STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

PINELLAS COUNTY CONSTRUCTION ) LICENSING BOARD, )

)

Petitioner, )

)

vs. ) CASE NO. 93-5914

)

JOHN S. DAVIS, II, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, William F. Quattlebaum, held a formal hearing in the above-styled case on August 16, 1994, in St. Petersburg, Florida.

APPEARANCES

For Petitioner: William J. Owens, Executive Director

Pinellas County Construction Licensing Board

11701 Belcher Road, Suite 102

Largo, Florida 34643-5116

For Respondent: John S. Davis, II, pro se

6727 126th Avenue North Largo, Florida 34643

STATEMENT OF THE ISSUE

Whether the allegations of the Administrative Complaint are correct and, if so, what penalty should be imposed.

PRELIMINARY STATEMENT

On October 4, 1993, the Pinellas County Construction Licensing Board (Petitioner) filed an Administrative Complaint against John S. Davis II, alleging that Davis had contracted to rebuild a boat dock, that proper permits were not obtained, and that the work was failed to meet applicable building codes. Mr. Davis disputed the complaint and requested a formal hearing. The matter was referred to the Division of Administrative Hearings for further proceedings. The matter was scheduled for hearing and was subsequently rescheduled at the request of the parties.

At the hearing, the Petitioner presented the testimony of four witnesses and had exhibits 1-6 admitted into evidence. The Respondent testified on his own behalf. A copy of a booklet "The Pinellas County Construction Licensing Board" was admitted as a Hearing Officer's exhibit. The hearing was taped and the Hearing Officer took possession of the tape.

Neither party filed a proposed recommended order. The Respondent submitted copies of documents apparently indicating his attempts to resolve this matter.

No leave was granted to permit the late filing of exhibits. The documents are rejected.

FINDINGS OF FACT

1. On or about April 30, 1993, a man identifying himself as "Mr. Sapp," entered into a contract with Richard Leslie Hennig, 2184 Harbor View Drive, Dunedin, Florida, for repairs to a dock located at Hennig's home. "Mr. Sapp" was a sales representative for building contractor John S. Davis II.

   
   

2. The contract admitted into evidence at the hearing states that it is "subject to office approval." There is no credible evidence that the Respondent saw or approved the contract entered into evidence at hearing. There is no credible evidence that "Mr. Sapp" disclosed the extent of the agreement to the Respondent.

   
   

3. It is the Respondent's standard business practice to sign a sales contract when it is approved. The contract admitted into evidence was not signed by the Respondent. The signature on the contract indicates that the contract was signed by "John Sapp."

   
   

4. There is no evidence that "Mr. Sapp" was authorized to execute formal contracts on behalf of or to otherwise bind the Respondent without the final approval of the Respondent.

   
   

5. Count One of the Administrative Complaint alleges that the Respondent contracted with Hennig to rebuild the boat dock for a total of $2,800 and that a deposit of $1,400 was paid at the time the contract was written. There is no credible evidence that the Respondent was involved in the agreement between Hennig and the alleged "Mr. Sapp." There is no evidence that the $1,400 deposit was forwarded to or received by the Respondent.

   
   

6. Count One further alleges that the dock construction fails to meet applicable building codes and constitutes gross negligence, incompetence or misconduct in the practice of contracting. The evidence establishes that the pilings used in the project are undersized or missing and that lumber used in the project fails to meet the required dimensions for compliance with the codes. There is no credible evidence that the Respondent participated in the project or was responsible for the quality or sufficiency of materials used therein.

   
   

7. Count Two of the complaint alleges that the Respondent did not obtain proper permits for the work. The evidence establishes that the permits obtained for this project were inappropriate and did not permit the extent of construction required to provide the dock sought by Hennig. There is no credible evidence that the Respondent participated in planning the project. There is no evidence that the Respondent bore any responsibility for the permits or lack thereof.

   
   

8. The Respondent testified that "Mr. Sapp" entered into a number of "side deals" of which the Respondent was unaware. There is no evidence contrary to the Respondent's testimony.

   CONCLUSIONS OF LAW

   
   

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

   
   

10. The Petitioner has the burden of proving by clear and convincing evidence the allegations against the Respondent. Ferris v. Turlington, 510 So.2d 292 (Fla. 1987). In this case, the burden has not been met.

    
    

11. The evidence fails to establish that the Respondent approved the contract entered into between the dock owner and "Mr. Sapp," the alleged "representative" of the Respondent. There is no evidence that the Respondent solicited or participated in the solicitation of this contract. There is no evidence that the project was disclosed to the Respondent or that the Respondent received funds in connection with this project. There is no evidence that the Respondent participated in the planning or permitting of this project.

RECOMMENDATION

Based on the foregoing, it is hereby RECOMMENDED that the Pinellas County Construction Licensing Board enter a Final Order dismissing the Administrative Complaint filed against John S. Davis, II.

DONE and RECOMMENDED this 27th day of September, 1994 in Tallahassee, Florida.

WILLIAM F. QUATTLEBAUM

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 27th day of September, 1994.

COPIES FURNISHED:

William J. Owens Executive Director Pinellas County

Construction Licensing Board 11701 Belcher Road, Suite 102

Largo, Florida 34643, 5116

John S. Davis, II

6727 126th Avenue North Largo, Florida 34643

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 ten 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: 93-005914

Orders for Case No: 93-005914