STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

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

)

Petitioner, )

)

vs. ) CASE NO. 82-094

)

DANNY E. FOX, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, this matter came on for formal hearing before Marvin E. Chavis, duly designated Hearing Officer of the Division of Administrative Hearings, on January 12, 1983, in Punta Gorda, Florida.

APPEARANCES

For Petitioner: Xavier J. Fernandez, Esquire

Nuckolls, Johnson & Fernandez Post Office Box 729

Fort Myers, Florida 33902

For Respondent: Mrs. Danny E. Fox

Route 1, Box 54

Pleasant Shade, Tennessee 37145 ISSUES AND BACKGROUND

This matter involves the issue of whether the Respondent's license as a registered plumbing contractor should be suspended, revoked, or otherwise disciplined on the grounds of having had his competency card to practice plumbing in Collier County revoked by the Collier County Contractor's Licensing Board. After having been noticed for hearing and continued on three prior occasions, the above-matter was noticed for hearing on January 12, 1983. At that hearing, the Respondent, Danny E. Fox, failed to appear. The only person appearing on behalf of the Respondent was his wife, Mrs. Fox. Mrs. Fox sought to have the matter continued and to have an opportunity for her husband to seek relief from the Collier County Contracting Board and to present further evidence upon obtaining such relief. Based upon the stipulation and agreement of counsel for the Petitioner, the Petitioner was allowed to present its evidence and go forward with its case. The hearing was then recessed for a period of 60 days within which to give the Respondent an opportunity to appear before the Collier County Contracting Board and to present evidence in a subsequent hearing. The undersigned Hearing Officer was notified subsequent to that time that the Respondent was to appear before the Collier County Construction Licensing Board on March 15, 1983. On May 13, 1983, after a failure on the part of the

Respondent or the Petitioner to provide further information and to request a further hearing in this matter, an order to show cause was served upon the Petitioner and the Respondent. That order to show cause ordered the Respondent to file with the undersigned Hearing Officer within ten (10) days of the date of that order written grounds as to why the Hearing Officer should not enter a Recommended Order upon the evidence presented by the Petitioner. It also gave the Respondent an opportunity to request a reconvening of the hearing in order to present evidence. Subsequent to that order, the Respondent filed a letter, which has been marked as Respondent's Exhibit 1, asking that his license not be revoked but not seeking the opportunity to present further evidence. Respondent is, therefore, considered to have waived his right to present evidence to the Hearing Officer and a Recommended Order is entered upon the evidence presented at the January 12, 1983, hearing on behalf of the Petitioner. At that hearing, the Petitioner offered and had admitted a certified document containing the information relating to the license of Respondent and a certified copy of the action taken by the Collier County Contractor's Licensing Board. Neither party submitted proposed findings of fact and conclusions of law for consideration by the Hearing Officer.

FINDINGS OF FACT

1. At all times material to this action, Respondent was and presently is a registered plumbing contractor having been issued License No. RF0038438.

   
   

2. On August 18, 1981, the Collier County Contractor's Licensing Board revoked Respondent's competency card to practice plumbing in Collier County. The revocation was based upon Respondent's violation of Sections 4.1.10 and 4.1.17, Collier County Ordinance No. 78-02.

   
   

3. Respondent failed to appear at the public hearing held before the Collier County Contractor's Licensing Board on August 18, 1981.

   
   

   CONCLUSIONS OF LAW

   
   

4. The Division of Administrative Hearings has jurisdiction over the parties and subject matter of this action.

   
   

5. Florida Statute 489.129(1) empowers the Florida Construction Industry Licensing Board to suspend, revoke, or otherwise discipline a contractor who is found to have committed any of the acts listed in Section 489.129.

   
   

6. Respondent is charged with a violation of Section 489.129(1)(i) which provides as a ground for discipline:

   
   

   1. Disciplinary action by any municipality or county, which action shall be reviewed by the state board before the state board takes any disciplinary action of its own.

      
      

7. Florida Statute 489.117 (1977) provides in relevant part:

   
   

   1. Any person engaged in the business of contracting in the state shall be registered in the proper classification, unless he is certified. Any person entering the business of contracting shall be registered prior to engaging in contracting, unless he is certi-

      fied. To be initially registered, the applicant shall submit the required fee and file evidence, in a form provided by the department, of holding a current local occupational license issued by any munici- pality, county, or development district for the type of work for which registration is desired and evidence of successful compliance with the local examination and licensing requirements, if any, in the area for which registration is desired. No examination shall be required for registration.

      
      

   2. Registration allows the registrant to engage in contracting only in the counties, municipalities, or development districts

   where he has complied with all local licensing requirements and only for the type of work covered by the registration.

   
   

8. Under the above statutory provision, it is clear that a registered contractor, in order to qualify for registration, must comply with all local licensing requirements in the county or municipality where he seeks to engage in contracting. In the instant case, the Respondent's certificate of competency was revoked by the Collier County Contractor's Licensing Board. As a result of this action, Respondent has violated Florida Statute 489.129(1)(i)(1979).

   
   

9. No evidence was offered which established or proved a violation of Florida Statute 489.129(1)(d)(1979) as alleged in the Administrative Complaint.

   
   

10. No evidence in extenuation and mitigation was presented by Respondent.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED:

That Respondent's license as a registered plumbing contractor be revoked. DONE and ENTERED this 9th day of August, 1983, in Tallahassee, Florida.

MARVIN E. CHAVIS

Hearing Officer

Division of Administrative Hearings 2009 Apalachee Parkway

Tallahassee, Florida 32301

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 4th day of August, 1983.

COPIES FURNISHED:

Xavier J. Fernandez, Esquire Nuckolls, Johnson & Fernandez Post Office Box 729

Fort Myers, Florida 33902

Danny E. Fox Route 1, Box 54

Pleasant Shade, TN 37145

Mr. James Linnan Executive Director

Construction Industry Licensing Board Post Office Box 2

Jacksonville, Florida 32202

Mr. Fred Roche Secretary

Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32301

Docket for Case No: 82-000094

Orders for Case No: 82-000094