STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
DEPARTMENT OF PROFESSIONAL ) REGULATION, CONSTRUCTION ) INDUSTRY LICENSING BOARD, )
)
Petitioner, )
)
vs. ) CASE NO. 88-0275
)
DAVID L. NORRIS, )
)
Respondent. )
) DEPARTMENT OF PROFESSIONAL ) REGULATION, CONSTRUCTION ) INDUSTRY LICENSING BOARD, )
)
Petitioner, )
)
vs. ) CASE NO. 88-0732
)
DAVID L. NORRIS, )
)
Respondent. )
)
RECOMMENDED ORDER
Upon due notice, these consolidated causes came on for formal hearing on August 26, 1988, in Fort Lauderdale, Florida, before Ella Jane P. Davis, a duly assigned Hearing Officer of the Division of Administrative Hearings.
APPEARANCES
For Petitioner: G. W. Harrell, Esquire
Department of Professional Regulation
130 North Monroe Street Tallahassee, Florida 32399-0750
For Respondent: David L. Norris, Pro se
3144 Northwest 39th Court Lauderdale Lakes, Florida 33309
ISSUES - DOAH CASE NO. 88-0275
Respondent is charged in DOAH Case No. 88-0275 with:
Proceeding without a timely permit having been issued, violating local law, either deliberately or through improper supervision, in violation of Sections 489.129(1)(d), (m), and (j); 489.119; and 489.105(4), Florida Statutes.
Proceeding without obtaining all required inspections, violating local law, either deliberately or through improper supervision, in violation of Sections 489.129(1)(d), (m), and (j); 489.119; and 489.105, Florida Statutes.
Failing to perform in a reasonably timely manner and/or abandoning the job(s) alleged in the administrative complaint in violation of Section 489.129, Florida Statutes.
ISSUE - DOAH CASE NO. 88-0732
Respondent is charged in DOAH Case No. 88-0732 with failure to pay a $1,000 fine imposed by February 20, 1987, Final Order of the Construction Industry Licensing Board and thereby violating Section 489.129(1)(m), Florida Statutes, by gross negligence, incompetence, fraud, or deceit in the practice of contracting.
PRELIMINARY STATEMENT
At formal hearing, Petitioner presented the oral testimony of Respondent (as an adverse witness), Allen Blumerfeld, and Julio Aldecocea, who was accepted as an expert in contracting in the State of Florida. Petitioner also had admitted 10 exhibits, one of which was the deposition of Patsy Doyle.
Respondent testified on his own behalf and recalled Allen Blumerfeld and Julio Aldecocea. He had no exhibits admitted.
No transcript of the proceedings has been provided. Petitioner late-filed its consolidated proposed findings of fact and conclusions of law. Respondent filed separate written "closing statements" in each case. Since each submittal was served timely and neither party has objected to late filing, the respective submittals have been considered and are ruled upon in the appendix to this recommended order, pursuant to section 120.59(2), Florida Statutes.
FINDINGS OF FACT
FOR DOAH CASE NO. 88-0275
Petitioner is the state agency charged, in conjunction with the Construction Industry Licensing Board, with the responsibility to prosecute administrative complaints pursuant to Chapters 489, 455, and 120, Florida Statutes, and the rules promulgated pursuant thereto.
At all times material, Respondent David L. Norris was licensed as a certified general contractor in the State of Florida, holding license numbers CG C011081 and CG CA11081.
At all times material, Respondent was the qualifying agent for Perma Gard Windows, Inc.
On April 11, 1987, the Respondent entered into a contract with Harold and Claire Berkwits to perform certain remodeling work, which included replacement of a roof, on their residence located at 8037 Buttonwood Circle, Tamarac, Florida, for a price of $8,450.
Respondent timely initiated construction on the project and his work passed the first two inspections performed on May 20, 1987 and June 5, 1987.
Marshall Roofing was employed by Respondent to replace the roof. After scheduling his work around Marshall Roofing's schedule, and in anticipation that
he would have the tin cap on the roof and ready for inspection prior to the arrival of Marshall Roofing, Respondent requested the Tamarac Structural Building Inspector to inspect the tin cap on June 9, 1987.
However, on June 9, 1987, when Building Inspector Allen Blumerfeld, arrived to make his inspection of the tin cap, he discovered that the roof had already been completed. The tin cap had already been covered and could not be inspected, so Blumerfeld issued a "stop work" order. Subsequently, he discovered no roofing permit had been pulled for the job.
Later on June 9, 1987 a roofing permit was applied for and received by Marshall Roofing for the Berkwits project. Also a Code Compliance and Hold Harmless Agreement was executed by Marshall Roofing for the City of Tamarac. Marshall Roofing had arrived and finished the roof earlier than expected but after tin tagging by Respondent as the general contractor. There are only two possible inferences to be drawn from the immediately foregoing finding of fact: either Respondent was actively present and supervising the work as he claimed at formal hearing and therefore deliberately allowed the work by Marshall Roofing to proceed without permit and inspection or he was not present and supervising and was therefore guilty of negligent supervision as a general contractor. Because Respondent testified and/or argued that it is difficult to proceed "in order" on a contracting job and he did the tin tagging/capping himself for economic reasons, it is more logical to infer that his involvement in this procedure was deliberate as opposed to negligent.
Julio Aldecocea is a registered Florida architect and a certified general contractor. In his expert opinion as a contractor, permits should be drawn timely either by the general contractor (Respondent) or the subcontractor, and to do otherwise is negligence or incompetence and offends the South Florida Building Code. He was unable to give an opinion on the competency of the contracting job or roofing installation on the Berkwits job itself because it was completed when he viewed it. Allen Blumerfeld was not able to say that any offense had been committed against the City of Tamarac Building Code/Ordinances. He issues one or two "stop work" orders per week, but finds it acceptable under the South Florida Building Code for a general contractor to tin cap a roof himself only if he is working for the roofing contractor or has pulled the permit for putting down the roof. It is apparently conceded that Respondent timely pulled all other permits on the Berkwits job and passed all other inspections until he was removed from the job due to a disagreement with the owner.
FINDINGS OF FACT
FOR DOAH CASE NO. 88-0732
The foregoing findings of fact 1, 2, and 3 are incorporated herein by reference as if fully set forth anew.
On January 8, 1987, the Respondent was found guilty of violating Sections 489.129(2), 489.129(3), and 489.129(1)(g) Florida Statutes, by the Construction Industry Licensing Board in DPR Case No. 60987, DOAH Case No. 88- 0002. The Respondent was not present at that Board meeting. He asserted this was due to lack of timely notice of the Board's meeting.
Respondent was fined $1,000 by the Final Order of the aforementioned Board filed/served on February 20, 1987. The Respondent has failed to pay the fine. Respondent has not appealed the final order or fine.
Respondent expressed himself at formal hearing as intending never to pay the lawfully imposed fine.
CONCLUSIONS OF LAW DOAH CASE NO. 88-0275
The Division of Administrative Hearings has jurisdiction over the parties and subject matter of this cause pursuant to Section 120.57(1), Florida Statutes.
Section 489.129(1), Florida Statutes provides that:
The Board may revoke, suspend, or deny the issuance or renewal of the certificate or registration of a contractor ... if the contractor ... 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.
Respondent violated Section 489.129(1)(d), by deliberately disregarding Chapter 3, Paragraphs 301.1(k) and 3401.1(b), South Florida Building Code (P-5), as adopted by the City of Tamarac (P-6), which calls for an issued permit before roofing work begins and requires inspections at specified points of construction. The Code Compliance and Hold Harmless Agreement which was later executed does not negate the Respondent's decision to proceed without the required permit and inspection.
Respondent was responsible for construction contracted for under his individual license, pursuant to Sections 489.05(4), 489.119, Florida Statutes.
Respondent failed to properly supervise construction under his license in that he failed to ensure the proper permit was issued and the required inspection made, in violation of Section 489.129(1)(j), Florida Statutes.
Respondent is guilty of misconduct in the practice of contracting violation of Section 489.129(1)(m), Florida Statutes, by failing to obtain the required permit and inspection.
CONCLUSIONS OF LAW DOAH CASE NO. 88-0732
The foregoing Conclusion of Law 14 is adopted and incorporated herein as if fully set forth anew.
Respondent is charged with gross negligence, incompetence or misconduct in the practice of contracting pursuant to Section 489.129(1)(m), Florida Statutes, for failure to pay his $1,000 fine pursuant to the Board's February 20, 1987 final order. However, Petitioner has cited no statutory or
rule authority which labels a licensee's refusal to pay a fine or obey a final order of the Construction Industry Licensing Board as gross negligence, incompetence, or misconduct in the practice of contracting. (Emphasis supplied, see definition of "contracting" at Section 489.105, Florida Statutes). Without such authority, the factual allegations of the administrative complaint, although proved, support no conclusion that a statute or rule has been violated. Petitioner's recourse lies not in this forum but in enforcement, execution, and collection actions in Circuit court.
RECOMMENDATION
IN DOAH CASE NO. 88-0275
Upon the foregoing findings of fact and conclusions of law, and upon further consideration of the penalty guidelines contained in Rule 21E-17.000 Florida Administrative Code, which have been cited by Petitioner, and which provide for a spread of $250-$750 for each first time violations of only Sections 489.129(1)(d) and (m) respectively, and in consideration of the fact that the three violations found herein are first time offences, arose out of a single set of facts on a single job, and resulted in no monetary or other harm, it is RECOMMENDED that:
The Construction Industry Licensing Board enter its final order finding Respondent guilty of violating Sections 489.129(1)(d), (j), and (m) and fining him a combined total of $1,000.
RECOMMENDATION
IN DOAH CASE NO. 88-0735
Upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED that:
The Construction Industry Licensing Board enter its final order dismissing the charge of a violation of Section 489.129(1)(m).
DONE and RECOMMENDED this 30th day of September, 1988, at Tallahassee, Florida.
ELLA JANE P. DAVIS, 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 30th day of September, 1988.
APPENDIX TO RECOMMENDED ORDER, CASE NOS. 88-0275, 88-0732
The following constitute rulings pursuant to Section 120.59(2), Florida Statutes, upon the parties' respective Proposed Findings of Fact (PFOF).
DOAH CASE NO. 88-0275
Petitioner's PFOF have been accepted with certain
modifications for greater clarity and to conform to the record as a whole.
Respondent's Closing Statement is accepted in part in FOF 9. The remainder is rejected as mere argument or as based upon hearsay not properly in the record.
DOAH CASE NO. 88-0732
Petitioner's PFOF have been accepted with certain modifications for greater clarity and to conform to the record as a whole.
Respondent's Closing Statement is mere legal argument addressing the underlying facts of the previous final order finding Respondent guilty of certain violations and assessing a $1,000 fine. Absent a timely appeal, these matters are immaterial and rejected. These proposals are also rejected as mere argument.
COPIES FURNISHED:
Fred Seely, Executive Director Construction industry Licensing Board Post Office Box 2
Jacksonville, Florida 32201
G. W. Harrell, Esquire Department of Professional
Regulation
130 North Monroe Street Tallahassee, Florida 32399-0750
David L. Norris
3144 Northwest 39th Court Lauderdale Lakes, Florida 33309
Bruce D. Lamb, Esquire Department of Professional
Regulation
130 North Monroe Street Tallahassee, Florida 32399-0750
Issue Date | Proceedings |
---|---|
Sep. 30, 1988 | Recommended Order (hearing held , 2013). CASE CLOSED. |
Issue Date | Document | Summary |
---|---|---|
May 23, 1989 | Agency Final Order | |
Sep. 30, 1988 | Recommended Order | Multiple violations of building code and contractor discipline statute charged on consolidated cases; guilty on some; release on others; some go to court |
CONSTRUCTION INDUSTRY LICENSING BOARD vs LOUIS GORDON, 88-000275 (1988)
CONSTRUCTION INDUSTRY LICENSING BOARD vs. JOHN M. SNEED, 88-000275 (1988)
CONSTRUCTION INDUSTRY LICENSING BOARD vs MARVIN M. KAY, 88-000275 (1988)
CONSTRUCTION INDUSTRY LICENSING BOARD vs. LEONARDO SANCHEZ, 88-000275 (1988)
CONSTRUCTION INDUSTRY LICENSING BOARD vs. THOMAS J. EMBRO, 88-000275 (1988)