STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

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

)

Petitioner, ) CASE NO. 88-5190

)

vs. )

)

CHARLES H. BUTLER, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, James E. Bradwell, held a public hearing in this case on January 10, 1989, in Tampa, Florida. Thereafter the parties were granted leave to submit proposed recommended orders. Petitioner has presented a proposed recommended order which was considered in preparation of this recommended order. Petitioner's proposed recommended order is substantially adopted herein.

APPEARANCES

For Petitioner: Jack M. Larkin, Esquire

806 Jackson Street

Tampa, Florida 33602

For Respondent: Charles H. Butler, pro se

8917 Maislin Drive

Tampa, Florida 33637 STATEMENT OF THE ISSUES

The issue presented for decision herein is whether or not Respondent's contractor's license no. CBCO13872 has been the subject of disciplinary action taken by a local government (Hillsborough County, Florida), for violation of a local ordinance 86-6 relating to failure to pay bills and engaged in work which was not in compliance with the local building code, all within the purview of subsection 489.129(1)(i), Florida Statutes.

PRELIMINARY STATEMENT

On or about May 12, 1988, Petitioner, after investigation of disciplinary action by a local board against Respondent, filed an administrative complaint against Respondent alleging a violation of Section 489.129(1)(i), Florida Statutes in that he had been disciplined by a local government as follows:

Permitting privileges were suspended on or about September 4, 1987, in Hillsborough County, Florida, for a violation of local ordinance 86-6, generally

in relation to his failure to pay bills and for performing work which was not up to the local building code.

Subsequent to filing the administrative complaint, Respondent requested a formal hearing by executing an Election of Rights form. Thereafter, the case was referred to the Division of Administrative Hearings for a Section 120.57(1), Florida Statutes, hearing.

At the hearing, Petitioner called two witnesses and introduced one exhibit which was received. Respondent did not testify, call any witnesses or introduce any exhibits.

FINDINGS OF FACT

Based upon my observation of the witnesses and their demeanor while testifying, documentary evidence received and the entire record compiled herein, the following relevant facts are found:

1. At all times material hereto, Respondent was a licensed contractor in Florida having been issued license no. CBC013872.

   
   

2. On or about September 4, 1987, Respondent was disciplined by the local government, Hillsborough County Building Department, and his permitting privileges were suspended in Hillsborough County for violation of local ordinance 86-6 respecting his failure to pay bills incurred on a church project which he undertook and for engaging in construction work which failed to comply with the local building code.

   
   

3. Respondent did not testify and did not dispute any of the allegations contained in the administrative complaint.

   
   

   CONCLUSIONS OF LAW

   
   

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

   
   

5. The parties were noticed pursuant to the notice provisions of Chapter 120, Florida Statutes.

   
   

6. The authority of the Petitioner is derived from Chapter 489, Florida Statutes.

   
   

7. Section 489.129, Florida Statutes empowers the Petitioner to revoke, suspend or otherwise discipline the license of a contractor for any of the following violations of Section 489.129, Florida Statutes:

   
   

   (1)(i) Disciplinary action by any municipality or county, which action shall be reviewed by the state board before the state board takes any disciplinary actions of its own.

   
   

8. Petitioner presented clear and convincing evidence that Respondent had been disciplined by a local government and as a result thereof, his permitting privileges were suspended on or about September 4, 1987, for engaging in conduct amounting to a violation of local ordinance 86-6 relating to his failure to pay bills he incurred while working as a general contractor for a church project

which he undertook and for engaging in work which did not comply with the local building code. Petitioner has implemented Chapter 21E-17, Florida Administrative Code, to effectuate disciplinary guidelines. The penalty herein recommended comports with these guidelines since it was established that Respondent's conduct has caused a substantial monetary damage to his customer. 21E-17002(1), Florida Administrative Code.

RECOMMENDATION 1/

Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED THAT:

Petitioner enter a Final Order imposing an administrative fine against Respondent in the amount of $1,000, which fine shall be made payable to Petitioner within thirty (30) days of the entry of its Final Order and (2) Respondent's contractor's license no. CBCO13872 be suspended for a period of five (5) years with reinstatement of his license upon providing proof that he has made complete restitution to the owners, sub-contractors, materialmen and suppliers involved in the subject construction project in question.

RECOMMENDED this 17th day of February, 1989 in Tallahassee, Florida.

JAMES E. BRADWELL

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 17th day of February, 1989.

ENDNOTE

1/ This recommendation is in accord with Rule Chapter 21E-17.001(16), Florida Administrative Code.

COPIES FURNISHED:

Fred Seely Executive Director

Department of Professional Regulation

Post Office Box 2 Jacksonville, Florida 32201

Kenneth E. Easley, Esquire General Counsel

Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32399-0750

Jack M. Larkin, Esquire 806 Jackson Street

Tampa, Florida 33602

Charles Butler 8917 Maislin Drive

Tampa, Florida 33637

Docket for Case No: 88-005190

Orders for Case No: 88-005190