STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF PROFESSIONAL )

REGULATION, CONSTRUCTION )

INDUSTRY LICENSING BOARD, )

)

Petitioner, )

)

vs. ) CASE NO. 88-0789

)

J. E. PATTERSON, )

)

Respondent. )

)

RECOMMENDED ORDER

Final hearing in this proceeding was held on October 4, 1988, in Sanford, Florida, before Mary Clark, Hearing Officer from the Division of Administrative Hearings.

The parties were represented as follows:

FOR PETITIONER: David E. Bryant, Esquire

1107 E. Jackson, Suite 104

Tampa, Florida 33602 FOR RESPONDENT: No appearance

BACKGROUND AND PROCEDURAL MATTERS

J. E. Patterson responded to an administrative complaint dated November 2, 1987, with a request for formal hearing. His address was a post office box in Minneola, Florida.

The hearing was set for June 29, 1988, and notice was sent to the Minneola address. Although the notice was not returned, Mr. Patterson informed counsel for Petitioner that he never received any mail regarding his hearing. He gave a new address in Umatilla, Florida. The hearing was reset and notice was sent to the Umatilla address.

Mr. Patterson failed to appear at the hearing or to send a representative. In the absence of a request for continuance or any basis to further continue the proceeding, the hearing was convened. The Department of Professional Regulation presented its one witness and several exhibits in support of the allegations in the administrative complaint.

Neither party filed post-hearing briefs or proposed recommended orders.

ISSUES

The administrative complaint alleges that J. E. Patterson is licensed as a registered plumbing contractor and as a registered air conditioning contractor, and that he committed these violations of Chapter 489, Florida Statutes: that he did business in a name not included on his license, that he failed to properly update his address with the Board, and that he failed to properly supervise the activity of the firm which undertook construction work under his name. The issue for disposition is whether the violations occurred, and if so, what discipline is appropriate.

FINDINGS OF FACT

1. The records of the Department of Professional Regulation (DPR) reveal that J. E. Patterson has three active licenses, issued pursuant to Chapter 489, Florida Statutes, governing contractors: an electrical contractor's license (ER 0010700), a plumbing contractor's license (RF 005243), and an air conditioning contractor's license (RA 0052424). None of these licenses has ever qualified a firm named "Pro-Mech". The addresses on the licenses are Merritt Island and Titusville, Florida, in Brevard County.

   
   

2. Bobby J. Hunter, Sr. is an Investigator Specialist II for DPR who has investigated construction industry license complaints for approximately fourteen years.

   
   

   After receiving a complaint from a building official, Mr. Hunter conducted an investigation of Mr. Patterson and a firm called "Pro-Mech".

   
   

3. The investigation included a telephone interview and a personal contact with J. E. Patterson. Patterson admitted to Mr. Hunter that he had done contracting business as "Pro- Mech", and that he did not send change of status forms or apply to have the firm qualified because the firm had become insolvent.

   
   

   Patterson did not admit the other violations.

   
   

4. No prior disciplinary actions against this licensee were alleged or proven.

   
   

   CONCLUSIONS OF LAW

   
   

5. The Division of Administrative Hearings has jurisdiction in this proceeding pursuant to Sections 120.57(1), Florida Statutes and 455.225(4), Florida Statutes.

   
   

6. The Petitioner has the burden of proving that Respondent committed the violations alleged in the administrative complaint. Ferris v. Turlington, 510 So.2d 292 (Fla. 1987).

   
   

7. J. E. Patterson's electrical contractor's license is not at issue, as no allegations of the complaint address that license.

   
   

8. The provisions of Chapters 455 and 489, Florida Statutes which Patterson has allegedly violated are:

   Section 489.l29(1)(g), Florida Statutes and Section 489.119, Florida Statutes, which pro- hibit acting as a contractor under a cer- tificate or registration except in the

   name of the certificate holder or registrant.

   
   

   Section 489.129(1)(c), Florida Statutes and Section 455.227(1)(b), Florida Statutes regarding violation of a board rule. (The administrative complaint does not cite which rule was violated.)

   
   

   Section 489.129(1)(m), Florida Statutes, Section 489.119, Florida Statutes and Section 489.105(4), Florida Statutes re- lating to negligence and the duties of a qualifying agent to supervise and control the activities of his business entity.

   
   

9. Although hearsay, the admissions by J. E. Patterson to DPR's investigator are competent evidence of his guilt as to his failure to qualify his company. Subsection 90.803(18)(a), Florida Statutes.

   
   

   The documents from Lake County and the testimony of Investigator Hunter regarding what other persons told him are likewise hearsay but there is insufficient foundation to establish that this evidence should also be deemed competent. No official from Lake County testified regarding the records and they were not certified. Nor was there independent evidence of the relationship between Patterson and his alleged business associate, Harold Howard, in order to qualify Howard's statements as admissions by an agent or servant pursuant to subsection 90.803(18)(d), Florida Statutes.

   
   

10. Department of Professional Regulation proved the violation of Section 489.129(1)(g) and 489.119, Florida Statutes. The violations regarding an update of Patterson's address and his failure to properly supervise were not proven.

Rule 21E-17.001(1), Florida Administrative Code, establishes a letter of guidance as the appropriate penalty for a first violation of Sections 489.129(1)(g) and 489.119, Florida Statutes.

RECOMMENDATION

Based upon the foregoing, it is hereby RECOMMENDED: that J.E. Patterson be found guilty of violating Sections 489.129(1)(g) and 489.119, Florida Statutes and that a letter of guidance be issued.

DONE and ORDERED this 15th day of November, 1988, in Tallahassee, Florida.

MARY CLARK

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 November, 1988.

COPIES FURNISHED:

David Bryant, Esquire

1107 E. Jackson, Suite 104

Tampa, Florida 33602

J. E. Patterson

Post Office Box 2505 Umatilla, Florida 32784

Bruce D. Lamb, Esquire General Counsel

Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32399-0750

Lawrence A. Gonzalez Secretary

Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32399-0750

Fred Seely Executive Director

Construction Industry Licensing Board Department of Professional

Regulation

Post Office Box 2 Jacksonville, Florida 32201

Docket for Case No: 88-000789

Orders for Case No: 88-000789