STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF PROFESSIONAL ) REGULATION, CONSTRUCTION INDUSTRY ) LICENSING BOARD, )

)

Petitioner, )

)

vs. ) CASE NO. 81-2193

)

CHRISTIAN B. SMITH, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, WILLIAM B. THOMAS, held a formal hearing in this case on April 29, 1982, in Quincy, Florida. The parties elected to exercise their right to submit proposed findings of fact and conclusions of law, and they were allowed ten days after the filing of the transcript to do so. The transcript was received on May 6, 1982, and the proposed findings and conclusions were timely submitted, closing the record of this proceeding. These have been considered. Where not adopted, they were found to be contrary to the weight of the credible evidence.

APPEARANCES

For Petitioner: Michael Egan, Esquire

Post Office Box 1386 Tallahassee, Florida 32302

For Respondent: Robert D. Mendelson, Esquire

300 Lewis State Bank Building Tallahassee, Florida 32301

By Administrative Complaint issued on August 12, 1981, the Petitioner seeks to suspend or revoke the Respondent's license as a certified air conditioning contractor, or otherwise discipline him, for alleged violation of Section 489.129(1)(d), Florida Statutes. Specifically, the Complaint charges the Respondent with the willful or deliberate disregard and violation of the Gadsden County building code, by failing to pull two building permits prior to the commencement of construction.

By stipulation, the Respondent admitted the factual allegations of the Administrative Complaint, except those alleging that his violations of the building code were willful or deliberate. Thus, the sole issue remaining for determination is whether the Respondents activities constitute a willful or deliberate violation of the Gadsden County building code.

The Petitioner presented the chief building inspector for Gadsden County in support of the Complaint, and the Respondent testified in his own behalf. Based upon the testimony and the observed candor and demeanor of the witnesses, the following are found as facts.

FINDINGS OF FACT

1. The Respondent is a certified air conditioning contractor, holding license number CAC 017508.

   
   

2. The Respondent has been in the central air conditioning and heating business in Gadsden County for approximately two years. Prior to entering this business on his own, the Respondent was employed by Central Heating and Consultants in Leon County as a salesman in charge of the duct department.

   
   

3. While working for Central Heating and Consultants in Leon County, the Respondent was not involved in the permitting process. In Leon County, a separate mechanical permit is not required, while in Gadsden County a separate mechanical permit is required.

   
   

4. The Respondent's first installation in Gadsden County was at the residence of Larry Geyer. When this job began, the Respondent was in partnership with two individuals from Leon County, all of whom were operating as Central Heating Consultants of Gadsden County. Upon inspecting the plumbing and electrical work, the building inspector noticed that certain mechanical work had been performed but that a permit had not been obtained. Within a day or two from the date that the inspector notified the Respondent of this situation, the Respondent pulled the permit. This permit had not been pulled earlier because when the Respondent first visited the Geyer project, he noticed a permit card on the premises and assumed that there was no need for any additional permit.

   
   

5. On February 6, 1981, the Respondent pulled the permit for the Don Vickers job. This permit was obtained by the Respondent shortly after the County inspector and a State investigator visited the Respondent and informed him that the permit had not been pulled. The County inspector testified that he had contacted the Respondent concerning the need to pull a permit on the Vickers job prior to this visit. The Respondent testified that the first time he learned that he had failed to pull the permit was at the time of the visit. In any event, the Respondent pulled the permit for the Vickers job on or about the same day as the visit by the County inspector and the State investigator.

   
   

6. The Respondent did not pull the permit on the Vickers job earlier, due to a misunderstanding concerning the relationship between Vickers and Luke Blackburn Builders. On Luke Blackburn jobs, Mr. Blackburn pulled all the permits. Since Mr. Vickers and Mr. Blackburn worked closely on various projects, the Respondent assumed that Mr. Vickers had pulled this permit as Mr. Blackburn had always done.

   
   

7. At the time when the County inspector and the State investigator visited the Respondent at the Vickers project, the Respondent realized that he was operating under a misconception of the permitting procedure. To avoid future problems, the Respondent met with the county and the state officials to discuss in detail the procedure for pulling permits. It is one of the functions of the County Building Inspector's Office to assist contractors with procedural- type matters, including the permit process.

8. When the Respondent began operating in Gadsden County, he would visit the County Inspectors Office on a regular basis. The Respondent also engaged in an advertising campaign in order to become better known in the Gadsden County area.

   
   

   CONCLUSIONS OF LAW

   
   

9. Section 489.129(1)(d), Florida Statutes, provides that the Construction Industry Licensing Board may revoke or suspend the certificate or registration of a contractor, or impose an administrative fine not to exceed $1,000.00 or place the contractor on probation, or reprimand or censor a contractor, if he is found guilty of the willful or deliberate disregard and violation of the applicable building codes. Accordingly, while the Respondent admitted that he did not obtain permits until after construction had begun on the Geyer and Vickers projects, the Petitioner must nonetheless prove that the Respondent's acts were "willful or deliberate."

   
   

10. Webster's Dictionary sets forth the definitions of "willful" and "deliberate" as follows:

    
    

    Willful: Said or done deliberately or in- tentionally; following one's own will un- reasoningly; obstinate; stubborn.

    
    

    Deliberate: Carefully thought out and formed, or done on purpose; premeditated.

    
    

11. While the terms "willful" and "deliberate" are usually associated with criminal violations, the Florida Supreme Court has had occasion to define "willfully" in a civil action. In Jones v. Hammock, 179 So. 674 (Fla. 1937), the court defined the term "willfully":

    
    

    A thing is willfully done when it proceeds from a conscious motion of the will, intend- ing the result which actually comes to pass. It must be designed or intentional, and may be malicious, though not necessarily so. 'Willful' is sometimes used in the sense of intentional, as distinguished from 'acciden- tal,' and, when used in a statute affixing a punishment to acts done willfully, it may be restricted to such acts as are done with an unlawful intent.

    
    

12. The United States District Court for the Northern District of Florida, also considered the term "willfully" under the Fair Labor Standards Act in Hodgson v. Hyatt, 318 F.Supp. 390 (USDC ND Fla. 1970), where the court stated:

    
    

    It therefore applies to violations which are intentional, knowing or voluntary as distinguished from accidental and it is used to characterize conduct marked by careless disregard whether or not one has the right so to act.

13. Thus, it appears that the terms "willful" or "deliberate" mean something more than mere negligence. While the Respondent admitted that he did not pull permits for the Geyer and Vickers projects until after construction had commenced, nevertheless, it appears that he was not attempting to evade the law. The uncontroverted testimony is that the Geyer project was the Respondent's first job in which he was involved in pulling a permit. He had never pulled permits before, and his activities with Central Heating and Consultants in Leon County were limited to selling air conditioning ducts.

    
    

14. On the Respondent's first visit to the Geyer project, he noticed a permit on the job and assumed that no further permits were needed. To support this belief, Respondent testified that in Leon County a separate mechanical permit is not required while the opposite is true in Gadsden County. The Respondent immediately pulled a permit upon notification from the County inspector that one was required.

    
    

15. The Respondent also admitted that he failed to pull a permit for the Don Vickers project because he erroneously assumed that Mr. Vickers had pulled all the necessary permits as Mr. Blackburn usually did. Again, once the Respondent was notified that a permit had not been pulled, he complied almost immediately.

    
    

16. While the Respondent's actions may amount to negligence, such actions do not appear to have been committed willfully or deliberately. He was not attempting to evade the law or to make himself inaccessible to building inspections. He had engaged in advertising, and was making numerous visits to the County Inspector's Office. Once the Respondent realized that he did not have the permitting process under control he sought assistance to more fully understand the permitting procedure. Since the Respondent took such steps to educate himself, he has had no further permitting problems.

    
    

17. Thus, while the Respondent's actions were the result of possible negligence or mistake, such actions were not done deliberately or willfully with an intent to evade Chapter 489 of the Florida Statutes, or the Gadsden County building code.

RECOMMENDATION

Based upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Administrative Complaint against Christian B. Smith be

dismissed.

THIS RECOMMENDED ORDER entered on this 27th day of May, 1982, in Tallahassee, Florida.

WILLIAM B. THOMAS, Hearing Officer Division of Administrative Hearings The Oakland Building

2009 Apalachee Parkway

Tallahassee, Florida 32301

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 27th day of May, 1982.

COPIES FURNISHED:

Michael Egan, Esquire Post Office Box 1386

Tallahassee, Florida 32302

Robert D. Mendelson, Esquire

300 Lewis State Bank Building Tallahassee, Florida 32301

Mr. James Linnan, Executive Director Construction Industry Licensing Board Post Office Box 2

Jacksonville, Florida 32202

Samuel R. Shorstein, Secretary Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32301

Docket for Case No: 81-002193

Orders for Case No: 81-002193