Judges: LARRY J. SARTIN
Agency: Department of Business and Professional Regulation
Latest Update: Mar. 21, 1985
Summary: Respondent conducted business under unregistered name and performed work beyond scope of his license.
84-2424STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
DEPARTMENT OF PROFESSIONAL ) REGULATION, FLORIDA CONSTRUCTION ) INDUSTRY LICENSING BOARD )
Petitioner, )
)
vs. ) CASE NO. 84-2424
)
HARRY L. WILSON, )
)
Respondent. )
)
RECOMMENDED ORDER
Pursuant to written notice a formal hearing was held in this case before Larry J. Sartin, duly designated Hearing Officer of the Division of Administrative Hearings, on November 16, 1984, in Jacksonville, Florida.
APPEARANCES
For Petitioner: H. Reynolds Sampson, Esquire
Staff Attorney
Department of Professional Regulation
130 North Monroe Street Tallahassee, Florida 32301
For Respondent: Harry L. Wilson, pro se
1943 Hardee Street
Jacksonville, Florida 32209 BACKGROUND
On April 27, 1984, the Department of Professional Regulation filed an Administrative Complaint charging the Respondent, Harry L. Wilson, with: (1) willfully disregarding and violating local building codes in violation of Section 489.129(1)(d), Florida Statutes (1983); (2) contracting in a name other than the name set forth on his license in violation of Section 489.129(1)(g), Florida Statutes (1983), and failing in a material respect to comply with the provisions of Section 489.119(2) and (3), Florida Statutes (1983), by failing to qualify a business with the Construction Industry Licensing Board in violation of Section 489.129(1)(j), Florida Statutes, (1983); and (3) failing in a material respect to comply with Section 489.117(2), Florida Statutes (1983), by contracting beyond the scope of his license in violation of Section 489.129 (1)(j), Florida Statutes (1983).
The Respondent disputed the allegations of fact contained in the Complaint and requested a formal hearing to contest the charges pursuant to Section 120.57(1), Florida Statutes (1983). Therefore, the matter was referred to the Division of Administrative Hearings by the Petitioner on July 10, 1984.
Initially the case was assigned to Charles C. Adams who, by notice of hearing dated July 28, 1984,scheduled the case for final hearing on November 16, 1984, in Jacksonville, Florida. On November 13, 1984, the case was transferred to the undersigned.
At the final hearing, the Petitioner presented the testimony of Robbie Lee Hicks and Claude Bagwell. It also offered Petitioner's Exhibits 1-3; all were received into evidence. Respondent testified on his own behalf and offered Respondent's Exhibit 1, which was received into evidence.
Petitioner submitted proposed findings of fact and conclusions of law. To the extent these proposed findings and conclusions have not been discussed herein, they have been rejected as irrelevant or not supported by the evidence.
The issue to be decided is whether Respondent's registered roofing contractor's license should be disciplined for the alleged violations set forth in the administrative complaint.
FINDINGS OF FACTS
Harry L. Wilson is the holder of a registered roofing contractor's license from the Florida Construction Industry Licensing Board. The license, Number RC 0041328, was first issued in March of 1982. The license was issued in the name of Harry L. Wilson Roofing, 1943 Hardy Street, Jacksonville, Florida, with the Respondent as qualifier. The Respondent has been the qualifier of Harry L. Wilson Roofing at all times relevant to this proceeding.
On December 6, 1984, the Respondent and Robbie L. Hicks, entered into a written contract (Petitioner'S Exhibit 2). Pursuant to this written contract (hereinafter referred to as the "Contract"), the Respondent agreed to perform the repair work specified in the Contract in a "professional manner" and Ms. Hicks agreed to pay the Respondent $2,395.00. The property to be repaired is rental property owned by Ms. Hicks. The property is located at 1508 Eaverson Street, Jacksonville, Florida.
The Respondent commenced work sometime during the early part of 1983. Shortly after commencing work, however, the Respondent and Ms. Hicks began having disagreements as to the work to be performed and the quality of the Respondent's work. These disagreements continued after the Respondent completed the work in November of 1983. Ms. Hicks testified that the work that the Respondent completed was done in an unprofessional manner and that the Respondent had not completed all of the work that he had agreed to perform. In particular, Ms. Hicks testified that the Respondent had failed to paint the interior of the house beige as required by the Contract, had failed to remove saw dust and other debris from the house following completion of the work, had failed to finish cabinets installed in the house, had failed to repair screens and generally had not performed in the manner he had agreed to perform. Ms. Hicks paid the Respondent all but $410.00 of the contract price.
The Respondent testified that all off the work called for pursuant to the Contract had been performed. According to the Respondent, he had performed some work not required by the Contract and had not performed other work requested by Ms. Hicks because the work was beyond the scope of the Contract. The Respondent also stated that the work which Ms. Hicks expected would have cost considerably more than the price agreed upon in the Contract.
The Respondent did not perform all of the work specified in the Contract in a "professional manner" as required by the Contract.
Based upon the testimony of Mr. Claude Bagwell, Deputy Chief, Building and Zoning, Inspection Division of the City of Jacksonville, it is clear that no permit was issued by the City of Jacksonville to perform the work required by the Contract. The only permits issued with regard to Ms. Hicks' rental property was a permit issued in 1961 and the original building permit issued in 1949. Additionally, due to the fact that no Florida registered roofing contractor's license in the name of "Harry L. Wilson Roofing" had been filed with the City of Jacksonville, no permit could be issued to Harry L. Wilson Roofing with regard to the Contract.
The Respondent admitted that he had not obtained a permit to perform the work required by the Contract. The Respondent indicated that he had not obtained a permit because he was not aware that one was required in order to perform the work. He did indicate that he had obtained permits to perform other jobs. The Respondent could not, however, have obtained permits for other jobs because no license issued in the name of Harry L. Wilson Roofing had been filed with the City of Jacksonville. The Respondent did take the examination required in order to obtain a registered roofing contractor's license. The Petitioner suggested in its Proposed Findings that the "permit requirement was explained" when the Respondent took the exam. No evidence to support such a finding was presented at the hearing.
The Respondent in entering into the Contract clearly used the name "Wilson Recycling". Nowhere on the Contract is the name "Harry L. Wilson Roofing" used. The Respondent ultimately admitted that no Florida license authorizing the use of the name "Wilson Recycling" had been obtained by him. The Respondent, however, when initially asked whether a Florida license in the name of "Wilson Recycling" had been obtained indicated that such a license had been issued. On further examination, however, the Respondent testified that an occupational license in the name of "Wilson Recycling' had been obtained by him and not a Florida license.
The work to be performed pursuant to the Contract was beyond the scope off the Respondent's license. As pointed out by Mr. Bagwell the work to be performed pursuant to the Contract would require licensure as a registered residential contractor or more.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction of the parties to, and the subject matter of, this proceeding. Section 120.57(1), Florida Statutes (1983).
This proceeding is penal in nature. Bach v. Florida Board of Dentistry, 378 So.2d 34 (Fla. 1st DCA 1980). Because the Respondent's license is at stake, the evidence to support the charges must be more "substantial" than that required to support conventional forms of regulatory action. Bowling v. Department of Insurance, 394 So.2d 165 (Fla. 1st DCA 1981). Accordingly, Petitioner is required to adduce proof commensurate with the potential penalty. Henderson Signs v. Department of Transportation, 397 So.2d 769 (Fla. 1st DCA 1981). These standards have been used in evaluating the evidence.
Section 489.129(1), Florida Statutes (1983), authorizes the Construction Industry Licensing Board to "revoke, suspend, or deny the issuance or renewal of the certificate or registration of a contractor and impose an administrative fine not to exceed $5,000, place a contractor on probation, or reprimand or censure a contractor if the contractor, or if the business entity or any general partner, officer, director, trustee, or member of a business entity for which the contractor is a qualifying agent, is found guilty of any of the acts specified in Section 489.129 (1)(a)-(m), Florida Statutes (1983). The Respondent has been charged with having committed four of those acts.
First, it has been contended that the Respondent is guilty of violating Section 489.129(1)(d), Florida Statutes, (1983):
Willful or deliberate disregard and violation of the applicable building codes or laws of the state or of any municipalities or counties thereof.
The Respondent admitted that he did not obtain a permit from the City of Jacksonville to perform the work called for by the Contract. The Petitioner, however, failed to prove that the Respondent's action was "willful or deliberate" The term "willful" has been defined as follows:
Intending the result which actually comes to pass; designed; intentional; not accidental or involuntary. . .
Black's Law Dictionary, Rev. 4th Ed. 1968 "Deliberate" has been defined as follows:
Well advised; carefully considered; not sudden or rash; circumspect; slow in determining . . . . Willful rather than merely intentional. .
Black's Law Dictionary, Rev. 4th Ed. 1968.
The Supreme Court of Florida has defined the term "willful" in a civil action as follows:
A thing is willfully done when
it proceeds from a conscious motion of the will, intending the result which actually comes to pass. It must be designed or intentional, and may be malicious, though not necessarily so. "Willful" is sometimes used in the sense of intentional, as distinguished from "accidental" and, when used in a statute affixing a punishment to acts done willfully, it may be restricted to such acts as are done with an unlawful intent. . .
Chandler v. Kendrick, 108 Fla. 450, 146 So.551, 552 (1933).
The Respondent testified that he did not know he was required to obtain a permit to perform the Contract. This testimony was uncontroverted. In its Proposed Findings, the Petitioner argues the following with regard to this issue:
Ms. Hicks testified that the Respondent's work would not pass inspection which indicated that she thought respondent was working
within the required city inspection structure. . . . This is the more reasonable finding with regard to the lack of a permit; respondent knew or should have known that a permit was required and he willfully disregarded such building code's requirement. Additionally it should be found that he most likely was experienced enough to know that the work he was undertaking was beyond the scope
of his license and that the City would not have permitted the job under his present license.
Although Ms. Hicks did indicate that the property did not pass inspection, Ms. Hicks did not indicate that "she thought Respondent was working within the required city inspection structure." Even if Ms. Hicks did so believe, such a belief does not prove that the Respondent willfully or deliberately failed to obtain a building permit. Nor do the other facts of this case support such a conclusion. The facts, to the contrary, prove that the Respondent has very little conception as to what he is allowed to do and what he is prohibited from doing as a roofing contractor.
Secondly, it is contended that the Respondent is guilty of violating Section 489.129(1)(g), Florida Statutes, (1983).
Acting in the capacity of a contractor under any certificate or registration issued hereunder except in the name of the certificate holder or registrant as set forth on the issued certificate or registration, or
in accordance with the personnel of the certificate holder or registrant as set forth in the application for the certificate or registration, or as later changed as provided in this act.
Closely related to the second violation, it is contended that the Respondent is guilty of violating Section 489.129(1)(j), Florida Statutes, (1983):
Failure in any material respect to comply with the provisions of this act.
In particular, it is contended that the Respondent failed in a material respect to comply with Section 489.119(2) and(3), Florida Statutes (1983), by failing to qualify "Wilson Recycling" with the Construction Industry Licensing Board.
Section 489.119, Florida Statutes (1983), requires generally that contractors qualify their business entities by application to the Petitioner. A separate application is required each time the business name or entity is changed.
The Respondent clearly violated Section 489.129(1)(g) and (j), Florida Statutes (1983), by acting under the name "Wilson Recycling" instead of Harry L. Wilson Roofing and by failing to qualify ``Wilson Recycling'' by application to the Petitioner.
Finally, the Respondent is charged with violating Section 489.129(1)(j), Florida Statutes (1984), by failing in a material respect to comply with the provisions of Section 489.117(2), Florida Statutes (1983). Section 489.117 (2), Florida Statutes (1983), provides:
Registration allows the registrant to engage in contracting only in the counties, municipalities, or development districts where he has complied
with all local licensing requirements and only for the type of work covered by the registration. [Emphasis added].
Based upon Mr. Bagwell's uncontradicted testimony it is clear that the Respondent contracted to and did perform work beyond the scope of his Florida license.
RECOMMENDATION
Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED:
That count I of the Administrative Complaint filed against the Respondent be dismissed. It is further
RECOMMENDED:
That Respondent be found guilty of violating Section 489.129 (1)(g), Florida Statutes (1983), by contracting in a name other than the name as set forth on the Respondent's license. It is further
RECOMMENDED:
That Respondent be found guilty of violating Section 489.129(1)(j), Florida Statutes (1983), by failing in a material respect to comply with the provisions of Section 489.119(2) and(3), Florida Statutes (1983), in that the Respondent failed to qualify the business name "Wilson Recycling" with the Construction Industry Licensing Board. It is further
RECOMMENDED:
That Respondent be found guilty of violating Section 489.129(1)(j), Florida Statutes (1983), when he failed in a material respect to comply with the provisions of Section 489.117(2), Florida Statutes (1983), by contracting to perform and actually performing work beyond the scope of his Florida contracting license. It is further
RECOMMENDED:
That Petitioner suspend Respondent's roofing contractor's license for a period of three (3) months.
DONE and ENTERED this17th day of December, 1984, in Tallahassee, Florida.
LARRY J. SARTIN
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 17th day of December, 1984.
COPIES FURNISHED:
H. Reynolds Sampson, Esquire Staff Attorney
Department of Professional Regulation
130 North Monroe Street Tallahassee, Florida 32301
Harry L. Wilson 1943 Hardee Street
Jacksonville, Florida 32209
Mr. Fred Roche, Secretary
Department of Professional Regulation
130 North Monroe Street Tallahassee, Florida 32301
Docket for Case No: 84-002424
Orders for Case No: 84-002424
| Issue Date |
Document |
Summary |
|
Mar. 15, 1985 |
Agency Final Order
|
|
|
Dec. 17, 1984 |
Recommended Order
|
Respondent conducted business under unregistered name and performed work beyond scope of his license.
|
