STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF PROFESSIONAL ) REGULATION, CONSTRUCTION INDUSTRY ) LICENSING BOARD, )

)

Petitioner, )

)

vs. ) CASE NO. 81-2990

)

DAVID H. OTTO, )

)

Respondent. )

)

RECOMMENDED ORDER

This case was heard pursuant to notice on March 10, 1982, in West Palm Beach, Florida, by Stephen F. Dean, assigned Hearing Officer of the Division of Administrative Hearings. This case arose upon an Administrative Complaint filed by the Construction Industry Licensing Board against David H. Otto alleging that the Respondent had engaged in contracting without obtaining the required building permits, that he engaged in contracting outside the scope of his license, and that he was guilty of misconduct in the practice of contracting.

Prior to the hearing, the Board withdrew the allegations of Paragraph 3(b) under Count One, and Respondent admitted the allegations of the Administrative Complaint.

APPEARANCES

For Petitioner: Michael E. Egan, Esquire

217 South Adams Street Post Office Box 1386

Tallahassee, Florida 32302

For Respondent: David H. Otto, pro se

1527 C Road

Loxahatchee, Florida 33470 FINDINGS OF FACT

1. The Respondent, David H. Otto, is a certified air conditioning contractor holding License #CA C015962.

   
   

2. James A. Butler, a field investigator for the Board, discovered that Respondent was installing potable water systems heated by solar energy on five residences in Palm Beach County without permits.

   
   

3. Respondent did not pull permits on the jobs cited in the Administrative Complaint. There is no evidence that the Respondent installed said systems under color of his state air conditioning contractor's license.

4. The Respondent attempted to obtain building permits to install solar hot water heating systems from the Palm Beach County Construction Industry Licensing Board ("PBCCILB"). He was advised that only plumbers could install such systems.

   
   

5. Respondent then requested that a new classification be established for the installation of such systems. The PBCCILB refused.

   
   

6. Subsequently, the Respondent went to the County Commission and made the same request. The County Commission directed the PBCCILB to create a new license classification; however, the PBCCILB refused, citing the fact that it had been created by a special act of the Legislature and was not subject to the Commission's jurisdiction or authority.

   
   

7. The act under which the PBCCILB was created was held to be unconstitutional by the circuit court. That decision is currently on appeal.

   
   

8. The building codes of Palm Beach County were enacted by county ordinance.

   
   

9. The Respondent was qualified to install such water systems and was issued permits in incorporated areas of Palm Beach County.

   
   

   CONCLUSIONS OF LAW

   
   

10. The Division of Administrative Hearings has jurisdiction to hear this cause and enter this Recommended Order pursuant to Section 120.57(1), Florida Statutes. The Construction Industry Licensing Board has authority to discipline the Respondent, who is its licensee, for violations of Chapter 489, Florida Statutes.

    
    

11. In Count I of the Administrative Complaint, the Board charges the Respondent with violations of Section 489.129(1)(d) Florida Statutes, the willful disregard of local building codes, by failing to pull permits on the jobs in question. The Respondent attempted to pull permits for these jobs but could not, because he did not have the requisite certificate. The body charged with establishing these criteria, the Palm Beach County Construction Industry Licensing Board, refused to issue Respondent a permit and refused to create a special certificate. The County Commission, whose code was violated, directed the PBCCILB to create a special category of license, but the PBCCILB refused because it was not subject to the County Commission. Lastly, the special act under which the PBCCILB was created was held unconstitutional. The circuit court held that the County Commission could create such a body but not the Legislature. The facts indicate that Respondent was the victim of an interagency and local jurisdictional struggle.

    
    

12. In Count II of the Administrative Complaint, the Board charges Respondent with violation of Sections 489.129(1)(j) and 489.129(1)(m), Florida Statutes. As stated above, Respondent did not pull the permits, and there is no evidence that Respondent did any of the jobs which are the subject of the Administrative Complaint under his air conditioning contractor's license. There is no evidence that Respondent was unqualified or unable to do the work necessary. To the contrary, he was qualified and able to pull permits in most of the jurisdictions to install solar hot water heaters. There is no proof of violation of Section 489.129 (1)(j), Florida Statutes. There is no evidence that Respondent engaged in fraudulent practices or was negligent. To the extent that he was unable to pull the permits as found above and yet performed the

    work, he was guilty of misconduct; however, that misconduct cannot be separated from the violation of Section 489.129(1)(d), Florida Statutes, cited in Count I, supra. Therefore, the Respondent is technically guilty of violating Sections 489.129(1)(d) and 489.129(1)(m), Florida Statutes, but because both violations arise from the same conduct and cannot be separately considered, they must be considered as one offense.

    
    

13. The Board filed Petitioner's Proposed Recommended Order. To the extent the proposed findings of fact have not been included in the factual findings in this order, they are specifically rejected as being irrelevant, not being based upon the most credible evidence, or not being a finding of fact.

RECOMMENDATION

Having found the Respondent technically guilty of a violation of Section 489.129(1)(d), and thereby guilty of violating Section 489.129(1)(m), Florida Statutes, and based upon the matters in mitigation, the Hearing Officer recommends that the Respondent receive a private letter of reprimand for his technical violation.

DONE and ORDERED this 30th day of March, 1982, in Tallahassee, Leon County, Florida.

STEPHEN F. DEAN, Hearing Officer Division of Administrative Hearings The Oakland Building

2009 Apalachee Parkway

Tallahassee, Florida 32301

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 30th day of March, 1982.

COPIES FURNISHED:

Michael E. Egan, Esquire

217 South Adams Street Post Office Box 1386

Tallahassee, Florida 32302

Mr. David H. Otto 1527 C Road

Loxahatchee, Florida 33470

J. K. Linnan, Executive Director Construction Industry Licensing

Board

Post Office Box 2 Jacksonville, Florida 32201

Samuel Shorstein, Secretary Department of Professional

Regulation

130 North Monroe Street Tallahassee, Florida 32301

Docket for Case No: 81-002990

Orders for Case No: 81-002990