STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

PINELLAS COUNTY CONSTRUCTION ) LICENSING BOARD, )

)

Petitioner, )

)

vs. ) Case No. 99-2241

)

GABRIEL VARRO, )

)

Respondent. )

)

RECOMMENDED ORDER

A hearing was held in this case in Largo, Florida, on July 7 and 22, 1999, before Arnold H. Pollock, an Administrative Law Judge with the Division of Administrative Hearings.

APPEARANCES

For Petitioner: William J. Owens, Executive Director

Pinellas County Construction Licensing Board

11701 Belcher Road, Suite 102

Largo, Florida 33773-5116

For Respondent: Gabriel Varro, was not present and

was not represented on July 7, but was present on July 22, 1999.

STATEMENT OF THE ISSUE

The issue for consideration in this case is whether Respondent's certification as an electrical contractor in Pinellas County should be disciplined because of the matters alleged in the Administrative Complaint filed herein.

PRELIMINARY MATTERS

By Administrative Complaint dated April 6, 1999, the Pinellas County Construction Licensing Board seeks to discipline

Respondent's certification as an electrical contractor in Pinellas County because, it is alleged, in December 1998 he failed to take corrective action on red tags (deficiencies) identified by the County Building Department, and thereby willfully disregarded provisions of the National Electrical Code; proceeded on a job without first obtaining required building permits; and was guilty of gross negligence, incompetence or misconduct in the practice of contracting; all in violation of Section 24(2), Chapter 89-504, Laws of Florida. Respondent requested formal hearing, and this hearing ensued.

By Notice of Hearing dated June 4, 1999, and sent to Respondent by U.S. mail, Respondent was notified of the time, date, and place of the hearing. The Notice was not returned undelivered. However, Respondent did not appear at the scheduled site of the hearing at the time noticed. Commencement of the hearing was delayed for 30 minutes to allow Respondent additional time to appear, but he failed to appear and was not represented by either counsel or qualified representative. The hearing proceeded in his absence.

Subsequent to the completion of the first session of the hearing, Respondent contacted the assistant to the Administrative Law Judge contending he had not received the Notice of Hearing, and requested an opportunity to be heard. At the direction of the undersigned, Respondent was instructed to contact Petitioner regarding re-opening the hearing, and if Petitioner did not

object, the record would be re-opened to allow Respondent to be heard. Petitioner did not object.

On July 22, 1999, the hearing was reconvened and this time Respondent was present. At the request of the undersigned, Petitioner again called Mr. Sasso to reiterate the basics of his earlier testimony and introduced Petitioner's Exhibits 1-4.

Respondent was offered the opportunity to cross examine Mr. Sasso and to present evidence in his own behalf. Respondent did not present any evidence other than his own account of the circumstances which led to the filing of the Administrative Account. No transcript of the proceedings was furnished. After the hearing, Petitioner's representative submitted matters which dealt with the question of suggested penalty.

FINDINGS OF FACT

1. At all times pertinent to the issues herein, the Petitioner, Pinellas County Construction Licensing Board (Board) was the county agency responsible for the certification of members of the construction trade and the regulation of that trade in Pinellas County, Florida. Respondent, Gabriel Varro, was certified as an electrical contractor by the Board and held such certification at all times pertinent hereto.

2. On June 18, 1998, Nicholas Sasso, a building inspector with Pinellas County, visited a construction site at 24698 U.S. Highway 19 in Clearwater, Florida, where Respondent was engaged in electrical work. Mr. Sasso was supposed to conduct an inspection of electrical work done by the Respondent at that site

   but when he arrived at the construction site, at 11:45 a.m., was unable to gain entry to the site. At that time, Mr. Sasso called Respondent by telephone and left a message for Respondent to call back to reschedule the inspection.

3. Respondent did not call in for re-inspection until October 23, 1998, over four months later. In response, however, Mr. Sasso again went to the site for an inspection on that day, where he found at least five violations of the building code for which he issued red tags (requirements for correction). At that point, Respondent had 15 working days to take corrective action, pay the red tags, and call for re-inspection. Mr. Sasso also called Respondent and left a message on the answering machine, but Respondent did not call back. On December 8, 1998, the Building Department's computer produced a notice of Respondent's failure to take sufficient corrective action or pay the red tags.

   Mr. Sasso returned to the site on November 16, 1998, for a follow-up and found that the Respondent had failed to take the required corrective action. Mr. Sasso returned to the site on December 8, 1998, and found the violations had still not been corrected.

4. On December 30, 1998, the computer again indicated Respondent's failure to correct or pay the red tags, so Mr. Sasso went to the site, saw the deficiencies had not been corrected, and issued to Respondent, a Notice of Violation for failure to take corrective action and to pay red tags, and for electrical violations of the National Electrical Code and/or the standard

   building code which he had observed on several prior official visits to the construction site. Respondent was advised on the Notice of Violation that failure to correct the deficiencies within 15 working days of the citation would result in a court citation.

5. Respondent called Mr. Sasso that same day, upon receipt of the Notice of Violation, and indicated he would comply with the requirements of the code, but he had not done so when

   Mr. Sasso returned to the site on February 4, 1999, to conduct a follow-up inspection, appropriate action has not been taken.

   Respondent claims he paid the red tags even though he did not cause the defects; and requested the Building Department to take his name off the permit.

6. Respondent explained the mix-up by claiming the owner of the property had taken out the permit himself and put his, Respondent's, name on it as contractor because Respondent had agreed to do part of the project to correct some work done improperly by a tenant of the park which had resulted in a violation being issued to the park owner. The majority of the deficiencies discovered, Respondent claims, were located inside a structure on the property to which he never got access.

7. Respondent also contends he limited his work to correction of an improper connection from the meter to the riser. He claims he advised the property owner that the only way he, Respondent, would call for an inspection would be if he were provided access to the structure so he could let in the

   inspector. It appears that because of a subsequent determination that the entire project violated the zoning laws, the job was cancelled by the owner.

8. On February 17, 1998, Mr. Sasso also observed electrical work being carried on at an RV park in Pinellas County. Because Mr. Sasso could not recall any permit having been pulled for electrical work at that site, he stopped to see what was going on and identified himself to the workman on the job. The worker identified himself as Respondent and gave Mr. Sasso his card. Respondent advised Mr. Sasso of what he was doing, and when

   Mr. Sasso advised Respondent that he could not legally do the work without first obtaining a permit, Respondent indicated he was going to get it. Mr. Sasso noted that a trench had been dug near a power line, creating a potentially dangerous situation, and that five 50-watt electrical outlets had been installed on pedestals outside the front of the clubhouse. This was confirmed by the proposal submitted to the client by Respondent on September 2, 1998, and accepted by the client on December 4, 1998. The proposal called for the electrical permit to be included in the total contract price of $7,000.

9. Respondent admits to giving the owner of the property a proposal for electrical work to be done, but claims, as the proposal form indicates, the owner was to dig the trench. The owner had the trench dug, as called for, and also placed the pedestals. The digging and the placing of the pedestals were an integral part of the project which Respondent had agreed to

   perform, and those actions required a permit to be issued prior to starting the work.

10. The required permit was not obtained by Respondent or anyone else, and the work in progress has not been completed.

11. Petitioner has suggested that Respondent be fined

    
    

    $750.00 for the violation alleged in Count One; $300.00 for the violation alleged in Count Two; and $750.00 for the violation alleged in Count Three. Counts One and Three are classified by statute as "major" violations.

    CONCLUSIONS OF LAW

    
    

12. The Division of Administrative Hearings has jurisdiction over the parties and the subject matter in this case. Section 120.57(1), Florida Statutes.

13. In a three-count Administrative complaint, the Pinellas County Construction Licensing Board seeks to discipline Respondent's certification as an electrical contractor alleging that he failed to take required correction action for and pay red tags issued for violations of the county building code; did electrical contracting without first obtaining a construction permit for the job; and was guilty of fraud or deceit, gross negligence, incompetence, or misconduct in contracting, all in violation of Section 24(2)(d), (j), (m), and (n), Chapter 89-504, Laws of Florida, as amended.

14. These provisions have been incorporated in

    
    

    Section 489.129(1)(c), (m), (n), and (o), Florida Statutes, which permits discipline of a license of a contractor who commits

    fraud, deceit, mismanagement, incompetence or gross negligence in the practice of contracting, or who, in any other way, violates the provisions of Chapter 455, Florida Statutes.

15. Petitioner bears the burden to establish Respondent's guilt of the misconduct alleged in the Administrative complaint by clear and convincing evidence. Ferris v. Turlington, 510 So. 2d 292 (Fla. 1987). The evidence presented by the Board is both convincing and clear that on both of the jobs alleged, Respondent violated the terms of the statute.

16. Though Respondent may not have pulled the permit on the job on U.S. Highway 19 in Clearwater, Florida, his name appeared thereon, and he is responsible for correcting violations of the code on any project being done under his license.

17. Again, Respondent did not pull the permit on the second job, at the RV park, but his recognition of the need for a permit is clear from the notation on the proposal that the price included an electrical permit. Though the trench and the actual placing of the pedestals may have been done by someone else, those actions were an integral part of the installation project proposed by the Respondent, and his license covered the whole job. He cannot now be heard to claim a lack of responsibility because he did not personally do a portion of the work on the project.

18. Further, the accomplishment of electrical contracting requires a demonstration of significant skill because of the danger that improper electrical work can pose to the public. The

failure to correct identified violations, as alleged in Count One, is a major violation. However, the failure to pull the permit, as alleged in Count Two, is not, and the combination of all violations in Count Three, including those cited under the other two individual counts, is clearly multifarious. The failure to obtain the permit is clearly minor, and is recognized as such by the Board in its letter of July 8, 1999. The other, the failure to correct violations, is being disciplined under Count One.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Pinellas County Construction Licensing Board, enter a final order assessing an administrative fine of $1,050.00 for the violations alleged in Counts One and Two.

DONE AND ENTERED this 11th day of August, 1999, in Tallahassee, Leon County, Florida.

ARNOLD H. POLLOCK

Administrative Law Judge

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

(850) 488-9675 SUNCOM 278-9675

Fax Filing (850) 921-6947 www.doah.state.fl.us

Filed with the Clerk of the Division of Administrative Hearings this 11th day of August, 1999.

COPIES FURNISHED:

William J. Owens, Executive Director Pinellas County Construction

Licensing Board

11701 Belcher Road, Suite 102

Largo, Florida 33773-5116

Gabriel Varro 1910 Union Street

Clearwater, Florida 33763-2249

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within 15 days from the date of 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: 99-002241

Orders for Case No: 99-002241