STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF PROFESSIONAL )

REGULATION, CONSTRUCTION )

INDUSTRY LICENSING BOARD, )

)

Petitioner, )

)

vs. ) CASE NO. 83-3040

)

JOSEPH F. SCIOLI, JR., )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, this cause was heard by Linda M. Rigot, the assigned Hearing Officer of the Division of Administrative Hearings, on December 15, 1983, in North Miami, Florida.

Petitioner Department of Professional Regulation, Construction Industry Licensing Board, was represented by Douglas A. Shropshire, Esquire, Tallahassee, Florida; and Respondent Joseph F. Scioli, Jr., appeared on his own behalf.

Petitioner filed an Administrative Complaint seeking to suspend, revoke, or take other disciplinary action against Respondent as licensee and against his license to practice contracting under the laws of the State of Florida.

Respondent timely requested a formal hearing on the allegations contained within that Administrative Complaint. Thereafter, but prior to the formal hearing in this cause, two amendments to that Administrative Complaint were allowed: the first permitting the addition of statutory citations allegedly violated, and the second substantially changing a number of the substantive allegations contained in the Administrative Complaint. Accordingly, the issues for determination are whether Respondent is guilty of the charges contained in the Administrative Complaint as amended and, if so, what disciplinary action should be taken, if any.

Petitioner presented the testimony of Joseph F. Scioli, Jr.; Naomi Blanton; Donat A. Clermont; and, by way of deposition, James K. Linnan. Respondent also testified on his own behalf. Additionally, Petitioner's Exhibits numbered 1 through 12 were admitted in evidence.

Only Petitioner submitted posthearing proposed findings of fact in the form of a proposed recommended order. To the extent that any proposed findings have not been adopted in this Recommended Order, they have been rejected as not having been supported by the evidence, as having been irrelevant to the issues under consideration herein, or as constituting unsupported argument of counsel or conclusions of law.

FINDINGS OF FACT

1. At all times material hereto, Respondent has been a registered residential contractor having been issued license number RR 0040275.

   
   

2. In approximately 1980, Respondent entered into a contract to erect a screen room for a Mr. Lewis. Under the terms of the contract, Respondent was to obtain the necessary building permit. After the contract had been signed, Respondent's grandfather died, and Respondent therefore went to New Jersey. He left the permit application with his qualifying agent to sign and process through the building department. When Respondent returned from New Jersey approximately 30 to 35 days later, he went to the Lewis job site and found the project almost completed. Respondent did not check to ascertain if the permit had been obtained, but rather completed the screen room himself. Lewis subsequently contacted Respondent to say that he had received a notice of violation from the building department for erecting a screen room without a permit. Respondent contacted the building department and advised that it was not Lewis's fault, but rather that it was Respondent's responsibility to pull the permit. Respondent was charged with unlawfully erecting a screen room without a permit; he appeared in court and pled guilty; and he paid a $250 fine pursuant to the adjudication of guilt entered on April 20, 1981, in the County Court in and for Dade County, Florida, in Case No. 81-50438.

   
   

3. On June 24, 1981, Respondent submitted to the Construction Industry Licensing Board a Contractor's Registration application. On that application, Respondent answered in the negative the following question: "Has any person named in (i) below ever been convicted of any offense in this state or elsewhere other than traffic violations?" At the time Respondent gave that answer, he believed it to be true. He understood the question to call for information on criminal acts and did not comprehend the "screen room" charge to have been criminal conduct.

   
   

4. Since Respondent answered that question in the negative, his application for registration was processed in accordance with normal procedures. Had Respondent answered that question in the affirmative, his application would not have gone through normal processing but rather would have been presented to the Construction Industry Licensing Board for the Board's determination of whether to approve the application based upon a consideration of the facts.

   
   

5. On November 22, 1982, Respondent contracted with Naomi Blanton to construct an addition to Blanton's home located in the City of Miami, in Dade County, Florida, for a contract price of $11,250. When Respondent had first met with Blanton several months earlier, he had told her he could guarantee completion of the project within 45 days. No contract was entered into at that time, however, since Blanton had not obtained the financing she needed in order to construct an addition. When the contract was signed on November 22, Respondent told Blanton he would start the job when he finished the Chamber of Commerce building he was con structing but that he was starting a 12-unit duplex project around Christmas and would not be able to guarantee any 45-day completion deadline. Accordingly, when the contract was signed, no completion date was included in the terms of that written contract, since Respondent did not know when he could guarantee completion.

   
   

6. The Blanton contract written by Respondent specifically provided that Respondent would obtain the building permit.

7. On December 22 and 23, 1982, two of Respondent's employees arrived at the Blanton job site, dug a trench, knocked down the utility room, and moved Mrs. Blanton's washing machine. No further work was done until January 1983.

   
   

8. Since Respondent knew that he was required to obtain the building permit before commencing any construction work, Respondent submitted his plans and permit application to the City of Miami Building Department. After the plans had been there about a week, he was advised that his plans would not be accepted unless they were drawn by an architect, although that is not required by the South Florida Building Code. After attempting several more times to obtain approval from the City of Miami Building Department, Respondent hired an architect to redraw the plans and secure the building permit. By this time, Respondent found himself unable to concentrate on operating his business efficiently, since he was preoccupied with spending time with his father who was dying of cancer. Also by this time, Blanton had commenced telephone calls to Respondent on an almost daily basis as late as 11:00 p.m. at his office, at his home, at his mother's home, and at his father's home. Respondent offered to return Blanton's deposit, but she refused to cancel the contract and threatened Respondent that she would sue him if he did not comply with that contract. Respondent commenced working on the Blanton job, although no permit had yet been obtained.

   
   

9. The contract on the Blanton job called for payments at certain stages of the construction. By January 27, 1983, Respondent had completed a sufficient amount of the work under the contract so that Blanton had paid him a total of

   $8,270 in accordance with the draw schedule contained in the contract.

   
   

10. Respondent ceased working on January 27, 1983, and advised Blanton and her attorney that he would do no further work until he could obtain the building permit, which he had still not been able to obtain. Although he told them his work stoppage was due to his continued inability to obtain the permit, he also stopped work due to his father's illness and his continued inability to get along with Mrs. Blanton.

    
    

11. A delay occurred with the plans being redrawn by the architect Respondent hired to obtain the Blanton building permit, since the architect needed information from Blanton and she was out of town. After Blanton returned, the architect made unsuccessful attempts to obtain the building permit. Respondent and his architect were finally able to speak to one of the top personnel in the City of Miami Building Department about the problems they were experiencing in obtaining a building permit, and, at about the same time, Blanton contacted that same individual to complain that Respondent had no permit. On May 4, 1983, the building department finally accepted the second permit application together with the plans drawn by the architect, and the building permit was issued on May 4, 1983.

    
    

12. No work was performed on the Blanton job between January 27, 1983, when Blanton paid Respondent the draw to which he was entitled by that date, and May 4, 1983, when the building permit was finally issued by the City of Miami. Respondent immediately resumed work and quickly completed the next stage of construction called for under the Blanton contract. Upon completing that next stage, he requested his next draw payment; however, Blanton decided not to pay Respondent for the work completed and had her attorney advise Respondent not to return to the job site. Blanton then had a friend of her son come to Miami from Wisconsin to complete the addition to her home.

13. At all times material hereto, Respondent held a certificate of competency issued by Metropolitan Dade County.

    
    

    CONCLUSIONS OF LAW

    
    

14. The Division of Administrative Hearings has jurisdiction over the subject matter hereof and the parties hereto. Section 120.57(1), Florida Statutes.

    
    

15. Count One of the Administrative Complaint as amended charges Respondent with violating Section 489.129(1)(k), Florida Statutes (1981), by abandoning a construction project, and with violating Section 489.129(1)(d), Florida Statutes (1981), by willfully or deliberately disregarding and violating applicable building codes, to wit: the Dade County Code Chapter 10, Section 10- 22(g), and the South Florida Building Code Chapter 3, Section 301(a). In its proposed recommended order, Petitioner takes the position that it "did not press" the abandonment charge; however, it is more accurate to state that Petitioner failed to meet its burden of proving that Respondent abandoned a construction project, since the evidence herein was to the contrary. Likewise, Petitioner has failed to prove that Respondent violated Section 489.129(1)(d), Florida Statutes (1981), by violating Chapter 10, Section 10-22(g) of the Dade County Code by failing to fulfill his contractual obligations, since no evidence was introduced to show any contract obligation not fulfilled. However, Petitioner has met its burden of proving that Respondent violated Section 489.129(1)(d) by violating Chapter 3, Section 301(a) of the South Florida Building Code by failing to obtain a building permit prior to commencing the Blanton construction project, as alleged in Count One.

    
    

16. Count Two of the Administrative Complaint as amended charges Respondent with violating Section 489.129(1)(a), Florida Statutes, in that he obtained his registration with the Construction Industry Licensing Board by fraud or misrepresentation by failing to disclose the fact and circumstances surrounding his adjudication of guilt in the County Court relating to Mr. Lewis's screen room. Although Petitioner has proven and Respondent has admitted that the negative answer to the question on the application regarding criminal convictions was factually not true, Petitioner has failed to convert Respondent's lack of comprehension into fraud or misrepresentation, which require understanding and intent. Accordingly, Petitioner has failed to meet its burden of proving that Respondent violated Section 489.129(1)(a), Florida Statutes, as alleged in Count Two of the Administrative Complaint as amended.

    
    

17. In its proposed recommended order, Petitioner suggests that a monetary penalty of $2,000 would be sufficient as to the charges arising out of the Blanton project but that Respondent's misrepresentation in obtaining his registration with Petitioner requires revocation of that license so that after revocation Respondent can reapply for his license, at which time the Board can review the facts relating to the Lewis screen room conviction and decide whether to issue Respondent a license. Even if Respondent had obtained his state license by fraud or misrepresentation, revoking it so that he can reapply and present to the Board the Lewis screen room facts is illogical, since those facts have already been presented in the formal hearing in this cause and are uncontroverted. The remainder of Petitioner's recommendation that Respondent be fined the sum of $2,000 appears reasonable and appropriate. Respondent's evidence regarding his reason for failing to obtain the building permit before commencing work on the Blanton construction project must be considered along with Respondent's candid admission that he knew at the time he needed the building permit in order to commence work. That willful violation must not go

unpunished; yet, a penalty more substantial than that recommended would not be justified under the circumstances set forth in this Recommended Order.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered finding Respondent guilty of

violating Section 489.129(1)(d), Florida Statutes, by willfully and deliberately

violating Section 301(a) of the South Florida Building Code; imposing an administrative fine against Respondent in the amount of $2,000 to be paid by a date certain; and dismissing the remaining charges contained in the Administrative Complaint, as amended, against Respondent.

DONE and RECOMMENDED this 13th day of April, 1984, in Tallahassee, Leon County, Florida.

LINDA M. RIGOT

Hearing Officer

Division of Administrative Hearings The Oakland Building

2009 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 13th day of April, 1984.

COPIES FURNISHED:

Douglas A. Shropshire, Esquire Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32301

Mr. Joseph F. Scioli, Jr.

246 North Krome Avenue Florida City, Florida 33034

Frederick Roche, Secretary

Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32301

James Linnan, Executive Director Construction Industry Licensing Board Post Office Box 2

Jacksonville, Florida 32202

Docket for Case No: 83-003040

Orders for Case No: 83-003040