STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

PINELLAS COUNTY CONSTRUCTION ) LICENSING BOARD, )

)

Petitioner, )

)

vs. ) CASE NO. 95-3515

)

AUGUST NOCELLA, )

)

Respondent. )

)

RECOMMENDED ORDER

On January 9, 1996, a formal administrative hearing was held in this case in St. Petersburg, Florida, before Carolyn S. Holifield, Hearing Officer, Division of Administrative Hearings.

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 E. Swisher, Esquire

669 First Avenue North

St. Petersburg, Florida 33701 STATEMENT OF THE ISSUE

Whether Respondent committed the acts alleged in the Administrative Complaint and, if so, what disciplinary action should be imposed by Petitioner.

PRELIMINARY STATEMENT

On June 7, 1995, Petitioner, Pinellas County Construction Licensing Board, issued an Administrative Complaint against Respondent, August Nocella, alleging in four counts, that he violated Chapter 75-489, Laws of Fla., as amended by Chapters 78-594, 81-466, 85-490, 89-504, and 93-387, Laws of Fla.

Specifically, Count I alleges that Respondent violated the Standard Building Code by failing to obtain a building permit prior to beginning a construction project. Count II alleges that Respondent failed to request an inspection in violation of the Standard Building Code. Petitioner alleges in Count III that Respondent contracted to perform work outside the scope of his license. Finally, Count IV alleges the Respondent subcontracted the construction of a deck to an unlicensed person or firm. It is alleged that these acts of Respondent constitute violations of Chapter 75-489, Laws of Fla., as amended.

Respondent denied the allegations contained in the Administrative Complaint and requested a formal hearing. By letter dated July 6, 1995, the Petitioner referred the matter to the Division of Administrative Hearings. The formal hearing was originally set for September 26, 1995. However, based on a motion to continue filed by Respondent, the hearing was reset for January 9, 1996, when it was held as scheduled.

At the hearing, Petitioner presented two witnesses and offered eight exhibits into evidence. An additional exhibit offered by Petitioner, a computerized summary of work, was accepted as a late-filed exhibit. Respondent testified on his own behalf and offered three exhibits into evidence. Official recognition was taken of all pertinent provisions of the Standard Building Code.

The hearing was recorded but not transcribed. Petitioner timely filed proposed findings of fact and conclusions of law. Respondent did not submit a proposed recommended order.

Explicit rulings on the proposed findings of fact contained in the Petitioner's proposed recommended order may be found in the attached Appendix to Recommended Order, Case No. 95-3515.

FINDINGS OF FACT

1. At all times pertinent to this proceeding, Respondent, August Nocella, was a certified aluminum contractor having been issued license number C-3197. Respondent was the certified contractor for Allied Aluminum Company (Allied Aluminum), 1017 Robinson Drive, St. Petersburg, Florida.

   
   

2. On March 28, 1994, Mr. Tim Connolly contracted with Allied Aluminum to build a screen enclosure on an existing second floor deck. The screen enclosure was to be constructed at Mr. Connolly's residence located at 2200 Park Street, St. Petersburg, Florida, at a cost of $2,897.00.

   
   

3. The proposal submitted to Mr. Connolly by Allied Aluminum on March 28, 1994, contained an option under which a third floor wood deck would be constructed for $2,000.00. Pursuant to the proposal, Mr. Connolly had ninety days in which to exercise this option. The proposal stated in part the following:

   
   

   <90 days from March 28, 1994, build wood

   deck approximately 400 square feet at $2,000>

   
   

4. The proposal was not prepared or signed by Respondent, but by an employee of Allied Aluminum. The inclusion in the proposal of the option and estimate for construction of a deck was done without Respondent's knowledge or direction.

   
   

5. Pursuant to the contract between Allied Aluminum and Mr. Connolly, the screen enclosure was constructed. The construction project began on April 28, 1994, and was completed on May 3, 1994. There is no proof that Respondent did not comply with the terms of the agreement, that the construction of the screen enclosure was not performed in a workman like manner, or that the work did not conform to existing building codes.

   
   

6. The Standard Building Code, the code adopted by Pinellas County and applicable to construction projects in St. Petersburg, required that a

   contractor submit building plans and obtain a building permit prior to initiation of a construction project.

   
   

7. Respondent applied for and secured a building permit for construction of the screen enclosure on May 31, 1994, four weeks after the project was completed. Plans for the screen enclosure were submitted with Respondent's application for the building permit. Respondent was assessed and paid $44.00 for the building permit.

   
   

8. The Standard Building Code also required that the certified contractor call for an inspection of the construction project within six months of the completion date.

   
   

9. Respondent completed the screen enclosure on or about May 4, 1994, but never called for an inspection of the work.

   
   

10. At some point in April or May 1994, Mr. Connolly informed Respondent that he wanted the wood deck built under the terms and conditions set forth in the March 28, 1994 proposal. Respondent immediately told Mr. Connolly that he could not construct the third floor deck.

    
    

11. Upon being informed by Respondent that he could not build the wood deck, Mr. Connolly insisted that Respondent find someone to construct the third floor deck pursuant to the terms in the proposal. Mr. Connolly threatened to withhold payment from Respondent for construction of the screen enclosure if Respondent failed to locate someone who could construct the deck at or below the price quoted in the proposal.

    
    

12. Mr. Connolly followed through on his threats regarding payment to Respondent. On or about May 23, 1994, Mr. Connolly wrote a check to Respondent to pay for construction of the screen enclosure, but subsequently stopped payment on the check.

    
    

13. In an effort to receive payment for construction of the screen enclosure and to appease Mr. Connolly, Respondent attempted to locate a builder who would construct the third floor deck. After looking in the St. Petersburg Telephone Directory, Respondent called several companies listed as builders of decks. Decked Out Construction, Inc. (Decked Out) was one of the companies contacted by Respondent on behalf of Mr. Connolly.

    
    

14. The telephone directory entry for Decked Out contained a license number for the company as well as the address and telephone number of the business. Respondent interpreted the published license number as evidence that Decked Out was qualified to perform the type of work under which it was listed. No evidence was presented indicating that Decked Out was not so licensed.

    
    

15. On or about May 23, 1994, Decked Out sent Randy Miller to Mr. Connolly's residence to determine if it could construct the deck and, if so, to give an estimate. Mr. Miller determined that Decked Out would be able to construct the third floor deck for a cost within the price range quoted in the March 28, 1994 proposal.

    
    

16. After Respondent was informed by Randy Miller that Decked Out could construct the deck for the amount stated in the March 28, 1994 proposal, there was no further contact between Respondent and Mr. Miller. All communication regarding construction of the wood deck at 2200 Park Street North was between Mr. Connolly and Mr. Miller.

17. The deck was constructed by Decked Out on or about May 26, 1994, at a cost of $1010.00. The construction project took about one day. The $1010.00 payment for construction of the third floor deck was given directly to Mr. Miller by Mr. Connolly.

    
    

18. There is no evidence that Respondent's certificate as an aluminum contractor has been subjected to disciplinary action on any prior occasion by Petitioner.

    
    

19. The normal penalty imposed for a contractor's failure to obtain a building permit prior to beginning a project is payment of twice the amount of the permit.

    
    

    CONCLUSIONS OF LAW

    
    

20. The Division of Administrative Hearings has jurisdiction over the parties and subject matter of this proceeding pursuant to Section 120.57(1), Fla. Stat. (1995).

    
    

21. Chapter 75-489, Laws of Fla., as amended by Chapter 89-504, Section 24, Laws of Fla., authorizes the Petitioner to take disciplinary action against any contractor who is found guilty of various specified acts, including the following:

    
    

    1. Willfully or deliberately disregarding and violating the applicable building codes or laws of the state, this board, or of any municipality or county of this state;

       * * *

    2. Performing any act which assists a person

       or entity in engaging in the prohibited uncertified and unregistered practice of contracting, if the certificate holder or registrant knows or has reasonable grounds to know that the person or entity was uncertified or unregistered.

       * * *

       (g) Acting in the capacity of a contractor under any certificate or registration issued hereunder except in the name of the certificate holder or registrant as set forth in the certificate or registration, or in accordance with the personnel of the certificate holder

       or registrant as set forth in the application for the certificate or registration, or as later changed as provided in this part;

       * * *

       (j) Failing in any material respect to comply with the provisions of this part.

       * * *

       1. Being found guilty of fraud or deceit or of gross negligence, incompetency, or misconduct in the practice of contracting.

       2. Proceeding on any job without obtaining applicable local building department permits and inspections.

22. Respondent, as a certified aluminum contractor, is charged with the responsibility of complying with all applicable building codes adopted by Petitioner. Likewise, Respondent is subject to regulation and disciplinary action by Petitioner. Chapters 78-594 and 85-490, Laws of Fla. The scope of work for a certified aluminum contractor includes constructing screen porches and screen enclosures. See Chapter 85-490 and 93-387, Laws of Fla.

    
    

23. Petitioner has adopted the Standard Building Code which was adopted by Pinellas County pursuant to Chapter 89-504, Section 28, Laws of Fla.

    
    

24. In license discipline cases such as this, the Petitioner must prove the alleged violations by clear and convincing evidence. Ferris v. Turlington, 510 So.2d 292 (Fla. 1987).

    
    

25. Petitioner established by clear and convincing evidence the allegations contained in Count I of the Administrative Complaint. It was undisputed that Respondent proceeded with and completed construction of the screen enclosure prior to obtaining a building permit as required by the Standard Code. His failure to obtain a building permit prior to undertaking the work constitutes a willful disregard and violation of the Standard Building Code. Consequently, the proof demonstrates that Respondent violated Chapter

    89-504, Section 24(2)(d) and (n), Laws of Fla.

    
    

26. Petitioner has met its burden in regard to Count II of the Administrative Complaint. The clear and convincing evidence is that upon completion of the screen enclosure at the Connolly residence, Respondent failed to call for an inspection of the job as required by the Standard Building Code. Such failure constitutes a willful disregard and violation of the Standard Building Code, and thus a violation of Chapter 89-504, Section 24 (2)(d) and (n), Laws of Fla.

    
    

27. With regard to Count III, Petitioner failed to meet its burden. Petitioner argues that the proposal for construction of a deck is evidence that Respondent contracted to perform work outside the scope of his certificate. However, the evidence at hearing does not support this position. First, the proposal was executed by another employee of Allied Aluminum, not Respondent. Second, once Mr. Connolly expressed a desire to have the deck constructed, Respondent immediately informed Mr. Connolly that Allied Aluminum could not construct the deck. In light of these facts, it is unreasonable to attribute the employee's error to Respondent, and then to penalize Respondent for such mistake. Petitioner failed to prove by clear and convincing evidence that Respondent contracted to perform work outside the scope of his certificate in violation of Chapter 89-504, Section 24(g), Laws of Fla.

    
    

28. Petitioner failed to prove by clear and convincing evidence that Respondent engaged in misconduct in the practice of contracting as alleged in Count IV. This allegation is premised on Petitioner's assertion that Respondent subcontracted the construction of the deck to an unlicensed person or firm in violation of Chapter 89-504, Section 24(2)(m), Laws of Fla. Competent and substantial evidence demonstrated that it was at Mr. Connolly's insistence that Respondent attempted to locate a builder who could construct the deck. To this end, Respondent called firms listed in the telephone directory as being in the business of constructing decks. Respondent then referred one such firm to Mr. Connolly. Further, the evidence showed that a license number was listed in the telephone directory listing for Decked Out. Based on this, it was reasonable for Respondent to assume that the firm was licensed to perform the type of work

    it was listed as doing. Petitioner failed to meet the required standard of proof with regard to Count IV of the Administrative Complaint.

    
    

29. Petitioner is authorized to suspend certificate holders from all operations as contractors, suspend or revoke certificates, impose administrative fines not to exceed $1000.00, require restitution, and impose reasonable investigative and legal costs. Chapter 89-504, Section 24, Laws of Fla., and Chapter 93-387, Section 24, Laws of Fla.

RECOMMENDATION

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

RECOMMENDED that the Pinellas County Construction Board enter a Final Order finding Respondent, August Nocella, guilty of violating Chapter 89-504, Section 24(2)(d) and (n), Laws of Fla., and imposing a total fine of $144.00, $44.00 for failure to timely obtain a building permit, and $100.00 for failure to call for an inspection of the project.

RECOMMENDED that Count III and COUNT IV of the Administrative Complaint be DISMISSED.

DONE and ENTERED this 26th day of February, 1996, in Tallahassee, Florida.

CAROLYN S. HOLIFIELD, 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 February, 1996.

APPENDIX TO RECOMMENDED ORDER, CASE NO. 95-3515

To comply with the requirements of Section 120.59(2), Fla. Stat. (1995), the following rulings are made on the parties' proposed findings of fact:

Petitioner's Proposed Findings of Fact.

1. Accepted and incorporated.

2. Accepted and incorporated except to extent unnecessary, irrelevant, or immaterial. Second sentence rejected as to the request that was made on April 20, 1995. The evidence shows that an inspection, not a permit, was requested on that date.

3. Rejected as not supported by the greater weight of the evidence.

4. Accepted as to statement that Respondent provided name of firm that would construct project in accordance with proposal amount. Statement that the firm or person was unlicensed is rejected as not supported by competent and substantial evidence. Second sentence is rejected as not supported by competent and substantial evidence, and by the greater weight of the evidence.

COPIES FURNISHED:

William J. Owens, Executive Director Pinellas County Construction

Licensing Board

11701 Belcher Road, Suite 102

Largo, Florida 34643-5116

John E. Swisher, Esquire 669 First Avenue North

St. Petersburg, Florida 33701

Howard Bernstein

Senior Assistant County Attorney Pinellas County

315 Court Street Clearwater, Florida 34616

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions to the 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 consult with the agency that will issue the Final Order in this case concerning their 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.

================================================================= AGENCY FINAL ORDER

================================================================= PINELLAS COUNTY CONSTRUCTION LICENSING BOARD

PINELLAS COUNTY CONSTRUCTION LICENSING BOARD,

Petitioner,

vs. CASE NO. C95-403

DOAH CASE NO. 95-3515

AUGUST NOCELLA

License No. C-3197

Respondent.

/

FINAL ORDER

THIS MATTER came before the Pinellas County Construction Licensing Board pursuant to Section 120.57(1), Florida Statutes, on March 19, 1996, in Pinellas Park, Florida for consideration of the Recommended Order (a copy of which is attached hereto and incorporated herein by reference) issued by the hearing officer in the above styled case. The petitioner was represented by W.J. Owens. The Respondent appeared pro se.

Upon consideration of the hearing officer's Recommended Order and after a review of the complete record in this matter, the Board makes the following findings:

1. The hearing officer's findings of fact are hereby approved and adopted.

   
   

2. There is competent, substantial evidence to support the hearing officer's findings of fact.

CONCLUSIONS OF LAW

1. The Board has jurisdiction of this matter pursuant to the provisions of Section 120.57(1), Florida Statutes, and Chapter 75-489, Laws of Florida, as amended.

   
   

2. The hearing officer's conclusions of law, are hereby approved and adopted in toto.

   
   

3. Respondent is guilty of violating Chapter 89-504, Section 24 (2)(d) and (n), Laws of Florida.

   
   

4. No exceptions were filed by Respondent.

   
   

5. There is competent substantial evidence to support the Board's findings and conclusions.

WHEREFORE, IT IS HEREBY ORDERED AND ADJUDGED:

Respondent is assessed an administrative fine of $144.00. Counts III and IV are dismissed.

Pursuant to Section 120.68, Florida Statutes, the Parties are hereby notified that they may appeal this Order by filing one copy of a Notice of Appeal with the Pinellas County Construction Licensing Board, 11701 Belcher Road, Suite 102, Largo, Florida 34643-5116, and by filing the filing fee and one copy of the Notice of Appeal with the District Court of Appeals within thirty (30) days of the effective date of this Order.

This order shall become effective upon filing with the Pinellas County Construction Licensing Board.

DONE AND ORDERED this 19th day of March, 1996.

Paul J. Skipper, Chairman Pinellas County Construction

Licensing Board

Docket for Case No: 95-003515

Orders for Case No: 95-003515