STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

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

)

Petitioner, )

)

vs. ) CASE NO. 86-5035

)

STEPHEN M. OLIVER, )

)

Respondent. )

)

RECOMMENDED ORDER

For Petitioner: G. Vincent Soto, Esquire

Tallahassee, Florida

For Respondent: Stephen M. Oliver, pro se

Palmetto, Florida

The issue in this case is whether the Construction Industry Licensing Board should discipline Respondent, Stephen M. Oliver, based on charges in an Administrative Complaint filed by Petitioner, Department of Professional Regulation, that Respondent: (1) violated a local law by not timely obtaining a building permit, a violation of Section 489.129(1)(d), Florida Statutes (1985);

1. failed to subcontract mechanical work for which he was not licensed, a violation of Section 489.129(1)(j) and 489.113, Florida Statutes (1985); and (3) was guilty of misconduct, incompetence, or gross negligence in contracting, a violation of Section 489.129(1)(m), Florida Statutes (1985).

   
   

   At Respondent's request, a formal administrative hearing was held in Bradenton on February 18, 1987. Petitioner ordered the preparation of a transcript of the final hearing, which was filed on March 2, 1987, and was granted its request that the parties' proposed recommended orders, if any, be filed on or before March 16, 1987.

   
   

   FINDINGS OF FACT

   
   

   1. At all times material, Respondent, Stephen M. Oliver, was both a registered roofing contractor, holding license RC 0042579, and a certified building contractor, holding license CB 025099. Both licenses were issued by the Florida Construction Industry Licensing Board.

      
      

   2. On or about July 3, 1985, Respondent entered into a contract with Betty Davis to remodel her house in Bradenton. The total contract price was $3,600.

      
      

   3. Work on the Davis job commenced on Wednesday, July 3, 1985, and proceeded on July 4 and 5 and July 9 through 12, 1985, before Respondent applied for and obtained a Manatee County building permit for the job. This is a

      violation of local law. Respondent was not attempting to avoid obtaining a permit for the work. He was just busy and did not timely get one.

      
      

   4. The building permit obtained does not reflect that the permit covered installation of an oven range hood. Although part of the contract, that work was not included on Respondent's application for a building permit. No separate mechanical permit was obtained for this work. Respondent willfully and deliberately installed the oven range hood on the Davis job without obtaining the required Manatee County mechanical permit.

      
      

   5. At all times material, the Board of County Commissioners of Manatee County had adopted the Standard Building Code and Standard Mechanical Code, with accumulated supplements, to govern construction in Manatee County. Under the applicable code provisions, installation of an oven range hood is mechanical work for which a mechanical license and mechanical permit are required.

      
      

   6. Respondent is not licensed or qualified by the State or by Manatee County to do mechanical work.

      
      

   7. Respondent willfully and deliberately did the mechanical work on the Davis job, i.e., installation of the oven range hood, without being licensed or qualified to do it and without a mechanical permit.

      
      

   8. Respondent's work on the Davis job was incompetent and grossly negligent in that some electrical wires were covered over by vinyl siding that Respondent installed without first being covered with protective coating to prevent safety hazards, in violation of the applicable building code.

      Otherwise, Respondent's workmanship was not the best, but it was not incompetent or grossly negligent.

      
      

   9. On or about March 22, 1985, Respondent entered into a settlement stipulation in which Respondent admitted to charges of not getting the required building permit for an August 25, 1983, contract until eleven months after work began. Respondent was fined $500 for that offense.

      
      

   10. Shortly before the final hearing in this case, Respondent entered into a settlement stipulation in which he admitted to charges of: (1) performing a February 18, 1985, contract without obtaining the required permit and inspections; (2) performing a March 6, 1985, contract by October 1, 1985, without having all necessary inspections done; (3) performing a January 22, 1985, contract without having all necessary building inspections performed, without correcting all violations cited during inspections, and falsely swearing by affidavit that the masonry contractor had been paid; and (4) not having the necessary final inspection done after performance of a March 16, 1985, contract. For these offenses, Respondent was fined an additional $1000 and placed on probation through February, 1988.

       
       

       CONCLUSIONS OF LAW

       
       

   11. In pertinent part, Section 489.129(1), Florida Statutes (1985), 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 following acts:

       * * *

       (d) Willful or 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.

       * * *

       (m) Upon proof that the licensee is guilty of fraud or deceit or of gross negligence, incompetency, or misconduct in the practice of contracting.

       
       

   12. Section 489.105, Florida Statutes (1985), provides in pertinent part:

       
       

2. "Contractor" means the person who

   is qualified for and responsible for the entire project contracted for and means, except as exempted in this act, the person who, for compensation, undertakes to, submits a bid to, or does himself or by others construct, repair, alter, remodel, add to, subtract from, or improve any building or structure, including related improvements to real estate, for others or for resale to others. Contractors are subdivided into two divisions, Division I, consisting of those contractors defined paragraphs (a)-(c), and Division II, consisting of those contractors defined

   in paragraphs (d)-(m):

   * * *

   (e) "Roofing contractor" means a contractor whose services are unlimited in the roofing trade and who has the experience, knowledge, and skill to install, maintain, repair, alter, extend, or design, when not prohibited by law, and use materials and items used in the installation, maintenance, extension, and alteration of all kinds of roofing and waterproofing.

   * * *

3. "Qualifying agent" means a person who possesses the requisite skill, knowledge, and experience, and has the responsibility, to supervise, direct, manage, and control the contracting activities of the business entity with which he is connected; who has the responsibility to supervise, direct, manage,

and control construction activities on a job for which he has obtained the building permit; and whose technical and personal qualificat- ions have been determined by investigation

and examination as provided in this act, as attested by the department.

1. Section 489.113(3), Florida Statutes (1985), provides:

   
   

   (3) A contractor shall subcontract the electrical, mechanical, plumbing, roofing, sheet metal, and air conditioning work for which a local examination for a certificate of competency or a license is required, unless such contractor holds a state certificate of competency or license of the respective

   trade category, as required by the appropriate local authority. However, a general, building, or residential contractor shall not be required to subcontract the installation of shingle roofing materials.

   Further, a general contractor, on new site development work, site redevelopment work, mobile home parks, and commercial properties, shall not be required to subcontract the construction of the main sanitary sewer collection system and the water distribution system, not including the continuation of utility lines from the mains to the buildings. Further, as to mobile home parks, the general contractor shall not be required to subcon- tract the continuation of utility lines from the mains, and the continuations are to be considered a part of the main sewer collection and main water distribution systems. This subsection does not apply if the local authority does not require a certificate of competency or license for such trade. Nothing in this act shall be construed to require

   the subcontracting of asphalt roofing shingles.

   
   

2. In this case, the evidence was clear that Respondent willfully and deliberately violated local ordinance: (1) by not obtaining a mechanical permit for the Davis job; (2) by not having the required mechanical inspections done on the Davis job; and (3) by doing the mechanical work on the Davis job without a state or local mechanical license. (Respondent's failure to timely obtain a building permit for the rest of the Davis job was not willful or deliberate.) Respondent's violations of local ordinance constitute violations of Section 489.129(1)(d), Florida Statutes (1985).

   
   

3. At the same time, Respondent's failure to subcontract the mechanical work was a violation of Section 489.113(3), Florida Statutes (1985). This violation also subjects Respondent to discipline under Section 489.129(1)(j).

   
   

4. Finally, both the mechanical work and the vinyl siding work Respondent did on the Davis job were grossly negligent and incompetent. This subjects Respondent to discipline under Section 489.129(1)(m), Florida Statutes (1985).

5. Respondent's violations in this case are in addition to violations for which Respondent already has been disciplined and is now on probation. These circumstances could warrant imposition of a more severe penalty in this case. But the incidents for which Respondent now is being disciplined occurred about the same time as the incidents for which he is being charged in this case. They did not occur after he already had been charged and disciplined for the other incidents.

RECOMMENDATION

Based on the foregoing Findings Of Fact and Conclusions Of Law, it is recommended that the Construction Industry Licensing Board enter a final order fining Respondent, Stephen M. Oliver, $1500.00.

RECOMMENDED this 26th day of March, 1987 in Tallahassee, Florida.

J. LAWRENCE JOHNSTON 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 26th day of March, 1987.

APPENDIX TO RECOMMENDED ORDER, CASE NO. 86-5035

Respondent filed no proposed findings of fact. Petitioner's proposed findings of fact are accepted and incorporated to the extent necessary. This ruling complies with Section 120.59(2), Florida Statutes (1985).

COPIES FURNISHED:

G. Vincent Soto, Esquire Department of Professional

Regulation

130 North Monroe Street Tallahassee, Fl 32399-0750

Stephen M. Oliver

2423 Manatee Avenue West Bradenton, Fl 33505

Fred Seely Executive Director

Construction Industry Licensing Board

Post Office Box 2 Jacksonville, Fl 32201

Van Poole Secretary

Department of Professional Regulation

130 North Monroe Street Tallahassee, Fl 32399-0750

Joseph A. Sole, Esquire General Counsel

Department of Professional Regulation

130 North Monroe Street Tallahassee, Fl 32399-0750

Docket for Case No: 86-005035

Orders for Case No: 86-005035