STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

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

)

Petitioner, ) DOAH CASE NO. 85-0377

) DPR CASE NO.0049381

vs. )

)

JOSEPH R. KENNEDY )

)

Respondent. )

)

RECOMMENDED ORDER

Notice was given and on May 30, 1985, a formal Section 120.57(1), Florida Statutes hearing was held in Jacksonville, Florida. The Hearing Officer was Charles C. Adams. This recommended order is being entered following the receipt and review of the Petitioner's proposed recommended order. The facts proposed have been utilized to some extent. In those instances where the facts are not used, it is based upon a determination that the facts are irrelevant, immaterial, cumulative or subordinate to facts found within the recommended order.

APPEARANCES

For Petitioner: W. Douglas Benson, Esquire

Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32301

For Respondent: No appearance.

ISSUES

The issues in this cause are those promoted by the filing of an Administrative Complaint by the Department of Professional Regulation accusing the Respondent of various violations of Chapter 489, Florida Statutes. Should the Respondent be found

guilty, this action contemplates the imposition of a penalty against Respondent's license as a commercial pool contractor in Florida.

FINDINGS OF FACT

1. Respondent, at all times relevant to this inquiry, was a registered commercial pool contractor having been issued license number RP0041725. This is a license issued by the Florida Construction Industry Licensing Board.

2..On November 18, 1983, Respondent entered into a contract under the name Kennedy Pool and Construction Co., an entity for whom Respondent serves as a qualifying agent in the commercial pool contracting business. This contract was with one Marie Robertson; however, the contract was not for the purpose of construction of a pool. It was for construction of a 20' by 24' block garage. This structure was to be free-standing and would be located adjacent to Ms. Robertson's residence, which is also used in her business. Petitioner's exhibit number 2 is a copy of the contract and reflects the $4,800.00 contract price.

Robertson has paid the full amount of the contract and the garage construction was completed in January, 1984. Respondent personally built the garage.

1. Respondent built the garage without obtaining a building permit from the City of Jacksonville, Florida. Respondent also failed to submit plans and specifications to the City of Jacksonville, which set forth the design and placement of this garage structure. Having failed to request a permit or to submit plans and specifications, Respondent made no request of the City of Jacksonville Building Department to inspect the construction related to the garage. Finally, Respondent in his licensure with the State of Florida, and license recognition with the City of Jacksonville, was not authorized to serve as a building contractor engaging in the construction of structures such as the garage in question.

   
   

2. The project at issue entailed the pouring of a foundation; the erection of block walls the erection of a roof truss system and the installation of a roof covering of shingles. All of these items were beyond the license recognition which respondent held with the State of Florida and the City of Jacksonville.

   
   

3. When the City of Jacksonville discovered the existence of the garage, it made the owner aware that the structure was in violation of the City of Jacksonville Building Code related to the need for obtaining a building permit, and the fact that the garage structure violated the city's set-back requirement. This later item pertained to the fact that given the commercial

   utilization of the property, on the part of Ms. Robertson, the garage was too close to the city street. As a consequence, Robertson was put to the inconvenience of obtaining and paying for a building permit and gaining a variance from the set-back requirements mentioned. Had the City of Jacksonville been presented with building plans and specifications, this would have alerted the city to the fact that the placement of the garage was too close to the street.

   
   

4. When confronted with her difficulty, Ms. Robertson contacted the Respondent to gain his assistance in obtaining a building permit. The Respondent indicated that it was her problem and said that he could not get a permit because the property was business property and not private property.

   
   

5. The Respondent was charged by the City of Jacksonville through a notice of violation of local zoning requirements related to the failure to obtain a building permit and the fact that the Respondent was not licensed by the City of Jacksonville to construct a garage at the Robertson residence. Attempts at serving the violations were not successful in that calls to the Respondent and issuance of notice of violations through certified mail, return receipt requested, were not acknowledged by the Respondent.

   
   

   CONCLUSIONS OF LAW

   
   

6. The Division of Administrative Hearings has jurisdiction over the subject matter and the parties to this action in accordance with Section 120.57, Florida Statutes.

   
   

7. Respondent is accused of having violated Section 489.117(2), Florida Statutes (1983), by contracting to perform work outside the scope of his licensure. As a consequence, Respondent is said to have violated Section 489.129(1)(j), Florida Statutes (1983), related to disciplinary proceedings against a Respondent who fails to comply with the provisions of Chapter 489, Florida Statutes (1983).

   
   

8. Respondent is licensed as a commercial pool contractor and that registration or licensure, by definition set forth in Section 489.105(3)(j), Florida Statutes (1983), does not allow the Respondent to engage in building activities such as contemplated by the construction of the Robertson garage. Furthermore, Respondent was not recognized in the City of Jacksonville, Florida to act as a contractor in the construction of the Robertson garage. Having operated outside the

   recognition afforded by the license held with the Florida Construction Industry Licensing Board and not being recognized to perform this type of work in the City of Jacksonville, Respondent has violated Section 489.117(2), Florida Statutes (1983), and in turn Section 489.129(1)(j), Florida Statutes (1983). For this violation Respondent is subject to the penalties set forth in Section 489.129(1), Florida Statutes (1983).

   
   

9. Respondent has also, in the performance of the work for Ms. Robertson, acted contrary to Section 489.129(1)(m), Florida Statutes (1983), in that he was guilty of misconduct. The misconduct pertained to operating outside the registration or licensure held with the Florida Construction Industry Licensing Board, and without necessary license recognition from the City of Jacksonville, Florida; by operating without the benefit of a permit: by building the garage without submitting plans and specifications to the City of Jacksonville, and by failing to call for inspections of the building project at various stages within the construction. These matters, other than operating outside of the licensure or registration with the Florida Construction Industry Licensing Board, mentioned before, are acts which are in violation of the City of Jacksonville Building Code at Sections 320.401, 320.403 and 320.504. In view of this misconduct Respondent is subject to the disciplinary measures announced in Section 489.129(1), Florida Statutes (1983).

   
   

10. Petitioner, at the commencement of the final hearing in this cause, attempted to amend the Administrative Complaint to include an allegation that Respondent had violated Section 489.129(1)(d), Florida Statutes (1983), having to do with the, "willful or deliberate disregard and violation of the applicable building codes or laws of the state or of any municipalities or counties thereof." Respondent was not aware of this contention at the time he asked for a hearing on the allegations set forth in the Administrative Complaint, and an amendment at the point of hearing is not accepted. This amendment is rejected in view of the fact that the Respondent was without notice of this additional statutory claim, which is necessary to allow a defense of this accusation. Respondent's non-attendance does not absolve the Petitioner of this requirement to afford notice. In summary, the amendment of the Administrative Complaint to add a statutory allegation related to Section 489.129(1)(d), Florida Statutes (1983), is denied.

11. Upon consideration of the facts found and the conclusions of law reached, it is,

RECOMMENDED:

The final order be entered finding the Respondent guilty of those alleged offenses set forth in the original Administrative Complaint, and imposing a $1,000.00 fine by way of penalty.

DONE AND ENTERED this 9th day of July, 1985, at Tallahassee, Florida.

CHARLES C. ADAMS

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 9th day of July, 1985.

COPIES FURNISHED:

W. Douglas Beason, Esquire Department of Professional

Regulation

130 North Monroe Street Tallahassee, Florida 32301

Joseph E. Kennedy 2032 Seahawk Circle Ponta Vedra, Florida

Joseph E. Kennedy 1672-3 E1 Camino Road

Jacksonville, Florida 3221S

Fred Roche, Secretary Department of Professional

Regulation

130 North Monroe Street Tallahassee, Florida 32301

Salvatore A. Carpino, Esquire General Counsel

Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32301

James Linnan, Executive Director

Construction Industry Licensing Board

P. O. Box 2

Jacksonville, Florida 32202

Docket for Case No: 85-000377

Orders for Case No: 85-000377