Judges: VERONICA E. DONNELLY
Agency: Department of Business and Professional Regulation
Latest Update: May 23, 1988
Summary: Roofing contractor guilty of misconduct when he had pattern of practice of beginning work prior to pulling permits.
87-5327STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
DEPARTMENT OF PROFESSIONAL ) REGULATION, CONSTRUCTION ) INDUSTRY LICENSING BOARD, )
)
Petitioner, )
)
vs. ) CASE NO. 87-5327
) ROBERT G. FELLENZ, SR., )
)
Respondent. )
)
RECOMMENDED ORDER
Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, Veronica E. Donnelly, held a formal hearing on April 22, 1988, in Tarpon Springs, Florida.
APPEARANCES
For Petitioner: David L. Swanson, Esquire
Department of Professional Regulation
130 North Monroe Street Tallahassee, Florida 32399-0750
For Respondent: Robert G. Fellenz, Sr., pro se
64 South Louisiana Court
New Port Richey, Florida 33552
The DEPARTMENT OF PROFESSIONAL REGULATION, Petitioner, filed an Administrative Complaint [before the Construction Industry Licensing Board] alleging that the Respondent, ROBERT G. FELLENZ, SR., violated local law in his re-roofing contract with James Hoover by failing to have a building permit issued before construction began. The Respondent was further accused of failing to obtain all required inspections, in violation of the applicable local laws.
Both alleged violations were either deliberate or occurred through improper supervision of the workers on the project by the Respondent.
ROBERT G. FELLENZ, the Respondent, disputed the allegations of fact contained in the Administrative Complaint and requested a formal administrative hearing.
During the hearing, the Petitioner submitted eleven exhibits which were accepted into evidence. Five witnesses were presented, and the Respondent had the opportunity to cross examine them. The Respondent timely submitted a late filed exhibit which was admitted into evidence. The Respondent testified in his own behalf. No additional evidence was presented by the parties.
A transcript of the proceedings was not ordered. The Respondent, FELLENZ, waived his opportunity to submit Proposed Findings of Fact and Conclusions of
Law. The Petitioner filed a Proposed Recommended Order on May 3, 1988. Rulings on the Proposed Findings of Fact are contained in the attached Appendix.
FINDINGS OF FACT
At all times material to these proceedings, Section 4-67 of the Building Regulations, Supplement Number 44, Pasco County Ordinances were in effect and said regulation is the applicable local law.
During the applicable time period, the Respondent, ROBERT G. FELLENZ, SR., was registered by the State of Florida as a roofing contractor and held license number RC0027998. Mr. Fellenz is the qualifying agent for Fellenz Roofing Co., Inc.
On or about March 24, 1987, the Respondent, FELLENZ entered into a contract with James J. Hoover to re-roof a portion of his residence located at 822 Crestfield Avenue, Holiday, Pasco County, Florida.
On April 1, 1987, the Respondent went to the building department in Pasco County to acquire the necessary permit to begin the Hoover project. During the processing of the permit, the Respondent learned that a stop order had been placed on the job. His work crew had disobeyed his direct orders and began work before the permit was obtained.
While the Respondent was in the process of having the stop order removed, he learned that his liability insurance had expired. Proof of liability insurance coverage was needed by the Respondent in order for the building permit to be issued by Pasco County on the Hoover project.
The Respondent contacted his customer, Mr. Hoover, and explained that he had an insurance coverage problem which he needed to straighten out before work could continue on the roof, and before he could obtain the building permit. Mr. Hoover was not home on the day the re-roofing project was begun and completed by the Respondent.
On April 3, 1987, the Respondent obtained liability insurance coverage which went into effect on that date. He began and completed the Hoover re- roofing project on that date.
On April 6, 1987, the building department issued the building permit on the Hoover project. A final inspection was never called for by the Respondent.
The Respondent has previously been found to have violated Section 489.129(1)(d), Florida Statutes, in Case No. 69097 Construction Industry Licensing Board.
CONCLUSIONS OF LAW
Based on the foregoing findings of fact and on the applicable legal principles, I make the following conclusions of law:
The Division of Administrative Hearings has jurisdiction over the parties and the subject matter pursuant to Section 120.57(1), Florida Statutes.
Section 489.129, Florida Statutes, empowers the Florida Construction Industry Licensing Board to revoke, suspend, or otherwise discipline the license of the Respondent if he is found guilty of any acts enumerated in Section 489.129, Florida Statutes.
Section 489.129(1), Florida Statutes, as it applies to the Respondent, reads as follows, in pertinent part:
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 $5,000.00, place a contractor on probation, or reprimand or censure a contractor if the contractor, of 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.
In paragraphs 5 and 6 of the Administrative Complaint, the Respondent is charged with two separate violations of Section 489.129(1)(d), Florida Statutes, by reason of willful or deliberate violation of applicable local law. Paragraph 5 involves the Respondent's failure to obtain a building permit.
Section 4-67(2) of the Building Regulations found in Supplement Number 44 of the Pasco County Ordinances, specifically requires a person, firm, or corporation to obtain a permit before any erection, alteration, repair, removal, or demolition of a building occurs in Pasco County.
When the Respondent attempted to obtain a permit on April 1, 1987, for the Hoover project, he was unable to do so. He was aware that a permit had not been issued because of the stop order dated April 1, 1987, and his need to acquire liability insurance prior to the permit issuance. Although the Respondent had met the preliminary requirements of completing the permit application, paying his fees, and obtaining the insurance when he began the project, the permit had not been obtained when he began and completed the re-roofing project on April 3, 1987. This was proved at hearing by the testimony of the property owner, James Hoover, who testified as to the project completion date, and the admission of
Petitioner's Exhibit Number 3 into evidence which shows that the building permit was issued on April 6, 1987, at 11:56 a.m. As a result, the Respondent should be found GUILTY of willfully violating Section 489.129(1)(d), Florida Statutes, for his failure to obtain a building permit prior to the construction and completion of the Hoover re-roofing project as set forth in paragraph 5 of the complaint.
Paragraph 6 of the Administrative Complaint involves Respondent's failure to obtain a final inspection on the project.
Section 4-67(1) of the Building Regulations, Supplement No. 44, Pasco County Ordinances, adopts the Standard Building Code, 1979 Edition, and any subsequent amendments or additions as minimum code requirements.
The introductory paragraph of Section 4-67 of the Building Regulations states:
... The board shall call a public hearing with due public notice before adopting any such rules, regulations and/or codes by reference, or otherwise. Any such rules, regulations and/or codes shall
not be inconsistent with the terms and provisions hereof.
During the hearing, provisions of the Standard Building Code, 1985 Edition were admitted into evidence. However, the Hearing Officer was not provided with a Pasco County Ordinance revealing that the Board of County Commissioners adopted the 1985 Edition of the Standard Building Code as minimum code in Pasco County for the year 1987.
As the Hearing Officer was not provided with sufficient local law to establish that the 1985 Edition was in effect, the Petitioner's charge in Paragraph 6 that the Respondent failed to obtain a final inspection on the project in violation of local law should be DISMISSED as the required standard of proof was not met as to this alleged violation.
In finding that the Respondent should be found guilty of violation of Section 489.129(1)(d), Florida Statues, as to paragraph 5, he is found to be GUILTY of failing to materially comply with the provisions of Chapter 489, Florida Statutes. A building permit was clearly required by Pasco County in the interest of public health, safety, and welfare as provided in Section 4-67 of the Building Regulations. As the permit requirements directly relate to the Respondent's duties and responsibilities on a roofing project, it is material and in violation of Chapter 489, Florida Statutes.
As to Section 489.129(1)(m), Florida Statutes, there is insufficient proof that the Respondent violated this provision in paragraphs 5 and 6 of the complaint. In Florida, acts of fraud or deceit or misconduct are required to be specifically pleaded and the facts constituting fraud should be clearly stated. Florida Life Insurance Co. v. Dillon, 58 So. 643 (Fla. 1912).
What constitutes fraud or deceit or misconduct is a matter of substantive law. Without the specific allegations of the facts constituting the fraud or deceit or misconduct, the Petitioner cannot prove, and the Hearing Officer cannot find, that fraud or deceit or misconduct has been committed.
The failure to obtain a permit does not rise to the level of gross negligence, which is a legal standard of care. The fact that a permit was issued on the first working day after the project was completed negates a finding that either gross negligence or incompetency occurred in this case. Therefore, the charge that the Respondent violated Section 489.129(1)(m) in paragraphs 5 and 6 should be DISMISSED.
Section 21E-17.001, Florida Administrative Code, provides in pertinent part;
The following guidelines shall be used in disciplinary cases, absent aggravating or mitigating circumstances and subject to the other provisions of this Chapter:
....
Late permits. Contractor pulls permits after starting job but prior to completion and does not miss any inspections. First violation, letter of guidance; repeat violation, $500 fine.
Job finished without a permit having been pulled, or no permit until caught after job, or late permit during the job resulting in missed inspection or inspections. First violation, $250 to
$750 fine; repeat violation $1,000 to
$2,000 fine.
Section 21E-17.003, Florida Administrative Code, provides in pertinent part:
(b) The penalty given in the above list for repeat violations is intended to apply only to situations where the repeat violation is of a different subsection of Chapter 489 than the first violation. Where, on the other hand, the repeat violation is the very same type of violation as the first violation, the penalty set out above will generally be increased over what is otherwise shown for repeat violations in the above list.
Petitioner's Exhibit Number 11 reveals that the Respondent's failure to timely obtain a building permit as set forth in Paragraph 4 of the Administrative Complaint is the respondent's second violation of Section 21E- 17.001(e).
Based upon the foregoing, it is RECOMMENDED:
That the Respondent be found GUILTY of having violated Sections 489.129(1)(d); 489.119; and 489.105(4), Florida Statutes, by failing to have a timely permit issued pursuant to local law on the Hoover re-roofing project.
That the Respondent be required to pay a $1,000,00 fine as set forth in Section 21E-17.001(e)(1), Florida Administrative Code.
DONE AND ORDERED in Tallahassee, Leon County, Florida, this 23rd day of May, 1988.
VERONICA E. DONNELLY
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 23rd day of May, 1988.
APPENDIX TO RECOMMENDED ORDER, CASE NO. 87-5327
Petitioner's proposed Findings of Fact are addressed as follows:
Included in H.O. #2.
Rejected. Immaterial.
Included in H.O. #4. Reject the second portion of paragraph 3 as it is a conclusion of law not proved through exhibits at hearing. Reject all of paragraph 3 as it goes to the Respondent's state of mind and is conclusionary.
Included in H.O. #3.
Accepted. Not included in Findings of Fact. Irrelevant.
Included in H.O. #6. Accepted only as set forth in H.O. #6.
Rejected as to presentation of building permit. Mr. Hoover was not home. The rest of paragraph 7 is included in H.O. #7.
Accepted as summary of Pasco County records. Irrelevant. The rest of paragraph 8 included in H.O. #5.
Rejected. Irrelevant.
Accepted as statement on permit. Rejected as proper proof of ordinance requirements.
Included in H.O. #9.
COPIES FURNISHED:
David L. Swanson, Esquire Department of Professional
Regulation
130 North Monroe Street Tallahassee, Florida 32399-0750
Robert G. Fellenz, Sr.
64 South Louisiana Court
New Port Richey, Florida 33552
Fred Seely, Executive Director Construction Industry Licensing Board Post Office Box 2
Jacksonville, Florida 32201
William O'Neil, Esquire General Counsel
Department of Professional Regulation
130 North Monroe Street Tallahassee, Florida 32399-0750
Docket for Case No: 87-005327
Orders for Case No: 87-005327
| Issue Date |
Document |
Summary |
|
Aug. 15, 1988 |
Agency Final Order
|
|
|
May 23, 1988 |
Recommended Order
|
Roofing contractor guilty of misconduct when he had pattern of practice of beginning work prior to pulling permits.
|
