STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF PROFESSIONAL )

REGULATION, )

)

Petitioner, )

)

vs. ) CASE NO. 89-5648

)

ROBERT LAMBERT, )

d/b/a The Screenbuilders/ )

Aluminum Trim, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, Mary Clark, held a formal hearing in the above- styled case on February 2, 1990, in Orlando, Florida.

APPEARANCES

For Petitioner: Jack McRay, Esquire

Dept. of Professional Regulation 1940 North Monroe street, Suite 60

Tallahassee, Florida 32399-0792

For Respondent: Robert Lambert, pro se

1410 Elk Court

Apopka, Florida 32712-3026

STATEMENT OF THE ISSUES

An administrative complaint dated June 7, 1989, alleges that Respondent violated Chapter 489, F.S., governing the construction industry, by completing a contracting job without having obtained a local building permit.

The issue in this proceeding is whether the violation occurred, and if so, what discipline is appropriate.

An ancillary issue is what effect, if any, Respondent's discharge in bankruptcy dated January 9, 1989, would have on any penalty in this case.

PRELIMINARY STATEMENT

In response to the administrative complaint, Robert Lambert denied his guilt and requested a formal hearing.

At the hearing, Petitioner presented the testimony of a single witness and six exhibits, received in evidence without objection. Respondent testified in his own behalf and presented a single exhibit, his discharge in bankruptcy.

The transcript was filed on February 20, 1990, and Petitioner filed its Proposed Recommended Order on March 1, 1990. The findings of fact proposed by petitioner have been substantially adopted herein.

FINDINGS OF FACT

1. At all times material, and between July 1985 and July 1989, Robert Lambert was licensed by the Florida Construction Industry Licensing Board as a Registered Aluminum Specialty Contractor, with license number RX-0048976.

   
   

2. Robert Lambert was the sole qualifying agent for The Screenbuilders Aluminum Trim, 1410 Elk Court, Apopka, Florida, a partnership business in which Lambert was a partner.

   
   

3. In June 1987, the Screenbuilders entered into a written contract with Cecil Floyd to construct a carport and screened-in porch and new roof over Mr. Floyd's home at 741 Baron Road, Orlando, Orange County, Florida.

   
   

4. The entire job was completed without Lambert's having obtained a building permit from the Orange County Building Department.

   
   

5. Section 103 of the Standard Building Code of 1985, as adopted in the Orange County Building Code, requires that a building permit be obtained prior to altering, repairing, improving, converting, constructing, or demolishing any building or structure in the jurisdiction. (Petitioner's exhibits #2 and #3)

   
   

6. Respondent and his agents knew that they needed a permit from the Orange County Building Department. For other jobs they had routinely obtained permits.

   
   

7. After the work commenced, Lambert attempted to obtain a permit for the job. The building department would not accept the paperwork he offered and Cecil Floyd refused to pay for another plat as he had already paid out the entire contracted for monies for the job.

   
   

8. To date, no permit for the Floyd job has been obtained.

   
   

9. Robert Lambert's licensure file reveals several prior disciplinary actions, including revocation on January 11, 1990. As of the date of hearing, no final order on that action had been issued.

   
   

10. On January 9, 1989, George L. Proctor, Bankruptcy Judge for the U.S. Bankruptcy Court, Middle District of Florida, entered a "Discharge of Debtor", providing as follows:

    
    

    DISCHARGE OF DEBTOR

    
    

    It appears that the person named above filed a petition commencing a case under title 11, United States Code on August 29, 1988 , that an order for relief was entered under chapter 7, and that no complaint

    objecting to the discharge of the debtor was filed within the time fixed by the court [or that a complaint objecting to discharge of the debtor was filed and, after due notice and hearing, was not sustained].

    
    

    IT IS ORDERED THAT:

    1. The above-named debtor is released from all dischargeable debts.

    2. Any judgement heretofore or hereafter obtained in any court other than this court is null and void as a determination of the personal liability of the debtor with respect to any of the following:

       1. debts dischargeable

          under 11 U.S.C. Section 523;

       2. unless heretofore or hereafter determined by order of this court to be nondischargeable, debts alleged to be excepted from the discharge under clauses (2), (4)

          and (6) of 11 U.S.C. Section 523 (a);

       3. debts determined by this court to be discharged.

    3. All creditors whose debts are discharged by this order and all creditors whose

       are declared null and void by paragraph 2 above are enjoined from instituting or continuing any action or employing any process or engaging in any act to collect such debts as personal liabilities of the above-named debtor.

       Respondent Exhibit #1

       
       

       CONCLUSIONS OF LAW

       
       

11. The Division of Administrative Hearings has jurisdiction over the parties and subject matter in this proceeding pursuant to Sections 1,20.57(1), F.S. and 455.225(4), F. S.

    
    

12. Section 489.129(1), F.S. provides for discipline of a contractor's certificate or registration for

    
    

    * * *

    1. Willfully or

    disregarding and violating the, applicable building codes or laws of

    the state or of any municipalities or counties thereof.

    * * *

    
    

    As qualifier of his construction company, Robert Lambert was responsible for the supervision of the business organization, for all field work at all job sites and for the financial matters related generally to the business and to each specific job. Section 489.1195(1), F.S.

    
    

13. Robert Lambert violated Section 489.129(1)(d), F.S. by failing to obtain a permit for the construction under the contract with Cecil Floyd, as required by Section 103 of the Orange County Building Department Code.

    
    

14. Title 11 U.S. Code, Section 523, cited in Respondent's bankruptcy discharge, specifically exempts from discharge such debts which are fines, penalties or forfeitures payable to and for the benefit of a governmental unit, which are not compensation for actual pecuniary loss. 11 U.S.C. 523(a)(7). Therefore, Respondent's bankruptcy is not an impediment to disciplinary action in this case.

    
    

15. Rule 21E-17.001, F.A.C., provides the Board's disciplinary guidelines for violations of Chapter 489, F.S.

For finishing a job without a permit, the first violation warrants a

$250.00 to $750.00 fine. Repeat violations, defined as violations by a licensee who has previously been disciplined, warrant a fine of $1,000.00 to $2,000.00.

Counsel for Petitioner has suggested the minimum fine for a repeat violation.

RECOMMENDATION

Based on the foregoing, it is hereby, RECOMMENDED

That Respondent, Robert Lambert, be found guilty of violation of Section 489.129(1)(d), F.S. and fined $1,000.00.

DONE AND RECOMMENDED this 22nd day of March, 1990, in Tallahassee, Leon County, Florida.

MARY CLARK

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 22nd day of March, 1990.

COPIES FURNISHED:

Jack L. McRay, Esquire

Dept. of Professional Regulation 1940 N. Monroe St., Suite 60

Tallahassee, FL 32399-0792

Robert Lambert 1410 Elk Court

Apopka, FL 32712-3026

Kenneth D. Easley, General Counsel Dept. of Professional Regulation 1940 N. Monroe St., Suite 60

Tallahassee, FL 32399-0792

Fred Seely, Executive Director Construction Industry Licensing Board

P.O. Box 2 Jacksonville, FL 32202

Docket for Case No: 89-005648

Orders for Case No: 89-005648