 2008, a complaint was filed against David Helms

and "Signature Built by David Helms, Inc.," related to alleged

problems between Mr. Helms and purchasers of a dwelling (the

Wolbert residence).

4. The Respondent is not a qualifying contractor for

Signature Built by David Helms, Inc.

5. Neither Mr. Helms nor Signature Built by David Helms,

Inc., is a licensed contractor.

6. Signature Built Construction, Inc., and Signature Built

by David Helms, Inc., are two separate Florida corporations.

7. There is no credible evidence that the two corporations

have entered into any formal joint venture agreement or have

become legally qualified to enter into joint construction

contracts or to obtain joint building permits.

8. The specific allegations of the complaint between the

purchasers of the Wolbert residence and Mr. Helms are immaterial

to this proceeding.

9. The first page of the "Building and Purchase Agreement"

for construction of the Wolbert residence identifies Signature

Built by David Helms, Inc., as the "Builder" or "Seller," but

further states as follows:

Signature Built Construction, Inc., license

numbers CBC1251933/QB32131 is the

Contractor/Builder of record for Signature

Built by David Helms, Inc. and is joined

under this agreement.

10. The Respondent's signature does not appear on the

Building and Purchase Agreement.

11. There is no credible evidence that the Respondent was

legally bound by the Building and Purchase Agreement.

12. The Administrative Complaint at issue in this

proceeding alleges that the Respondent improperly obtained the

permit for the Wolbert residence construction project on behalf

of Signature Built by David Helms, Inc.

13. The evidence establishes that the Respondent obtained

the building permit for construction of the Wolbert residence

pursuant to the Building and Purchase Agreement between the

purchasers and Signature Built by David Helms, Inc.

14. The Administrative Complaint alleges that the

Respondent failed to maintain workers' compensation insurance

for the construction of the Wolbert residence and, therefore,

committed "fraud or deceit or gross negligence, incompetency or

misconduct in the practice of contracting."

15. The evidence fails to establish that the Respondent

did not maintain workers' compensation coverage for construction

of the Wolbert residence.

CONCLUSIONS OF LAW

16. The Division of Administrative Hearings has

jurisdiction over the parties to and subject matter of this

proceeding. §§ 120.569 and 120.57(1), Fla. Stat. (2008).

17. In this case, the Petitioner bears the burden of

proving by clear and convincing evidence that the Respondent

engaged in the conduct, and thereby committed the violations,

alleged in the Administrative Complaint. Department of Banking

and Finance, Division of Securities and Investor Protection v.

Osborne Stern and Company , 670 So. 2d 932, 935 (Fla. 1996);

Ferris v. Turlington , 510 So. 2d 292, 294 (Fla. 1987). For

proof to be considered "'clear and convincing' . . . the

evidence must be found to be credible; the facts to which the

witnesses testify must be distinctly remembered; the testimony

must be precise and explicit and the witnesses must be lacking

in confusion as to the facts in issue. The evidence must be of

such weight that it produces in the mind of the trier of fact a

firm belief or conviction, without hesitancy, as to the truth of

the allegations sought to be established." Slomowitz v. Walker ,

429 So. 2d 797, 800 (Fla. 4th DCA 1983). "Although this

standard of proof may be met where the evidence is in conflict,

. . . it seems to preclude evidence that is ambiguous."

Westinghouse Electric Corporation, Inc. v. Shuler Bros., Inc. ,

590 So. 2d 986, 989 (Fla. 1st DCA 1991). The evidence clearly

establishes that the Respondent obtained a building permit for

the construction of the Wolbert residence.

18. Subsection 489.129(1)(d), Florida Statutes (2008),

provides as follows:

The board may take any of the following

actions against any certificateholder or

registrant: place on probation or reprimand

the licensee, revoke, suspend, or deny the

issuance or renewal of the certificate,

registration, or certificate of authority,

require financial restitution to a consumer

for financial harm directly related to a

violation of a provision of this part,

impose an administrative fine not to exceed

$10,000 per violation, require continuing

education, or assess costs associated with

investigation and prosecution, if the

contractor, financially responsible officer,

or business organization for which the

contractor is a primary qualifying agent, a

financially responsible officer, or a

secondary qualifying agent responsible under

s. 489.1195 is found guilty of any of the

following acts:

* * *

(d) 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.

19. Pinellas County Code Section 26-129(b)(5) provides for

disciplinary action against a licensee for "performing any act

which assists a person or entity in engaging in the prohibited

uncertified and unregistered practice of contracting, if the

certificate holder or registrant knows or has reasonable grounds

to know that the person or entity was uncertified and

unregistered."

20. By obtaining the permit for the construction of the

Wolbert residence pursuant to the Building and Purchase

Agreement executed between the purchasers and Signature Built by

David Helms, Inc., the Respondent assisted in the uncertified

and unregistered practice of contracting, in violation of the

referenced statute and code provision.

21. The Administrative Complaint alleges that the

Respondent failed to maintain workers' compensation insurance

for the construction of the Wolbert residence and, therefore,

committed "fraud or deceit or gross negligence, incompetency or

misconduct in the practice of contracting." The evidence fails

to support the allegation. It should be noted that the

Petitioner's Proposed Recommended Order acknowledges that the

Respondent's workers' compensation coverage was applicable to

all projects for which the Respondent obtained the permit.

22. Pinellas County Code Section 26-129(e)(3) sets forth

the guidelines for disciplinary penalties against licensees and

provides as follows:

The board is authorized to take the

following disciplinary action:

(1) Suspend the certificate holder or

registrant from all operations as a

contractor during the period fixed by the

board, but the board may permit the

certificate holder or registrant to complete

any contracts then uncompleted.

(2) Revoke a certificate or registration.

(3) Impose an administrative fine or

penalty not to exceed $1,000.00 (which shall

be recoverable by the board only in an

action at law).

(4) Require restitution and impose

reasonable investigative and legal costs.

23. The recommended penalty set forth herein reflects the

referenced guidelines.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is RECOMMENDED that the Petitioner enter a final order

determining that the Respondent has committed the violation of

statute and code provisions as set forth herein and providing for

a fine of $1,000.00 and assessing legal costs.

DONE AND ENTERED this 19th day of February, 2009, in

Tallahassee, Leon County, Florida.

S

WILLIAM F. QUATTLEBAUM

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

[phone]

Fax Filing [phone]

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 19th day of February, 2009.

COPIES FURNISHED :

Jason Ester, Esquire

Pinellas County Attorney’s Office

315 Court Street, Sixth Floor

Clearwater, Florida 33756-5165

Warren J. Knaust, Esquire

Knaust & Associates, P.A.

2167 Fifth Avenue, North

St. Petersburg, Florida 33713

Rodney S. Fischer, Executive Director

Pinellas County Construction

Licensing Board

12600 Belcher Road, Suite 102

Largo, Florida 33773

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.