STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

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

)

Petitioner, )

)

vs. ) CASE NO. 88-3445

)

LEONARDO SANCHEZ, )

)

Respondent. )

)

RECOMMENDED ORDER

Upon due notice, this cause came on for formal hearing on November 1, 1988 in Miami, Florida, before Ella Jane P. Davis, a duly assigned Hearing Officer of the Division of Administrative Hearings.

APPEARANCES

For Petitioner: G. W. Harrell, Esquire, and

Donald Osterhouse, Qualified Representative Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32399-0750

For Respondent: No appearance

ISSUE

At the commencement of formal hearing, Petitioner voluntarily dismissed Paragraphs 5 and 7 of the pending Administrative Complaint, and the formal hearing proceeded upon Paragraphs 1-4 and 6 of the Administrative Complaint.

The Department of Professional Regulation prosecuted Respondent for one count of the following enumerated alleged violations: Sections 489.129(1)(d), willful or deliberate disregard of building codes; (j), failure in any respect to comply with the Act; (m), fraud, deceit, or gross negligence; and 489.105(4), Florida Statutes, all of which arise out of a single incident.

PRELIMINARY STATEMENT

At the commencement of formal hearing, Petitioner filed a Motion to Accept Mr. Donald R. Osterhouse as a Qualified Representative on behalf of Petitioner. The motion was deemed duly filed pursuant to Rule 22I-6.003(1), Florida Administrative Code.

Mr. Osterhouse was thereafter duly examined upon the record and accepted as Petitioner's Qualified Representative for purposes of the instant proceeding.

Petitioner presented the oral testimony of Robert G. Wolf and John Delaney and had five exhibits admitted in evidence.

A transcript of the proceedings has been provided, and the Petitioner has timely filed its proposed findings of fact and conclusions of law, the proposed findings of fact of which have been ruled upon in the Appendix to this Recommended Order, pursuant to Section 120.59(2), Florida Statutes.

FINDINGS OF FACT

1. At all times material to the Administrative Complaint, Respondent, Leonardo Sanchez, was licensed by the State of Florida as a certified general contractor holding license numbers CG C004810 and CG CA04810.

   
   

2. Robert G. Wolf, Investigator Specialist II with Petitioner, investigated a complaint made by Mirta Garcia against a contractor named Leonardo Sanchez. Ms. Garcia told him she had entered into a contract with a Mr. Sanchez; that she had paid Sanchez a sum of money for an addition to her house; that Sanchez never supplied her a written contract; and that Sanchez pulled a permit for the work and never completed it. Ms. Garcia did not appear and testify at formal hearing and her representations to Mr. Wolf are mere hearsay. They do, however, supplement or explain other competent proof.

   
   

3. Mr. Wolf spoke with a Mr. Sanchez who, in Mr. Wolf's words "acknowledged the contractual relationship with the Garcias." (TR-15)

   
   

4. Mr. Wolf visited Ms. Garcia's home and determined that a job of construction had been begun there but that interior work had yet to be completed.

   
   

5. John Delaney is Assistant Chief Code Enforcement Officer for the Board of Rules and Appeals for the Building and Zoning Department, Dade County. He also visited the Garcia home and on August 18, 1987 it was approximately 80 per cent complete, in his opinion. He presented as a certified business record, a building permit application for an owner "Mirta Garcia" by "Caribean Window" [sic] applied for in the name of Leonardo Sanchez, dated "accepted 12/9/85," and carrying the contractor number CGC004810 and the social security number 109-42- 4859 (P-2). The contractor number and social security number on the application match Respondent's contractor's license and social security number. "Caribbean Window" is one of the entities for which Respondent is the registered qualifying agent.

   
   

6. Dade County Ordinance 57-22 establishes that the South Florida Building Code was in effect in Dade County at all times material to this Administrative Complaint.

   
   

7. Section 305.2(a) of the South Florida Building Code establishes a mandatory duty for the permit holder to obtain a reinforcing inspection.

   
   

8. Mr. Delaney also presented a certified computer printout of a Building Inspection log or record (P-3) showing that no one, including Respondent, had obtained the required reinforcing inspection related to the Garcia job as of the date of the computer inquiry. The computer printout reflects the dates of other inspections and the date and number of the application to which it pertains; it does not clarify when Mr. Delaney made his computer inquiry but a reasonable inference is that it was made the date of his visit to the Garcia home, August 18, 1987.

9. No reason was presented to excuse Respondent as permit holder from obtaining the appropriate inspection.

   
   

   CONCLUSIONS OF LAW

   
   

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

    
    

11. Section 489.129, Florida Statutes, provides, in pertinent part, that:

    
    

    1. The Board may revoke, suspend ... impose an administrative fine not to exceed

       $5,000, place a contractor on probation, or reprimand or censure 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.

12. Section 489.105(4) provides, in pertinent part that: 'Contractor' means the person who is

    qualified for and responsible for the entire project contracted for.

    
    

13. Reasonable inferences applied to the direct evidence in this cause support the conclusion that the Respondent in this case obtained a building permit and, absent some release from the job, of which there is no evidence whatsoever, was required by local law to obtain a reinforcing inspection. The evidence that Respondent was still the contractor of record on the Garcia job was not rebutted. Petitioner has therefore demonstrated that Respondent failed to comply with local law, either willfully or in deliberate disregard of the applicable building codes, in violation of Section 489.129(1)(d), Florida Statutes.

    
    

14. There is insufficient proof of a violation of Subsection (1)(m). A violation of Subsection (1)(j) has not been proved in its own right and any guilt established thereunder is based upon the same omission which established a violation of (1)(d).

    
    

15. Petitioner requested an administrative fine of $250 be assigned as penalty; this is appropriate. See Rule 21E-17.001(8), Florida Administrative Code.

RECOMMENDATION

Upon the foregoing findings of fact and conclusions of law, it is recommended that the Construction Industry Licensing Board enter a Final Order finding Respondent guilty of violating Section 489.129(1)(d), assessing an administrative fine therefor of $250.00, and dismissing the remaining charges.

DONE and RECOMMENDED this 29th day of December, 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 29th day of December, 1988.

APPENDIX TO RECOMMENDED ORDER, CASE NO. 88-3445

The following constitute specific rulings upon the parties' respective proposed findings of fact (PFOF) pursuant to Section 120.59(2), Florida Statutes.

Petitioner's PFOF

1-7 are accepted as modified to reflect the evidence of record. Respondent's PFOF

Respondent submitted no proposals.

COPIES FURNISHED:

Fred Seely, Executive Director Construction Industry Licensing Board Department of Professional

Regulation

130 North Monroe Street Tallahassee, Florida 32399-0750

G. W. Harrell, Esquire, and

Donald Osterhouse, Qualified Representative Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32399-0750

Leonardo Sanchez

12700 Southwest 37 Street

Miami, Florida 33175

Bruce D. Lamb, Esquire Department of Professional

Regulation

130 North Monroe Street Tallahassee, Florida 32399-0750

Docket for Case No: 88-003445

Orders for Case No: 88-003445