STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF PROFESSIONAL )

REGULATION, CONSTRUCTION )

INDUSTRY LICENSING BOARD, )

)

Petitioner, )

)

vs. ) CASE NO. 87-2474

)

DAVID M. BARRY, )

)

Respondent. )

)

RECOMMENDED ORDER

Final hearing in the above-styled action was held on October 8, 1987, in Melbourne, Florida before Mary Clark, Hearing Officer of the Division of Administrative Hearings.

The parties were represented as follows:

For Petitioner: David R. Terry, Esquire

W. Douglas Beason, Esquire

Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32399-0750

For Respondent: David M. Barry

(representing himself) 698 Evergreen Street Palm Bay, Florida 32905

Background and Procedural Matters

Petitioner's (DPR) Administrative Complaint, alleging violations of Chapter 489, F.S., relating to construction contracting was filed on May 4, 1987. This proceeding commenced with Respondent's (Barry) timely request for a hearing. At the final hearing the parties stipulated to an amendment to the Administrative Complaint and to the First Request for Admissions, to provide an accurate address for the reroofing job in issue.

DPR presented two witnesses, the City of Palm Bay Building Official and David Barry; DPR's four exhibits were admitted without objection. David Barry also testified in his own behalf and introduced two exhibits, both received into evidence without objection.

A transcript was prepared and neither party filed proposed recommended orders.

Issue

The issues for determination are whether David Barry performed roofing contract work in the City of Palm Bay without obtaining a building permit or inspections, and without an appropriate license to contract in that local jurisdiction, thereby violating Sections 489.129(1)(d), (j), and (m), F.S., as alleged in the Administrative Complaint.

FINDINGS OF FACT

1. In his response to Petitioner's First Request for Admissions, Barry has admitted the following:

   
   

   1. Respondent is a registered roofing contractor in the State of Florida having been issued license number RC 0031713.

   2. At all times material to the pending administrative complaint Respondent was a registered roofing

      contractor in the State of Florida having been issued license number RC 0031713.

   3. At all times material to the pending administrative complaint

      Respondent's registered roofing contractor license (RC 0031713) qualify "Dave Barry Roofing" with the Florida Construction Industry Licensing Board.

   4. On or about October 1986, Respondent d/b/a "Dave Barry Roofing" reroofed a residence located at 1998 [corrected to read "1994"] Mark Twain Street, Palm Bay, FL.

   5. At no time material hereto did Respondent obtain a City of Palm Bay building permit for the roofing construction performed at 1998 [1994] Mark Twain Street, Palm Bay, FL.

   6. The attached "Petitioner's Exhibit A" represents a true and correct copy of the Ordinance #85-77 as adopted by the City of Palm Bay on January 2, 1986. [Petitioner's Exhibit #3]

   7. Attached "Petitioner's Exhibit B" represents a true and accurate copy of Section 103 of the Standard Building Code (1985) as in force and affect in Palm Bay from January 2, 1986 to December 31, 1986. [Petitioner's Exhibit #4]

      
      

2. The Standard Building Code as adopted by the City of Palm Bay requires that a building permit be obtained for a reroofing job such as that conducted by Barry in October, 1986.

   
   

   Palm Bay also requires inspections on such work and the contractor is supposed to call the building department for those inspections.

3. On the day that the roofing work commenced and while his crew was on the job, Barry went to the Palm Bay Building Department to obtain the permit.

   He was denied the permit because he did not have a current competency card. The building department did not have the proper backup documents to reissue his competency card that day.

   
   

4. Competency card is required for registration of a contractor in the City of Palm Bay. Registration is required before a contractor can engage in work in the city. Barry had neither a competency card nor registration the day that he applied for a permit for the job on Mark Twain Street.

   
   

5. The job started on a Friday and was finished the next day. Barry did not wait to get the necessary permit as he had to get the work finished once his crew started and the house was exposed. He had not anticipated a problem in getting the competency card renewed or obtaining the building permit.

   
   

   Barry did not call the building department for an inspection on the job, and none was conducted.

   
   

6. Barry's Florida license was previously disciplined by the Construction Industry Licensing Board in DPR case number 12350, in November 1981. In that case he admitted the allegations of the complaint that he failed to replace rotten wood on a reroofing job, that he operated with a delinquent registration and that he failed to properly qualify his company, Dave Barry Roofing. The case was resolved with a stipulation that Barry replace the rotten wood, pay a civil penalty of $500.00, and undergo probation for one year.

   
   

   CONCLUSIONS OF LAW

   
   

7. The Division of Administrative Hearings has jurisdiction over the parties and subject matter in this proceeding pursuant to Section 120.57(1) F.S. and Section 455.225(4) F.S..

   
   

8. Section 489.129(1)F.S., , provides in pertinent part:

489. 129 Disciplinary proceedings.--

1. The board may revoke, suspend, or deny the issuance or renewal of the certificate or registration of a contractor and impose an administrative fine not to exceed $5000, 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.

   
   

   The violation of Section 489.129(j) F.S. is based on an allegation that Barry exceeded the scope of his license in violation of Section 489.117(2) F.S., which states:

   
   

   489.117 Registration.--

   
   

2. 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.

1. DPR has met its burden of proving by clear and convincing evidence that Barry committed the violations alleged- in the administrative complaint. The material facts are undisputed.

   
   

2. The Board's disciplinary guidelines found at Rule Chapter 21E-17

F.A.C. provide normal penalty ranges and describe aggravating and mitigating circumstances which may be considered when determining an appropriate penalty for violations of Chapter 489, F.S.

Barry's past disciplinary history clearly is an aggravating factor. His violations are, however, mitigated by the lack of evidence of actual harm to the consumer or public. The recommended penalty is, therefore, within the normal ranges suggested in Rule 21E-17.001 F.A.C.

RECOMMENDATION

Based on the foregoing, it is hereby, RECOMMENDED:

That a Final Order be entered finding violations of Section 489(1)(d), (j) and (m), and assessing a fine of $500.00.

DONE and RECOMMENDED this 20th day of November, 1987 in Tallahassee, Florida.

MARY CLARK

Hearing Officer

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 20th day of November, 1987.

COPIES FURNISHED:

David R. Terry, Esquire

W. Douglas Beason, Esquire Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32399-0750

David M. Barry

698 Evergreen Street Palm Bay, Florida 32905

Fred Seely, Executive Director Construction Industry Licensing Board

Department of Professional Regulation

Post Office Box 2 Jacksonville, Florida 32201

Tom Gallagher, Secretary Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32399-0750

William O'Neil, Esquire General Counsel

Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32399-0750

Docket for Case No: 87-002474

Orders for Case No: 87-002474