STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF PROFESSIONAL )

REGULATION, CONSTRUCTION )

INDUSTRY LICENSING BOARD, )

)

Petitioner, )

)

vs. ) CASE NO. 86-2638

)

JOSEPH VERNAN EUBANK, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a hearing was held before William R. Cave, a hearing officer of the Division of Administrative Hearings, on October 2, 1986, in Deland, Florida. The issue for determination is whether Respondent's license as a certified residential contractor should be disciplined based on the violations alleged in the Administrative Complaint.

APPEARANCES

For Petitioner: Lagran Saunders, Esquire

Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32301

For Respondent: Joseph Vernon Eubank, Pro Se

Post Office Box 9269 Glenwood, Florida 32722

By an Administrative Complaint dated May 22, 1986, and filed with the Division of Administrative Hearings on July 23, 1986, Petitioner seeks to revoke, suspend, or otherwise discipline the license of Joseph Vernon Eubank as a certified residential contractor in the State of Florida. As grounds therefor, it is alleged: (1) that Respondent failed to subcontract work for which a license is required, and which Respondent was not licensed to do, in violation of Section 489.113(3), Florida Statutes, and that he contracted beyond the scope of his certified residential contractor's license in violation of Section 489.115(1)(b), Florida Statutes, both subjecting him to discipline under Section 489.129(1)(j), Florida Statutes; and (2) that Respondent willfully or deliberately disregarded and violated the applicable building codes of the City of New Smyrna Beach, Florida, subjecting him to discipline under Section 489.129(1)(d), Florida Statutes.

In support of the charges, Petitioner presented the testimony of Linda L. Schaidt, Gilbert Oliver and Respondent. Petitioner's Exhibits 1,2,3, and 4A-4D were received into evidence. Respondent also testified on his own behalf but presented no exhibits.

Only the Petitioner submitted post-hearing Proposed Findings of Fact and Conclusions of Law. A ruling on each proposed finding of fact has been made as reflected in the Appendix to this Recommended Order.

FINDINGS OF FACT

Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant facts are found:

1. At all times relevant hereto, Respondent was a certified residential contractor, holding license no. CR-C018860, issued by the State of Florida, Department of Professional Regulation, Construction Industry Licensing Board.

   
   

2. Sometime prior to May, 1985, Respondent verbally contracted with Stavros Kountanis (Kountanis), owner of a commercial building located at 658 North Dixie Highway, New Smyrna Beach, Florida, to furnish labor and materials for work to be performed on the commercial building.

   
   

3. The contracted work included installation of a sink, a toilet, a new back door, a dropped ceiling with light fixtures, partitioning off restrooms and covering a drain used as a grease trap with concrete.

   
   

4. The contract price of the project, based on Respondent's calculation for labor and material, was $1,500.00 which Respondent received from Kountanis in the form of a loan.

   
   

5. Respondent did not obtain a building, plumbing, or electrical permit for the work performed on the commercial building identified in paragraph 2 above and contracted for by the Respondent.

   
   

6. At no time material to these proceedings was Respondent licensed other than as a certified residential contractor.

   
   

7. Along with Respondent, Cardy Moten, Respondent's partner and Cardy Moten's helpers performed the work for which Respondent had contracted for with Kountanis.

   
   

8. The limitations placed on Respondent's license by statute prohibited him from contracting for, or performing, the type work which he had contracted for and performed.

   
   

9. At no time material to these proceedings was Cardy Moten or his helpers on the Kountanis job licensed to perform commercial contracting, plumbing contracting or electrical contracting.

   
   

10. At all times material to these proceedings Sections 105.1 and 106.1, Standard Building Code, as adopted by the City of New Smyrna Beach, Florida were in full force and effect.

    
    

11. Respondent's failure to obtain a permit to perform the work contracted for with Kountanis before performing the work was in violation of Section 106.1, Standard Building Code, as adopted by the City of New Smyrna Beach, Florida and Section 10-96, Building Regulations, New Smyrna Beach Code.

    
    

12. Respondent was aware that Kountanis had not obtained a permit for the work which Respondent had contracted for with him.

13. The work depicted in Petitioner's Exhibit No. 4A thru 4D was work that Respondent had contracted for and performed or performed by Cardy Moten and his helpers at Respondent's direction.

    
    

    CONCLUSIONS OF LAW

    
    

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

    
    

15. Section 489.129, Florida Statutes, empowers the Construction Industry Licensing Board to revoke, suspend, or otherwise discipline the license of the Respondent if he is found to be guilty of any one of those enumerated acts listed in Section 489.129, Florida Statutes.

    
    

16. The Administrative Complaint charges Respondent with violating Section 489.113(3), Florida Statutes, for his failure to subcontract work for which he was not licensed to perform and with violating Section 489.115(1)(b), Florida Statutes, by contracting for work not covered by his certificate. Violations under either of these sections would subject the Respondent to discipline under Section 489.129 (1)(j), Florida Statutes. Additionally, the Administrative Complaint charges Respondent with violation of Section 489.129(1)(d), Florida Statutes. Sections 489.129(1)(d)&(j) Florida Statutes in pertinent part are quoted below:

    
    

    1. The board may revoke, suspend, the certificate or registration of a contractor and impose an administrative fine...if the contractor, ... is found guilty of any of the following acts:

       (d) Willful and 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 respect to comply with the provisions of this act.

       
       

17. The evidence clearly establishes that the Respondent is guilty of the charges as alleged in the Administrative Complaint and Petitioner has met its burden to prove Respondent guilty of the violations charged in the Administrative Complaint.

RECOMMENDATION

Based upon the Findings of Fact and Conclusions of Law recited herein, it is RECOMMENDED that the Board enter a final order finding the Respondent guilty of the violations charged in the Administrative Complaint and for such violations it is RECOMMENDED that the Board suspend the Respondent's certified residential contractor's license for a period of one (1) year and assess the Respondent with an administrative fine of $500.00, stay the suspension and place the Respondent on probation for a period of one (1) year, provided the Respondent pays the $500.00 fine within ninety (90) days of the final order.

Respondent's failure to pay the $500.00 fine within the time specified will result in his certified residential contractor's license being suspended for a

period of one (1) year with the requirement that when the fine is paid and the suspension lifted, the Respondent must appear before the Board for reinstatement of his license.

RESPECTFULLY submitted and entered this 25th day of November, 1986 in Tallahassee, Leon County, Florida.

WILLIAM R. CAVE

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 25th day of November, 1986.

APPENDIX TO RECOMMENDED ORDER IN CASE NO. 86-2638

The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on all of the Proposed Findings of Fact submitted by the parties in this case.

Rulings on Proposed Findings of Fact Submitted by the Petitioner

1. Adopted in Finding of Fact 9.

2. Adopted in Finding of Fact 10.

3. Rejected as immaterial and irrelevant.

4. Adopted in Finding of Fact 13.

5. Rejected as immaterial and irrelevant.

6. Rejected as immaterial and irrelevant.

7. Adopted in Finding of Fact 13.

Rulings on Proposed Findings of Fact Submitted by the Respondent Respondent did not submitted any Proposed Findings of Fact.

COPIES FURNISHED:

Mr. Fred L. Seely Executive Director

Department of Professional Regulation Construction Industry Licensing Board Suite 504

111 East Coast Line Drive Jacksonville, Florida 32202

Fred Roche, Secretary

Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32301

Lagran Saunders, Esquire

Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32301

Joseph Vernon Eubank Post Office Box 9269 Glenwood, Florida 32722

Docket for Case No: 86-002638

Orders for Case No: 86-002638