STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

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

)

Petitioner, )

)

vs. ) CASE NO. 87-0975

)

JOHNNY LEE BRYANT, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to Notice, an Administrative Hearing was held before William R. Cave, Hearing Officer with the Division of Administrative Hearings, on June 16, 1988, in Ocala, Florida. The issue for determination is whether the Respondent's registered speciality contractor license should be revoked, suspended or otherwise disciplined under the facts and circumstances of this case.

APPEARANCES

For Petitioner: David E. Bryant, Esquire

Jonathan M. Deer, Esquire

220 E. Madison St., Suite 530 Tampa, Florida 33602

For Respondent: Johnny Lee Bryant, Pro Se

Post Office Box 600

Silver Springs, Florida 32688 BACKGROUND

By an Administrative Complaint dated January 16, 1987, and filed with the Division of Administrative Hearings on March 6, 1987, Petitioner seeks to revoke, suspend or otherwise discipline the license of Respondent, Johnny Lee Bryant as a registered specialty contractor in the state of Florida. As grounds therefor, it is alleged that Respondent, without first obtaining, or assuring that a permit had been obtained, began work on a job, failed to post a permit on the job site, and failed to obtain the required inspections on the job in violation of the local ordinance which is a violation of Section 489.129(1)(d) and (m), Florida Statutes.

In support of the charges, Petitioner presented the testimony of James McClain and Dorothy Dorsey. Petitioner's exhibit no. 1 was received into evidence.

Respondent failed to appear at the beginning of the hearing, but appeared toward the end of the hearing and was allowed to testify on his own behalf. The Respondent did not present any other witnesses or offer any exhibits to be introduced into evidence.

It was understood at the end of the hearing that Petitioner would furnish a transcript of the hearing, but by letter of August 1, 1988, the undersigned was advised that no transcript would be forthcoming. On the basis of this letter, the undersigned entered an order on August 5, 1988, advising the parties that any posthearing Proposed Findings of Fact and Conclusions of Law should be filed no later than September 1, 1988. The parties did not expressly waive their right to submit posthearing Findings of Fact and Conclusions of Law, but neither have timely submitted them.

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 material to this proceeding, Respondent was a registered specialty contractor in the state of Florida with license No. RR 0049820 and qualified Marion Pump Service with the state of Florida, Department of Professional Regulation.

   
   

2. On January 8, 1986, Dorothy Dorsey and Respondent entered into a contract whereby Respondent was to install a four- inch well and a one horsepower pump on Dorsey's property in Marion County, Florida for a contract price of $1,410.00

   
   

3. Respondent commenced work on the well and pump installation on January 9, 1986, but it was not clear from the record when the Respondent completed the temporary installation of the pump. Temporary installation consists of drilling the well, installing and connecting the pump to a service pole for electrical service so the building contractor can use the water during construction of the house. Permanent installation could not be completed until Dorsey's home was at a stage completion to allow permanent pipe and electrical connection to the house.

   
   

4. At the time of entering into the contract, Respondent requested that Dorsey "pull" the permit for the well and pump installation with the Marion County Building Department.

   
   

5. It is not clear from the record when Dorsey attempted to "pull" the permit with the Marion County Building Department, but at that time she was informed by someone in the Marion County Building Department that the contractor would have to "pull" the permit.

   
   

6. Again, it is not clear from the record when, or if, the Respondent was advised by Dorsey that he would have to "pull" the permit.

   
   

7. Dorsey attempted to contact the Respondent by telephone concerning this matter, but Respondent did not return her telephone call. Apparently, the Respondent had completed the temporary installation at this time and was not at the job site.

8. Upon Dorsey's home being completed, Dorsey was unable to get a Certificate of Occupancy (CO) from the Marion County Building Department because no permit had been issued and no final inspection called for or made.

   
   

9. Being unable to get any response from the Respondent, Dorsey obtained a permit through Armstrong Well Service. Permanent connections to the home were made and a final inspection made, resulting in a CO being issued sometime around September 9, 1986. There was no evidence that Respondent's action in this regard resulted in any substantial delay to Dorsey obtaining a CO.

   
   

10. Marion County's ordinance number 85-8, duly enacted on June 25, 1985, requires that the "contractor and/or owner" apply for and be issued a permit before well construction or pump installation, unless the State requires a permit, in which case proof that such permit has been issued exempts the applicant from this provision of the ordinance. This ordinance was in effect at all times material hereto.

    
    

11. Ordinance 85-8 provides for doubling the permit fee as a penalty for failure to obtain the permit prior to commencing the well and pump installation.

    
    

12. At all times material hereto, the water management district covering Marion County, Florida, the agency usually responsible for well permits, did not require a permit in the section of Marion County where Dorsey's home was located.

    
    

13. It was Respondent's understanding of the ordinance that a permit was not required until the final inspection.

    
    

14. There was no evidence that any inspection other than the final inspection was required by the Marion County Building Department for well construction and pump installation.

    
    

    CONCLUSIONS OF LAW

    
    

15. The Division of Administrative Hearings has jurisdiction over the parties to, and the subject matter of, this proceeding pursuant to Section 120.57(1), Florida Statutes.

    
    

16. Section 489.129(1), Florida Statutes empowers the Florida Construction Industry Licensing Board (Board) to revoke, suspend or otherwise discipline the license of a registered specialty contractor found guilty of any one of the acts enumerated Section 489.129(1)(a-m), Florida Statutes.

    
    

17. Respondent is charged with violation of Section 489.129(1)(d), Florida Statutes, which authorizes disciplinary action for willful or deliberate disregard and violation of applicable local building codes. To discipline under this section, Petitioner must clearly and convincingly prove purposeful disregard or plain indifference by Respondent to building code requirements. Ferris v. Turlington, 510 So.2d 392 (Fla. 1987); Department of Professional Regulation v. Dory, 9 FALR 394 (Final Order entered November 18, 1986). Petitioner has failed to meet its burden of proof concerning the alleged violation. To the extent there was any violation, it gas not in willful or deliberate disregard of, or in obstinate or plain indifference to, the permit requirements of Marion County, and it was not unreasonable or unjustified in the circumstances present in this case.

18. Respondent is also charged with violation of Section 489.129(1)(m), Florida Statutes, for gross negligence, incompetence, or misconduct in the practice of contracting by failing to timely apply for a permit or inspection. The facts of this case do not show the Respondent to be grossly negligent, incompetent, or guilty of misconduct in the practice of contracting by failure to timely procure a permit, call for the required inspection(s) or timely complete the permanent installation of the pump. The Petitioner has failed to meet its burden of proof concerning this alleged violation. Ferris v. Turlington, 510 So.2d 392 (Fla. 1987).

RECOMMENDATION

Having considered the foregoing Findings of Fact and Conclusions of Law, the evidence of record and the candor and demeanor of the witnesses, it is, therefore,

RECOMMENDED that the Board enter a Final Order DISMISSING the Administrative Complaint filed herein against the Respondent, Johnny Lee Bryant.

RESPECTFULLY submitted and entered this 15th day of September, 1988, in Tallahassee, Leon County, Florida.

WILLIAM R. CAVE

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 15th day of September, 1988.

COPIES FURNISHED:

Fred Seely Executive Director

Construction Industry Licensing Board Department of Professional

Regulation

130 North Monroe Street Tallahassee, Florida 32399-0750

David E. Bryant, Esquire Jonathan M. Deer, Esquire

220 East Madison Street, Suite 530 Tampa, Florida 33602

Johnny Lee Bryant, Pro Se Post Office Box 600

Silver Springs, Florida 32688

Docket for Case No: 87-000975

Orders for Case No: 87-000975