Alles v. Department of Professional Regulation, Const. Industry Licensing Bd.

• Decision Date: 22 December 1982
• Docket Number: No. 82-332,82-332
• Citation: 423 So.2d 624
• Parties: Bruce ALLES, Appellant, v. DEPARTMENT OF PROFESSIONAL REGULATION, CONSTRUCTION INDUSTRY LICENSING BOARD, Appellee.
• Court: Florida District Court of Appeals

Page 624

423 So.2d 624

Bruce ALLES, Appellant, v. DEPARTMENT OF PROFESSIONAL REGULATION, CONSTRUCTION INDUSTRY LICENSING BOARD, Appellee.

No. 82-332.

District Court of Appeal of Florida,

Fifth District.

Dec. 22, 1982.

Joe Teague Caruso of Wolfe, Kirschenbaum, Caruso, Mosley & Kabboord, P.A., Cocoa Beach, for appellant.

Michael E. Egan of Roberts, Egan & Routa, P.A., Tallahassee, for appellee.

COWART, Judge.

This case involves the question as to what extent an administrative agency is bound by the findings of fact and conclusions of law of an administrative hearing officer.

Univel, Inc., was general contractor for the erection of the Harbor Cay Condominium in Cocoa Beach, Florida, which structure totally collapsed during construction with great loss of life. Appellant, Bruce Alles, was the "qualifying agent" for Univel at the time of the collapse. However, Univel had an arrangement with Dynamic Construction Co. as to the Harbor Cay project, and, instead of having Alles supervise that project, the designated agent of Dynamic Construction, Lawrence M. Stoner, obtained the building permit and was the actual supervising authority of the construction on that project.

After the tragic collapse, appellee, the Construction Industry Licensing Board (Board) of the Department of Professional Regulation (Department), filed an administrative complaint against Alles, seeking to revoke or suspend his contractor's license or to take other administrative action. The issue was framed by the Board's contention that Alles, as Univel's qualifying agent, had statutory duties to affix his license number to the bids and contracts for the Harbor Cay project and to supervise and be professionally responsible for construction of that project. The facts were undisputed that Alles had failed to do those things. On the other hand, Alles pleaded that "he had no involvement at any time with any phase of the Harbor Cay project" and contended that Stoner was the "de facto" qualifying agent for Univel, although Stoner was not registered with the appellee Department as a qualifying agent for Univel. The hearing examiner found the facts as stated because they were not in dispute, but as a conclusion of law the hearing examiner found that although the statute did place a duty on the qualifying agent to affix his license number on all bids and contracts of his company, the statute placed no affirmative duty on a qualifying agent to supervise his company's projects. The appellee Board, reviewing the hearing officer's order, approved and adopted his findings of fact but rejected his conclusion that the statute places no duty on a qualifying agent to supervise his corporate principal's construction projects. Alles appeals that action.

Section 120.57(1)(b)9, Florida Statutes (1979), provides:

The agency may adopt the recommended order as the agency's final order. The agency in its final order may reject or modify the conclusions of law and interpretation of administrative rules in the recommended order, but may not reject or modify the findings of fact unless the agency first determines from a review of the complete record, and states with particularity in the order, that the findings of fact were not based upon competent substantial evidence or that the proceedings on which the findings were based did not comply with essential requirements of law.

It is clear from this that the hearing officer's findings of fact may not be overturned by the Board unless the findings of fact are not supported by competent, substantial evidence. Moore v. Florida Construction Industry Licensing Board, 356 So.2d 19 (Fla. 4th DCA 1978); Harvey v. Nuzum, 345 So.2d 1106 (Fla. 1st DCA 1977); Campbell v. State, Department of Transportation, 326 So.2d 66 (Fla. 4th DCA 1976). Appellant argues, however, that conclusions of law likewise cannot be overturned by the Board without a specific finding that those conclusions are either not supported by substantial competent evidence or were arrived at in a proceeding which departed from the essential requirements of law, citing Feldman v. Department of Transportation, 389 So.2d 692 (Fla. 4th DCA 1980), Tampa Wholesale Liquors, Inc. v. Division of Alcoholic Beverages and Tobacco, Department of Business Regulation, 376 So.2d 1195 (Fla. 2d DCA 1979), Lord Chumley's of Stuart, Inc. v....