STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

PINELLAS COUNTY CONSTRUCTION ) LICENSING BOARD, )

)

Petitioner, )

)

vs. ) CASE NO. 91-5876

)

ERNEST BROWN, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, K. N. Ayers, held a formal hearing in the above- styled case on January 10, 1992, at Clearwater, Florida.

APPEARANCES

For Petitioner: Sarah Richardson, Esquire

315 Court Street Clearwater, Florida 34616

For Respondent: Ernest Brown, pro se

4727 9th Avenue South

St. Petersburg, Florida 33711 STATEMENT OF THE ISSUES

Whether Respondent violated provisions of Chapter 75-489, Laws of Florida (as amended), as more fully alleged in the Administrative Complaint dated February 6, 1991.

PRELIMINARY STATEMENT

By Administrative Complaint dated February 6, 1991, the Pinellas County Construction Licensing Board, Petitioner, seeks to revoke, suspend, or otherwise discipline the license of Ernest Brown, Respondent, as a flat work masonry specialty contractor. As grounds therefor, it is alleged that Respondent contracted with the owner (Gillespie) to provide structural masonry work for a garage the owner wanted added to her home at 7901 Garden Drive North, St.

Petersburg, Florida, although he was not licensed to perform such work or authorized to subcontract the work. It is further alleged that Respondent contracted for and repaved a driveway for another owner without first obtaining a permit for the work.

Respondent challenged the allegation in the Administrative Complaint, requested a hearing and these proceedings followed.

At the hearing, Petitioner called four witnesses, Respondent testified in his own behalf and six exhibits were admitted into evidence. There is no real dispute regarding the ultimate facts alleged. Proposed findings submitted by Petitioner are accepted. Those not included herein were deemed unnecessary to the conclusions reached. No recommended disciplinary action was submitted by Petitioner. Having considered all evidence presented, I submit the following.

FINDINGS OF FACT

1. At all times relevant hereto Ernest Brown was licensed by the Pinellas County Construction Licensing Board as a Masonry Flat Work Specialty Contractor and held License No. C-5015.

   
   

2. On July 20, 1990, Respondent entered into a contract with Kali Gillespie (Exhibit 1) to build a two story garage addition to her home at 7901 Garden Drive North, St. Petersburg, Florida. The work was commenced in a timely manner and proceeded to completion until the stucco was applied which was supposed to match the color of Gillespie's house.

   
   

3. As a Masonry Flat Work Specialty Contractor, Respondent is authorized only to contract for flat masonry construction such as driveways, slabs, etc. The work of pouring footings, laying blocks, framing and pouring lentils is work authorized to be performed by a Masonry Specialty Contractor.

   
   

4. Respondent is not licensed as a general contractor who would be authorized to subcontract work for which the general contractor may not be qualified or licensed to perform. Other than the pouring of the slab for the garage floor and stuccoing the outside of the garage, all of the work for which Respondent contracted was beyond that authorized to be performed by a Masonry Flat Work Specialty Contractor. Only an occupational license is required to apply stucco.

   
   

5. Respondent testified that he subcontracted with a licensed Masonry Specialty Contractor for the work that Respondent was not licensed to perform and that everything went well until the stucco was applied. Respondent further testified that he told Mrs. Gillespie that he would attempt to match the stucco with the color of her house, but could not guarantee a good match.

   
   

6. In May or June 1990, Respondent contracted with James J. Da Silva to replace the driveway at Da Silva's residence. The work was completed in June 1990.

   
   

7. Subsequent to the completion of the work, Da Silva was notified by the City of St. Petersburg Permitting Department that a permit was required for the driveway because part of this work was performed on the City's right of way. To obtain the after the fact permit, Da Silva was required to pay twice the normal fee of $130.

   
   

8. Respondent gave no reason at hearing for his failure to obtain the permit.

   
   

9. Both of these customers of Respondent suffered monetary damage due to Respondent's actions.

   CONCLUSIONS OF LAW

   
   

10. The Division of Administrative Hearings has jurisdiction over the parties to, and the subject matter of, these proceedings.

    
    

11. The Standard Building Code, as amended and adopted by Pinellas County, defines the scope of work to be performed by a Masonry Flat Work Specialty Contractor as limited to forming, placing and finishing of non-structural concrete on grade. A Masonry Specialty Contractor is one whose services are limited to batching and mixing of aggregates, cement and water to specifications, to laying block, laying brick and construction of fireplaces and chimneys, to mixing mortar, to constructing forms and framework for the casting and shaping of concrete, to the placing and erection of reinforcing steel and miscellaneous embedded steel, and to the pouring, placement and finishing of concrete.

    
    

12. Most of the work for which Respondent contracted with Mrs. Gillespie to perform is work that is required to be performed by a Masonry Specialty Contractor.

    
    

13. Here the Petitioner has the burden of proving the allegations in the Administrative Complaint by clear and convincing evidence. Ferris v. Turlington, 510 So.2d 292 (Fla. 1977). Petitioner has met this burden.

RECOMMENDATION

It is Recommended that a Final Order be entered finding Ernest Brown guilty of the allegations made in the Administrative Complaint and issuing him a written reprimand and an administrative fine of $500.

RECOMMENDED this 17th day of January, 1992, in Tallahassee, Florida.

K. N. AYERS Hearing Officer

Division of Administrative Hearings The Desoto Building

1230 Apalachee Parkway

Tallahassee, FL 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 17th day of January, 1992.

COPIES FURNISHED:

Sarah Richardson, Esquire Assistant County Attorney

315 Court Street Clearwater, FL 34616

Ernest Brown

4727 9th Avenue South St. Petersburg, FL 33711

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS:

All parties have the right to submit written exceptions to this Recommended Order. All agencies allow each party at least 10 days in which to submit written exceptions. Some agencies allow a larger period within which to submit written exceptions. You should contact the agency that will issue the final order in this case concerning agency rules on the deadline for filing exceptions to this Recommended Order. Any exceptions to this Recommended Order should be filed with the agency that will issue the final order in this case.

Docket for Case No: 91-005876

Orders for Case No: 91-005876