STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF PROFESSIONAL )

REGULATION, CONSTRUCTION )

INDUSTRY LICENSING BOARD, )

)

Petitioner, )

)

vs. ) CASE NO. 83-412

)

PAUL M. BESSEY, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, Arnold H. Pollock, held a formal hearing in this case on May 20, 1983, in Tampa, Florida.

APPEARANCES

For Petitioner: Douglas A. Shropshire, Esquire

Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32301

For Respondent: Was not present or represented by counsel.

PRELIMINARY INFORMATION

By Administrative Complaint filed November 24, 1982, the Department of Professional Regulation, for the Construction Industry Licensing Board, seeks to suspend, revoke, or otherwise discipline the Respondent as licensee and his license to practice contracting under the laws of Florida. As grounds for this action, Petitioner alleges that between February and April, 1980, Respondent performed an aluminum patio cover installation in Holiday, Florida, and failed to pull a construction permit for the work as required by the Pasco County Building Code, in violation of Section 489.129(1)(d) , Florida Statutes (1979)

On January 29, 1983, Respondent filed an Election of Rights form on which he disputed the allegation against him and demanded a formal hearing. On March 11, 1983, after having been notified of the time, date, and place of the hearing, Respondent forwarded a letter to the Petitioner, with information copy to the Hearing Officer, in which he denied any knowledge of the work in question and clearly indicated he did not intend to attend the hearing.

Petitioner presented the testimony of Fred J. Popham, Ralph D. Girdler, Patrick L. Ryan, and Jack Gore, and Petitioner's Exhibits 1 through 4.

FINDINGS OF FACT

1. Paul M. Bessey was first licensed as a registered residential contractor by the State of Florida in April, 1977, when license numbered 0030190 was issued to him qualifying D. & L. Aluminum Products, Inc., of St. Petersburg, Florida. In July, 1981, upon request of Respondent, that license was issued on an inactive status to Respondent qualifying as an individual, in Clearwater, Florida.

   
   

2. On February 13, 1980, Fred J. Popham entered into a contract with Prime Marketing Group, Inc., through its salesman, Robert K. Larkin, to construct an aluminum patio cover, at a cost of $876, over the Patio at his residence located at 3500 Beechwood Drive, Holiday, Florida.

   
   

3. In furtherance of that project, Prime Marketing, Inc., on or about February 20, 1980, issued a purchase order, #001582, to D. & L. Aluminum to furnish the cover in question at the Popham residence at a cost of $626.40.

   
   

4. Thereafter, on March 28, 1980, D. L. Aluminum Products, Inc., billed Prime Marketing for the construction of the cover at the Popham property after completing the work.

   
   

5. Any construction work that either is valued in excess of $100 or which requires inspection by a county building inspector cannot, pursuant to Section 107, Pasco County Building Code, be undertaken without a permit first being issued. The construction in question in this case would fall within both categories to require a permit to be issued.

   
   

6. A search of the records of the Pasco County Building Office, where such permits are logged on a daily basis when issued, for the period from February 11 through April 4, 1980, failed to reflect that a permit was pulled by D. L. Aluminum Products, Inc., or by anyone else for construction at Mr. Popham's address.

   
   

7. D. L. Aluminum Products, Inc., is currently a wholly owned subsidiary of Ritchie & Page Distributing Company of Trenton, New Jersey. In April, 1981, the ownership of D. L. Aluminum Products, Inc., was in litigation; and Respondent was a part of that litigation as one of the owners of the company. The litigation was resolved by the sale of D. L. Aluminum Products, Inc., to Ritchie & Page.

   
   

   CONCLUSIONS OF LAW

   
   

8. The Division of Administrative Hearings has jurisdiction over the parties and the subject matter of this proceeding.

   
   

9. The fact that Respondent's contractor's license was originally issued qualifying D. L. Aluminum Products, Inc., in 1977 and not changed until 1981, and the testimony of Mr. Ryan of Ritchie & Page that, at the time his company acquired D. L. Aluminum Products, Inc., in April, 1981, Respondent was one of the owners, clearly indicates that at the time the construction in question was accomplished, Respondent was an owner and qualifier of D. L. Aluminum Products, Inc., and as such would be responsible for its actions.

10. Section 489.129(1)(d) , Florida Statutes (1979) , states:

    
    

    1. The board may revoke, suspend, or deny the issuance or renewal of the certificate or registration of a con- tractor or impose an administrative fine not to exceed $1,000, place the contractor on probation, reprimand or censure, a contractor if the contrac- tor is found guilty of any of the following acts:

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

       
       

11. Here, Respondent constructed the patio cover for Mr. Popham, which required the issuance of a building permit, without procuring one, in violation of the Pasco County Building Code. The absence of any explanation for the failure to obtain a permit, in light of the facts in this case, supports a conclusion that the code violation was willful or deliberate, and Respondent is thereby subject to disciplinary action

RECOMMENDATION

Based on the foregoing, it is RECOMMENDED:

That Respondent pay an administrative fine of $250 and that he be placed on probation for one year subsequent to the reactivation of his license, should he apply to have it reactivated.

RECOMMENDED this 7th day of June, 1983, in Tallahassee, Florida.

ARNOLD H. POLLOCK, 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 7th day of June, 1983.

COPIES FURNISHED:

Douglas A. Shropshire, Esquire Department of Professional

Regulation

130 North Monroe Street Tallahassee, Florida 32301

Mr. Paul M. Bessey Star Route 4, Box 2634

Hernando, Florida 32642

Mr. Fred Roche Secretary

Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32301

Mr. James Linnan Executive Director

Construction Industry Licensing Board

Department of Professional Regulation

Post Office Box 2 Jacksonville, Florida 32202

Docket for Case No: 83-000412

Orders for Case No: 83-000412