STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

FLORIDA CONSTRUCTION INDUSTRY ) LICENSING BOARD, )

)

Petitioner, )

)

vs. ) CASE NO. 75-2111

)

BOYD L. JONES, )

)

Respondent. )

)

RECOMMENDED ORDER

A hearing was held in the above-captioned matter, after due notice to the parties, at Tallahassee, Florida, on March 22, 1976, before the undersigned Hearing Officer.

APPEARANCES

For Petitioner: Barry Sinoff, Esquire

Blackstone Building

233 East Boy Street, Suite 1010 Jacksonville, Florida 32202

For Respondent: Respondent appeared in his own behalf

ISSUE PRESENTED

Whether Respondent's license as a building contractor should be suspended for alleged violation of Section 468.112(2)(a) & (f), Florida Statutes.

At the commencement of the hearing, Respondent was advised by the hearing officer of his right to legal counsel and other rights under the Administrative Procedure Act. The Respondent indicated his understanding of these rights and stated that he did not desire counsel at the hearing.

Counsel for Petitioner moved to amend Paragraph 3 of the Complaint to reflect that the Respondent had been suspended by the Wakulla County Construction Industry Licensing Appeals and Examining Board on August 29, 1974, rather than September 11, 1974, as stated in the Complaint. The Motion was granted.

At the conclusion of the hearing, and at the request of both parties, the hearing officer agreed to withhold submission of a Recommended Order for a period of sixty (60) days after the date of hearing in order to permit a possible settlement of the matter. However, the hearing officer was informed by a letter from counsel for the Petitioner, dated June 4, 1976, that the matter bad not been resolved.

FINDINGS OF FACT

1. Respondent is registered as a building contractor, No. 0012976, and is licensed by the Petitioner to do business as an individual. (Administrative Complaint)

   
   

2. Respondent built a residence at Panacea, Florida, that was purchased by Joseph Jones in September, 1973. The purchaser's complaints concerning minor defects discovered after moving into the house were promptly corrected by Respondent. About two months after the house was built, purchaser called the Respondent and told him that there was an odor in the house. Respondent checked into this and found that the pipes into the septic tank had been installed upside down by the plumbing subcontractor, causing odors from the septic tank to come back into the house. The Respondent obtained a plumbing contractor from Tallahassee to change the piping to the ultimate satisfaction of the purchaser. In December, 1973, the purchaser and his wife departed for the Philippines for a period of about six months, returning in July, 1974. While there, the purchaser's wife wrote a letter to the Wakulla County Construction Industry Licensing Appeals and Examining Board (hereinafter Wakulla County Board) concerning the odor in the house, since it apparently had not been corrected prior to the purchaser's departure to the Philippines. Although Wakulla County did not require inspections of newly-constructed homes in the fall of 1973, it did require that homes be constructed according to building, plumbing, and electrical codes. It enforced such codes when complaints were submitted. As a result of the letter from the purchaser's wife, the members of the board inspected the house in question at an undetermined time between February and June 1974. As a result of their inspection, it was found that certain items needed remedial action, as follow:

   
   

   1. Hurricane anchors to be installed on ceiling joists.

   2. Cross bridging to be installed on floor joists.

   3. Reinforce notched floor joists.

   4. Plumbing waste and vent lines brought up to code requirements. (Testimony of Respondent, Joseph Jones, Barbree, Petitioner's Composite Exhibit 1)

      
      

3. By letter of June 26, 1976, dispatched by ordinary mail, Respondent was advised by the Wakulla County Board of the above-stated deficiencies, and was requested to advise as to his intention of complying with the stated requirements and to set a date for job completion. Although Respondent claims that he never received this letter probably due to the fact that there are four persons with the name of Jones who are located on Thomasville Road in his vicinity, it appears that the letter was sent to his registered business address and was not returned to the sender. Not hearing from Respondent in response to its June 26 letter, the Wakulla County Board, on August 29, 1974, suspended his local contractor's registration. Although no term of suspension was noted in the minutes of the Wakulla County Board, such a suspension remains in effect until the particular deficiencies are corrected and the suspended contractor requests removal of the suspension. By registered letter, dated September 11, 1974, Respondent was informed of the suspension by the Wakulla County Board. (Testimony of Respondent, Barbree, Petitioner's Composite Exhibit 1, Petitioner's Exhibit 2)

4. Respondent testified that he had been unaware of any complaints other than the plumbing odor and vibration in the flooring (which he had attempted to remedy by installing support beams) until he received the Notice of Suspension. He did not do anything further with a view to correcting the alleged deficiencies because he did not intend to do further work in Wakulla County and, as far as he knew, the purchaser was satisfied with the house. He conceded that he should have contacted the Wakulla County Board when he received the letter of suspension. At the hearing, he agreed to correct anything that was still deficient and, in fact, only the alleged excessive floor vibration remains as a possible deficiency. (Testimony of Jones, Hearing Officer's Exhibit 1)

   
   

5. Respondent's reputation as a builder in the Tallahassee area is very satisfactory. (Respondent's Exhibit 1)

   
   

   CONCLUSIONS OF LAW

   
   

6. Petitioner seeks to suspend Respondent's license as a building contractor for violation of the following statutory provisions:

   
   

   "468.112 Revocation or suspension or certificate or registration.-

   
   

   1. ...The Board may take appropriate disci- plinary action if the contractor is found to be guilty of or has committed any one or more of the acts or omissions constituting cause for disciplinary action set out herein or adopted as rules or regulations by the board.

   2. The following acts constitute cause for disciplinary action:

      1. Willful or deliberate disregard and violation of the applicable building codes or laws of the state or any municipalities, cities or counties thereof.

   * * *

   (f) Disciplinary action by any municipality, city, or county, which action shall be re- viewed by the state board before the state board takes any disciplinary action of its own.

   
   

7. As to the alleged violation of Section 468.112(2)(a), no evidence was adduced to establish that any violations by the Respondent of the applicable building codes or laws of Wakulla County were deliberately disregarded by the Respondent with respect to his construction of the house in Panacea, Florida. Accordingly, it is concluded that Respondent did not violate this provision of the law.

   
   

8. As to Section 468.112(2)(f), the evidence showed that disciplinary action in the form of suspension had been taken against Respondent by the Wakulla County Construction Industry Licensing Appeals and Examining Board on August 29, 1974, as a result of alleged deficiencies in the construction of the home purchased by Joseph Jones in Panacea, Florida. Although it is apparent that these deficiencies could have been corrected by Respondent, thus obviating the need for suspension, if building inspection had been mandatory at the time the house was built, such a fact can have no bearing on the disposition of the

   matter. It is also observed that normally a disciplinary board would wish to satisfy itself that a license-holder has received actual notice of an intention to take disciplinary action and the grounds there for prior to the actual imposition of such action. The evidence in this case is by no means clear that the Respondent actually received the initial letter from the Wakulla County Board concerning the alleged deficiencies. In any event, the evidence establishes that Respondent made good faith efforts to correct any and all deficiencies both prior and subsequent to the institution of these proceedings. It is significant that the purchaser of the home testified as to his satisfaction with it and was willing to appear in behalf of the Respondent.

   
   

9. Under the circumstances, it is concluded that, although disciplinary action by Petitioner is authorized by virtue of the suspension of Respondent by Wakulla County his derelictions are not sufficiently serious in nature to warrant additional disciplinary action with respect to his state license. It would certainly seem sufficient for the Petitioner to issue a non-disciplinary letter of admonition to Respondent concerning his duty to ensure compliance with any building requirements of a particular area in which he is registered. The fact that Respondent is currently under suspension in Wakulla County and cannot perform work there until such suspension is removed, adequately safeguards the public interest in that locale without need for further action by Petitioner.

RECOMMENDATION

1. That no disciplinary action be taken by the Florida Construction Industry Licensing Board as a result of disciplinary action taken against Respondent by Wakulla County.

   
   

2. That the Florida Construction Industry Licensing Board issue a letter of admonition to Respondent.

DONE and ENTERED this 28th day of June, 1976, in Tallahassee, Florida.

THOMAS C. OLDHAM

Hearing Officer

Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304

COPIES FURNISHED:

Barry Sinoff, Esquire Boyd L. Jones

Blackstone Building 4544 Thomasville Road

233 E. Boy Street, Suite 1010 Tallahassee, Florida 32303 Jacksonville, Florida 32202

Docket for Case No: 75-002111

Orders for Case No: 75-002111