STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF PROFESSIONAL )

REGULATION, Construction Industry ) Licensing Board, )

)

Petitioner, )

)

vs. ) CASE NO. 82-2480

)

DONALD W. NETTLES, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, SHARYN L. SMITH, held a formal hearing in the above- styled case on December 15, 1982, in Miami, Florida. The following appearances were entered:

APPEARANCES

For Petitioner: Michael J. Cohen, Esquire

Suite 101 Kristin Building 2715 East Oakland Park Blvd.

Fort Lauderdale, Florida 33306 For Respondent: No appearance was entered.

The issue for determination at the final hearing was whether the Respondent's license should be suspended, revoked or other disciplinary action imposed for allegedly failing to pull a building permit and performing electrical work outside the scope of his license in violation of the South Florida Building Code and/or the Code of Metropolitan Dade County and Chapter 489, Florida Statutes.

At the final hearing, official recognition was taken of the South Florida Building Code and Chapter 10 of the Code of Metropolitan Dade County.

Petitioner's Exhibits 1-3 were offered and admitted into evidence. John J. Delaney testified on behalf of the Petitioner.

FINDINGS OF FACT

1. The Respondent Donald W. Nettles is a certified general contractor having been issued license number CO C008957. Respondent's last known address is Crown Builders International, Inc., 1175 N.E. 135th Street, North Miami, Florida.

   
   

2. On or about April 30, 1980, Respondent as qualifying agent for Crown Builder's International, Inc., contracted with Buckley Towers Condominium to repair damage caused by a fire to a condominium owned by Lee K. Abrams, 1301

   N.E. Miami Gardens Drive, Apartment 205W, North Miami Beach, Florida. Said contract included the repair and, if required, the replacement of electrical wiring and outlets that were damaged by the fire. The amount of the contract was $10,640.

   
   

3. On or about May 29, 1980, the Respondent completed the work without pulling a building permit or calling for building inspections as required by the South Florida Building Code.

   
   

4. The Respondent, a general contractor who is not licensed to perform electrical work in Dade County, performed electrical work on the Abrams job which was outside the scope of his contractor's license.

   
   

5. This complaint arose due to a dispute between the Respondent Nettles and the complainant over the replacement of a $56.16 thermostat with a defective control which resulted in electric bills of approximately $60 over a four-month period. The Respondent refused to pay for the replacement thermostat when the complainant also demanded that he pay her electric bills over the four month period. The Respondent refused to pay the electrical bills because on the day the thermostat was installed, May 29, 1980, the complainant left for New York and the Respondent was unable to gain access to the apartment to replace the thermostat until her return.

   
   

6. A subpoena was issued in this case by the Petitioner to the complainant to ensure her attendance at the final hearing. Approximately a day before the final hearing, the complainant informed counsel for the Petitioner that she would not attend the final hearing.

   
   

   CONCLUSIONS OF LAW

   
   

7. The Division of Administrative Hearings has jurisdiction over the parties and subject matter of this proceeding. Section 120.57(1), Florida Statutes.

   
   

8. Section 301.1 of the South Florida Building Code requires that permits issued by the Building Office are required in order to, inter alia, repair, improve or alter any building or structure when the value of such work exceeds

   $300. The building official, upon notification by the permit holder or his agent, is required to inspect the permitted work at various stages of construction or repair. See Section 305.2 id. Pursuant to Chapter 10, Code of Metropolitan Dade County, it is unlawful for a contractor to contract for or do work outside the scope of work the contractor is authorized to perform. Section 10-22( ), Metropolitan Code.

   
   

9. The Administrative Complaint alleges that by virtue of the Respondent violating the above cited code provisions, he has also violated Sections 489.129(1)(d) and 489.129(1)(j), Florida Statutes.

10. Section 489.129(1)(d) and (j), Florida Statutes empowers the Construction Industry Licensing Board to take prescribed disciplinary action against a certificate or registration holder for:

    
    

    (d) Willful or deliberate disregard and violation of the applicable building codes or laws of the state or of any municipalities or counties thereof.

    (j) Failure in any material sense to comply with the provisions of this act.

    
    

11. No allegation was made in the Administrative Complaint or evidence introduced at the final that the Respondent knew or should have known that the local codes previously cited, supra, required that permits and inspections be made in this case and that the electrical work performed was required to be subcontracted. In the absence of such evidence, no finding of "willfulness" or "deliberate" disregard of applicable building codes can be made in this case as required by statute or inferred from the fact that the local codes were violated. See Department of Professional Regulation, Construction Industry Licensing Board v. Smith, 4 FALR 2332-A, August 25, 1982. Accordingly, the Petitioner has failed to carry its burden of proof as to this particular charge.

    
    

12. However, the complaint further alleges a violation of Section 489.129(1)(j), Florida Statutes, based on the Respondent's failure to subcontract electrical work as required by Section 489.113(3), Florida Statutes, which states that a contractor shall subcontract, inter alia, electrical work for which a local examination or license is required. In Dade County a general contractor must be certified in order to perform the electrical work required under the instant contract. The Respondent, therefore, violated Section 489.129(1)(j), Florida Statutes, by failing to subcontract the electrical work called for under the contract to a certified electrical contractor.

    
    

13. In determining the appropriate penalty in this case, it is significant to note that no evidence was introduced to show that the Respondent has been the subject of any previous disciplinary proceedings. Additionally, the unauthorized actions of the Respondent in this case did not result in any damage to the public generally. This case arose as a result of an essentially private dispute over a defective $56.16 thermostat and not because of the quality of Respondent's unauthorized work. The failure of the complainant to comply with the subpoena that was issued is another factor to be considered in determining the gravity of the complaint and appropriate penalty.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of law, it is RECOMMENDED:

That the Respondent Donald W. Nettles be found to have violated Section 489.129(1)(j), Florida Statutes by operation of Section 489.113(3), Florida Statutes, and be placed on probation for a period of six months.

DONE and ORDERED this 23rd day of December, 1982, in Tallahassee, Florida.

SHARYN L. SMITH, 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 23rd day of December, 1982.

COPIES FURNISHED:

Michael J. Cohen, Esquire Suite 101 Kristin Building

2715 East Oakland Park Boulevard Fort Lauderdale, Florida 33306

Donald W. Nettles

1175 N.E. 135th Street North Miami, Florida 33161

James Linnan, Executive Director Construction Industry Licensing

Board

Post Office Box 2 Jacksonville, Florida 32202

Samuel R. Shorstein, Secretary Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32301

================================================================= AGENCY FINAL ORDER

=================================================================

STATE OF FLORIDA

DEPARTMENT OF PROFESSIONAL REGULATION CONSTRUCTION INDUSTRY LICENSING BOARD

DEPARTMENT OF PROFESSIONAL REGULATION

Petitioner,

vs. CASE NO. 0021333

DONALD W. NETTLES

Crown Builders International, Inc. CG C008957

1175 Northeast 135th Street North Miami, Florida

Respondent.

/

FINAL ORDER

This case came for final action by the Construction Industry Licensing Board on April 7, 1983, in Tampa, Florida. An administrative hearing held pursuant to Section 120.57(1), F.S., resulted in the issuance of a Recommended Order (attached hereto as Exhibit A) . Petitioner filed exceptions to said Order which were considered by the Board. Upon consideration of the Recommended Order, Petitioner's Exceptions, and the complete record in this proceeding, it is ORDERED:

1. The findings of fact in the Recommended Order are approved and adopted and incorporated herein by reference.

   
   

2. The conclusions of law in the Recommended Order are approved and adopted and incorporated herein by reference.

   
   

3. The recommendation in the Recommended Order is rejected as inappropriate under the circumstances. The Board adopts Petitioner's Exceptions to said recommendation.

THEREFORE

It is ORDERED and ADJUDGED that the Respondent be placed on PROBATION for a period of six months and that he pay a $1000 administrative fine.

DONE AND ORDERED this 22nd day of April, 1983.

FLORIDA CONSTRUCTION INDUSTRY LICENSING BOARD

Henry Bachara, Chairman

FILED

Department of Professional Regulation

Florida Construction Industry Licensing Board BOARD CLERK

CLERK:

Burt German DATE: 4/22/83

Docket for Case No: 82-002480

Orders for Case No: 82-002480