STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

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

)

Petitioner, )

)

vs. ) CASE NO. 89-0739

)

HERMAN W. DUFFUS, )

)

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 April 19, 1989 in Port Charlotte, Florida. Thereafter the parties filed proposed recommended orders which were considered in preparation of this recommended order. Petitioner's proposed recommended order is substantially incorporated in this Recommended Order and Respondent's proposed recommended order is, with the exception of the recommended penalty, in agreement with Petitioner's proposed recommended order.

APPEARANCES

For Petitioner: Elizabeth R. Alsobrook, Esquire

Department of Professional Regulation 1940 North Monroe Street, Suite 60

Tallahassee, Florida 32399-0792

For Respondent: David K. Oaks, Esquire

OAKS AND JOHNSON

The Professional Center

201 W. Marion Avenue, Suite 205 Punta Gorda, Florida 33950

STATEMENT OF THE ISSUES

Whether or not Respondent has been disciplined by the local Charlotte County Building Department, and if so what, if any, administrative penalty is appropriate.

FINDINGS OF FACT

1. Herman W. Duffus, herein Respondent, is licensed as a registered specialty contractor holding license no. RX 0048193 in the State of Florida. Respondent obtained his local certifications by being "grandfathered" in. At all times material hereto Respondent was so licensed.

2. The Department of Professional Regulation, Construction Industry Licensing Board (herein Petitioner) was and is the State agency charged with the regulation of contractors in Florida. Jeffrey Deboer, a building code official employed by the Charlotte County Building Department, investigated a complaint filed against Respondent by Catherine Wolfe during mid-October, 1987. As a result of Deboer's investigation, Respondent was issued three notices of violation for engaging in the performance of electrical and plumbing contracting without first obtaining a certificate of competency in those two trades, for violating local ordinances and/or the Charlotte County zoning regulations and for engaging in electrical and plumbing contracting without first obtaining a- permit as required.

   
   

3. At the time of the above-referenced investigation, Respondent had been hired by Catherine Wolfe to install a sprinkler system to her home in Port Charlotte, Florida. Respondent holds several local licenses to engage in the trades of carpentry, masonry, aluminum and installation of sprinkler systems. However, he is not licensed to engage in electrical and plumbing contracting.

   
   

4. Following Deboer's issuance of the three citations to Respondent on October 16, 1987, a hearing was scheduled with Respondent before the Charlotte County Licensing Board on December 3, 1987, at which hearing Respondent attended. Respondent was found guilty of engaging in electrical and plumbing contracting without a license, violating local ordinances and the Charlotte County Zoning Regulations and failing to obtain a permit as required to engage in electrical and plumbing work for the work he did for Catherine Wolfe. Specifically, Respondent was found guilty of violating Ordinance 83-04, Section 10, Ordinance 83-04 amended by 84-15, Section 2, SSA, 10 and Ordinance 83-04 amended by 83-11, Section 2(a), Charlotte County Ordinances. As a result of those violations, Respondent's sprinkler system license was suspended for 60 days by the Charlotte County Building and Licensing Board.

   
   

5. Prior to the above-referred incident, Respondent had been previously disciplined by Charlotte County for doing work outside the scope of his license in February, 1985 and as a result thereof, his aluminum and carpentry licenses were suspended for 30 days. Finally, Respondent was previously disciplined by Petitioner during March, 1986. (Petitioner's Exhibit 5).

   
   

6. After Respondent was cited for violating the Charlotte County Ordinances in December 1987, he engaged the services of a licensed electrical contractor and has paid the requisite fee to correct the items for which he was cited and found guilty of violating to include payment of the requisite fees for obtaining the permits.

   
   

7. Respondent is 76 years old and is semi-retired although he needs to continue his livelihood in contracting to satisfy his financial obligations.

   
   

   CONCLUSIONS OF LAW

   
   

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

   
   

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

10. Pursuant to Section 489.129(1), Florida Statutes, the Construction Industry Licensing Board is empowered to take disciplinary action against a licensed contractor and provides in pertinent part as follows:

    
    

    The Board may revoke, suspend, or deny the issuance or renewal of the certificate of registration of a contractor or 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:

    
    

    489.129(1)(i): Disciplinary action by any municipality or county, which actions shall be reviewed by the state board before the state board takes any disciplinary action of its own.

    
    

11. Petitioner has established, by clear and convincing evidence, that Respondent was found guilty of violating the Charlotte County Ordinances and that his permits/license privileges for sprinkler system installation was suspended for 60 days by the Charlotte County Building Department on December 3, 1987. Additionally, this action has been reviewed by the State Board (Petitioner) prior to initiation of the subject disciplinary action. Petitioner has established by clear and convincing evidence that Respondent has previously been disciplined by the Construction Industry Licensing Board.

    
    

12. Florida Administrative Code 21E-17.001 provides the penalty ranges to be considered in disciplinary cases in pertinent part as follows:

    
    

    21E-17.001(p)

    489.129(1)(i): Local Disciplinary Action, Here, for the violation most closely resembling the act for which Respondents underlying conviction i.e., repeat violation, revocation.

    
    

13. That Section also provides the following penalty for acts constituting the violations for which Respondent was found guilty in violation of the Charlotte County Ordinances, to wit:

    
    

    Unlicensed contracting (Florida Administrative Code 21E-17.001(b) first violation, letter of guidance; repeat violation, $250-$750 fine.

    
    

    1. Failure to comply with local law or (Florida Administrative Code) Section 21E-17.001(t), provides:

       
       

       Violation of state or local laws. First violation, $250-$750 fine; repeat violation

       $1,000-$3,000 fine.

    2. Failure to obtain a permit. (Florida Administrative Code, Section 21E- 17.001(e), provides:

    
    

    (Late permits...)(2) Job finished without a permit until caught after job, or late permit during job resulting in missed inspection or inspections. First violation, $250-$700 fine; repeat violation, $1,000-$2,000 fine.

    
    

14. Clear and convincing evidence was offered herein to establish that Respondent engaged in a repeat violation within the purview of Section 21E- 17.003, Florida Administrative Code.

RECOMMENDATION

Based on Respondent's age and demonstrated need to continue practicing his livelihood in the construction business, his willingness to, and in fact, the correction of the electrical problems for which he is now being cited, such factors are herein considered in mitigation of penalty. Based thereon, and in view of 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 aggregate amount of $1,000 which fine shall be payable by Respondent to Petitioner within 30 days of entry of the final order. Further, to insure payment of the fine, the final order shall provide that Respondent's license shall be suspended, effective 30 days from the date of the final order, for a period of 30 days and provided the administrative fine is paid within the required time, the suspension will not be imposed. If the fine is paid after the 30 days but during the effective period of suspension the suspension will be suspended when paid. 1/

DONE and ENTERED this 26th day of July, 1989, in Tallahassee, Leon County, 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 26th day of July, 1989.

ENDNOTE

1/ Although Petitioner has proved a case which would either justify imposition of an administrative fine in the aggregate amount of $2,250.00 and/or revocation of Respondent's license, in view of the mitigating factors shown by Respondent, this Recommendation is in accord with guidelines set in Chapter 21E-17, Florida Administrative Code.

COPIES FURNISHED:

Elizabeth R. Alsobrook, Esquire Department of Professional Regulation 1940 North Monroe Street, Suite 60

Tallahassee, Florida 32399-0792

David K. Oaks, Esquire OAKS AND JOHNSON

The Professional Center

201 W. Marion Avenue, Suite 205 Punta Gorda, Florida 33950

Fred Seely, Executive Director Construction Industry Licensing Board Post Office Box 2

Jacksonville, Florida 32201

Kenneth Easley, Esquire General Counsel

Department of Professional Regulation 1940 North Monroe Street, Suite 60

Tallahassee, Florida 32399-0729

Docket for Case No: 89-000739

Orders for Case No: 89-000739