10-001133 Pinellas County Construction Licensing Board vs. Louise Wold-Parente Status: Closed Recommended Order on Wednesday, October 20, 2010.

Summary: Respondent pulled permits for an unlicensed person or entity, thereby, assisting the person in the practice of contracting.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

PINELLAS COUNTY CONSTRUCTION )

LICENSING BOARD , )

)

Petitioner , )

)

vs. ) Case Nos. 10 - 1133

) 10 - 1134

LOUISE WOLD - PARENTE , )

)

Respondent . )

)

RECOMMENDED ORDER

Pursuant to notice, a final hearing was held in these cases

before J. D. Parrish, an Administrative Law Judge of the

Division of Administrative Hearings (DOAH), on September 3,

2010, by video teleconference between sites in St. Pe tersburg

and Tallahassee, Florida.

APPEARANCES

For Petitioner: Jason C. Ester, Esquire

Pinellas County AttorneyÓs Office

315 Court Street, Sixth Floor

Clearwater, Florida 33756 - 5165

For Respondent: Wa rren J. Knaust, Esquire

Knaust & Associates, P. A.

2167 Fifth Avenue, North

St. Petersburg, Florida 337 13 - 8013

STATEMENT OF THE ISSUES

The issues in these cases are whether Respondent, Louise

Wold - Paren te (Respondent), committed the violations alleged in

the Administrative Complaints dated January 30, 2010, and, if

so, what penalty should be imposed.

PRELIMINARY STATEMENT

Petitioner, Pinellas County Construction Licensing Board

(Petitioner or Board) , en tered an Administrative Complaint on

January 30, 2010, against Respondent that alleged she had

assisted a person or entity in the practice of contracting that

was neither certified nor registered to practice contracting.

More specifically, Petitioner clai med that Respondent submitted

a permit application for the construction of a single - family

residence , that a permit was issued for the construction, but

that a non - licensed person or entity was to build the home. The

home is designated as the ÐLevitzÑ hom e in the record. This

Administrative Complaint was forwarded to DOAH for formal

proceedings and assigned DOAH Case No. 10 - 1133.

A second Administrative Complaint filed by Petitioner on

January 30, 2010, made the same allegations and related to a

home desi gnated in the record as ÐWendlek.Ñ The Administrative

Complaint pertinent to the Wendlek home was also forwarded to

DOAH and assigned DOAH Case No. 10 - 1134. The cases were

consolidated for hearing.

As to both cases, Respondent timely challenged the mater ial

factual allegations. Only the allegations related to Count I of

each complaint remain at issue. Petitioner voluntarily

dismissed Counts II and III of each of the complaints.

At the hearing, three witnesses testified on behalf of

Petitioner: Rodney F ischer, e xecutive d irector for Petitioner;

Connie Wendlek, a property owner for whom a home was to be

built; and Alan Levitz, another property owner for whom a home

was to be constructed. PetitionerÓs Exhibits A through D were

admitted into evidence. Res pondent appeared with counsel for

the hearing.

A t ranscript of the proceeding has not been filed. The

parties were afforded the opportunity to file p roposed

r ecommended o rders. The parties timely filed proposed order s

that ha ve been considered in the p repa ration of this Recommended

O rder .

FINDINGS OF FACT

1. Petitioner is the entity charged by law to regulate and

discipline locally - licensed contractors doing business in

Pinellas County, Florida.

2. At all times material to the allegations of these

c ases, Respondent held a license as a general contractor,

license number I - CGC1251933, issued by Petitioner.

3. On or about November 30, 2005, Respondent, on behalf of

Signature Built Construction, filed a permit application for a

single - family home to be constructed for Richard and Constance

Wendlek. The contract for the construction of the Wendlek home

identified Signature Built by David Helms, Inc. , as the

ÐbuilderÑ or ÐsellerÑ of the home. Further, the contract stated

that Signature Built Construction , Inc., license numbers

CBC1251933/QB32131 , was the Ðcontractor/builderÑ of record for

Signature Built by David Helms, Inc.

4. On or about August 14, 2006, Respondent filed a permit

application for a single - family home to be built for Alan and

Elaine Le vitz. The contractor for the permit was identified as

Signature Built Construction. The contract for the Levitz home

was executed between Signature Built by David Helms, Inc. , as

ÐbuilderÑ or ÐsellerÑ with Signature Built Construction, Inc.,

license numb ers CBC1251933/QB32131 , as the Ðcontractor/builderÑ

of record for Signature Built by David Helms, Inc.

5. At all times material to the allegations, Respondent

was not the qualifying contractor for Signature Built by David

Helms, Inc. There is no evidence that Respondent and Signature

Built by David Helms, Inc. , have entered into an agreement to

engage Respondent as the qualifying contractor for Signature

Built by David Helms, Inc. Further, there is no evidence that

David Helms individually, or through Si gnature Built by David

Helms, Inc . , was authorized to act on behalf of Signature Built

Construction, Inc. , or Respondent.

6. Respondent did not execute the contracts with Levitz

and Wendlek. There is no evidence that anyone associated with

Signature Buil t Construction, Inc. , executed the contracts with

Levitz and Wendlek. Neither Levitz nor Wendlek knew Respondent

or had any dealings with her.

7. The Levitz and Wendlek contracts were negotiated and

performed (to the extent that they were performed) by D avid

Helms or Signature Built by David Helms, Inc.

8. Respondent is the qualifying agent for Signature Built

Construction, Inc. , but neither Respondent nor Signature Built

Construction, Inc. , was bound by the contracts with Levitz and

Wendlek.

9. The A dministrative Complaints filed against Respondent

claim that she improperly obtained the building permits for the

Wendlek and Levitz homes. It is determined that Respondent

facilitated an unlicensed entity or individual, David Helms or

Signature Built by David Helms, Inc., to engage in contracting

without first being properly licensed or authorized as provided

by law.

CONCLUSIONS OF LAW

10. The Division of Administrative Hearings has

jurisdiction over the parties to and subject matter of these

proceedin gs. See §§ 120.569 and 120.57(1), Fla. Stat. (20 10 ).

11. Petitioner bears the burden of proof to establish by

clear and convincing evidence that Respondent engaged in the

conduct complained of in Count I of the Administrative

Complaints. See Department of Banking and Finance, Division of

Securities and Investor Protection v. Osborne Stern and Co. , 670

So. 2d 932 (Fla. 1996); and Ferris v. Turlington , 510 So. 2d 292

(Fla. 1987).

12. ÐClear and convincing evidence,Ñ as defined in Evans

Packing Co. v. Depa rtment of Agriculture and Consumer Services ,

550 So. 2d 112, 116 n. 5 (Fla. 1 st DCA 1989), requires:

. . . that the evidence must be found to be

credible; the facts to which the witnesses

testify must be distinctly remembered; the

evidence 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 the firm belief or

conviction, without hesitancy, as to the

truth of the allegation s sought to be

established. Slomowitz v. Walker , 429 So.

2d 800 (Fla. 4 th DCA 1983).

13. Respondent may impose administrative sanctions against

any licensee found to be in violation of law. Pinellas County

Code Section 26 - 129(b ) ( 5) authorizes discipl inary 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 kn ow that the person or entity

was uncertified and unregistered.

14. Section 489.129, Florida Statutes (2009) , provides, in

pertinent part:

(1) The board may take any of the following

actions against any certificate holder or

registrant: place on proba tion or reprimand

the licensee, revoke, suspend, or deny the

issuance or renewal of the certificate or

registration, require financial restitution

to a consumer for financial harm directly

related to a violation of a provision of

this part, impose an admin istrative 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

prim ary 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 th e

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.

(e) Knowingly combining or conspiring with

an uncertified or unregistered person by

allowing his or her certificate or

registration to be used by the uncertified

or unregistered person with intent to evade

the provisions of this part. When a

certificate holder or registrant allows his

or her certific ate or registration to be

used by one or more business organizations

without having any active participation in

the operations, management, or control of

such business organizations, such act

constitutes prima facie evidence of an

intent to evade the provi sions of this part.

(f) Acting in the capacity of a contractor

under any certificate or registration issued

hereunder except in the name of the

certificate holder or registrant as set

forth on the issued certificate or

registration, or in accordance with the

personnel of the certificate holder or

registrant as set forth in the application

for the certificate or registration, or as

later changed as provided in this part.

15. S ubs ection 489.117(4 )( c), Florida Statutes (2009) ,

authorizes Petitioner to dis cipline locally - licensed contractors

such as Respondent.

16. By obtaining the building permits for the Levitz and

Wendlek homes, Respondent assisted an uncertified and

unregistered person or entity to practice contracting in

violation of law. Petitioner has established by clear and

convincing evidence that Respondent must be disciplined for such

violation.

17. Disciplinary guidelines for Petitioner are located in

Pinellas County Code Section 26 - 129(e)(3) and authorize the

imposition of suspension, revo cation, administrative fine,

restitution, and/or reasonable investigative and legal costs.

In this case , Petitioner has proposed an administrative fine in

the amount of $1,000 .00 per case with the assessment of legal

and investigative costs added thereto. While such penalty seems

excessively lenient to the undersigned , it is within the

guidelines set forth by the Pinellas County Code.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions

of Law, it is RECOMMENDED that the Board enter a final order

finding Respondent in violation of Count I as to both

Administrative Complaints, dismissing the other abandoned

counts, and imposing an administrative fine in the amount of

$2 , 000.00 together with legal and investigative costs of the

proceedin gs.

DONE AND ENTER ED this 20th day of October , 2010 , in

Tallahassee, Leon County, Florida.

S

J. D. PARRISH

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallaha ssee, Florida 32399 - 3060

(850) 488 - 9675

Fax Filing (850) 921 - 6847

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 20th day of October , 2010 .

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

Licensi ng 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 s hould be filed with the agency that

will issue the Final Order in this case.