Judges: D. R. ALEXANDER
Agency: Department of Business and Professional Regulation
Latest Update: Mar. 07, 1983
Summary: Licensee failed to subcontract work to licensed person.
82-1047STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
DEPARTMENT OF PROFESSIONAL )
REGULATION, CONSTRUCTION )
INDUSTRY LICENSING BOARD, )
)
Petitioner, )
)
vs. ) CASE NO. 82-1047
)
HAROLD D. BIGGS, )
)
Respondent. )
)
RECOMMENDED ORDER
Pursuant to notice, a formal hearing was held in the above case before the Division of Administrative Hearings by its duly designated Hearing Officer, DONALD R. ALEXANDER, on October 1, 1982 in Marianna, Florida.
APPEARANCES
For Petitioner: Jane E. Heerema, Esquire
Post Office Box 1386 Tallahassee, Florida 32302
For Respondent: John D. Simpson, Esquire
120 South Jefferson Street Marianna, Florida 32446
BACKGROUND
By administrative complaint issued on March 4, 1982, Petitioner, Department of Professional Regulation, Construction Industry Licensing Board, has charged that Respondent, Harold D. Biggs, has violated Chapter 489, Florida Statutes, for which disciplinary action against his registered building contractor's license should be taken. In summary form, it is alleged that on or about February 15, 1978, Respondent contracted to do construction work, including plumbing and electrical work, on a residence in Marianna, Florida; that Respondent performed the electrical and plumbing work without hiring a subcontractor; that Respondent did not have a electrical or plumbing license with the City of Marianna as required by its local building code; and that Respondent was accordingly guilty of violating Subsection 468.112(2)(g), Florida Statutes (1977), now Subsection 489.129(1)(j), Florida Statutes, and Subsection 468.102(1), Florida Statutes (1977), now incorporated in Subsections 489.113(2)&(3) and 489.117(1)&(2), Florida Statutes, in that he did not subcontract the electrical and plumbing work for which a local examination for certification of competency was required, and was accordingly guilty of violating Subsection 468.112(2)(a), Florida Statutes (1977), now Subsection 489.129(1)(d), Florida Statutes, in that he willfully or deliberately disregarded the local building codes of the City of Marianna, Florida. 1/
Respondent disputed these charges and requested a formal hearing pursuant to Subsection 120.57(1), Florida Statutes. The matter was forwarded by Petitioner to the Division of Administrative Hearings on April 14, 1982, with a request that a Hearing Officer be assigned to conduct a formal hearing.
By notice of hearing dated May 5, 1982, the final hearing was set for June 18, 1982 in Marianna, Florida. At the request of Petitioner, the final hearing was rescheduled to July 30, 1982 at the same location. By request of the parties it was rescheduled to September 7, 1982, and again to October 1, 1982, in Marianna, Florida.
At the final hearing Petitioner presented the testimony of R. E. Hester, Mitchell Menacof, Earnest E. Poley, Larry Watts, Willie Menchion and David Hatcher and offered Petitioner's Exhibits 1-7; all were received in evidence. Respondent testified on his own behalf and offered Respondent's Exhibit 1 which was received in evidence. Pursuant to the request of Petitioner official recognition of Sections 5-3.1, 5-6 and 5-24 of the Marianna City Code has been taken by the undersigned.
The transcript of hearing was filed on October 13, 1982. Proposed findings of fact and conclusions of law have been filed by the parties on November 10, 1982 and have been considered by the undersigned in the preparation of this order. Findings of fact not included in this order were considered irrelevant to the issues, immaterial to the results reached, or were not supported by competent and substantial evidence.
The issue herein is whether Respondent's registered building contractor's license should be disciplined for the alleged violations set forth in the amended administrative complaint.
Based upon all the evidence, the following findings of fact are determined: FINDINGS OF FACT
At all times relevant hereto, Respondent, Harold D. Biggs, held registered building contractor license number RB0027771 issued by Petitioner, Department of Professional Regulation, Construction Industry Licensing Board. Respondent is currently engaged in the contracting business in Marianna, Florida. He holds no licenses from the State or City of Marianna authorizing him to engage in the business of plumbing and electrical construction.
In 1977, Mitchell Menacof moved to Marianna, Florida, where he purchased a home at 605 Miltonia Avenue. At a later undisclosed date Menacof hired Respondent to level the floor in his home. He also hired Biggs to seal and repair a leaky roof in the kitchen area. Menacof was satisfied with the quality of work on both jobs.
In February, 1978 Menacof again approached Biggs and asked if he would convert a carport into a den, add a bathroom and closet, and build a new garage and driveway. Although no written contract was executed by the parties, Biggs orally agreed to do the work. He furnished Menacof a written statement dated February 15, 1978 itemizing the charges which totaled $8,800.
Menacof inspected Biggs' work on a daily basis and was dissatisfied with various aspects of the job. There appeared to be constant arguments between the two concerning the manner in which the work was performed. Eventually, Menacof removed all of Biggs' equipment from the, job site and
placed it next to the street. The two later met and agreed that Menacof should pay Biggs an additional $2,500 to cover his costs. In all, Biggs received
$7,500 for the work performed on Menacof's house. Despite this payment, Biggs contends he suffered a loss and is still owed money for the job.
After their relationship was ended, Menacof reported Biggs to the Board for failing to obtain a city building permit on the job. For this, Biggs received a $200 fine and a public reprimand.
The evidence is conflicting as to whether Biggs or his employees actually performed electrical work on the Menacof job. However, it is found that the electrical work was done by a licensed electrician, Charles Morse, who was paid $62.50 to move a panel box on the premises. The piping work for the bathroom was not performed by a licensed plumbing contractor. Although Biggs was under the impression that one of his employees either held an appropriate license or was obtaining one, there was no evidence to show that a licensed employee actually did the work.
Respondent has been a licensed building contractor since 1976 in the Jackson County area. Other than the disciplinary action for failing to get a permit on the Menacof job, there is no evidence of any other violations.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction of the subject matter and the parties thereto pursuant to the provisions of Subsection 120.57(1), Florida Statutes.
It is charged that Biggs, while performing the Menacof job in the spring of 1978, "...did plumbing and electrical work without hiring a subcontractor...", and therefore (a) failed in a material respect to comply with a part of Chapter 489, to wit, he failed to subcontract the plumbing and electrical work to a licensed contractor, and "...willfully or deliberately disregarded the local building codes of Marianna, Florida..."
The evidence presented by the parties in this proceeding is contradictory, with each side giving essentially a different version of what transpired. Moreover, the incident which gave rise to this action occurred almost five years ago, and presumably this passage of time has contributed to the conflicting details.
The evidence does not support a conclusion that Biggs or his employers performed the electrical work on the project. However, the evidence establishes that the plumbing work was done by an unlicensed employee of Biggs, although Biggs believed the individual was either licensed or was attempting to secure one. Accordingly, it is concluded that a violation of Subsections 489.113(2) and (3), 489.117(1) and (2) and 489.129(1)(g) has occurred, in that Biggs did not subcontract the plumbing work for which a local examination for certification is required, and which said competency Biggs did not hold, and failed in a material respect to comply with a provision of Chapter 489. 2/
The allegation that Biggs "willfully or deliberately disregarded the local building codes" was not proven, and it is concluded that no violation of Subsection 489.129(1)(d) has occurred. Cf. Department of Professional Regulation v. Christian B. Smith, DOAH Case No. 81-2193, Final Order dated 8/25/82.
In determining an appropriate penalty, it is noted that Biggs has already been subjected to a disciplinary action arising out of the same job, and received a $200 fine and reprimand. It is also noted that Biggs did not violate the law in an intentional manner but believed that his employee was qualified to do the plumbing work. Under these circumstances a public reprimand and a $500 civil penalty are appropriate.
RECOMMENDATION
Based on the foregoing finding of fact and conclusions of law, it is RECOMMENDED that Respondent, Harold D. Biggs, be found guilty of violating
Subsections 409.129(1)(j), 489.113 (2)and (3), and 489.117(1) and (2), Florida Statutes, and be given a public reprimand and pay a $500 fine; all other charges should be DISMISSED.
DONE and ENTERED this 23rd day of November, 1982, in Tallahassee, Florida.
DONALD R. ALEXANDER
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 23rd day of November, 1982.
ENDNOTES
1/ The above allegations are those reflected in the administrative complaint as amended on June 9 and September 27, 1982.
2/ Testimony that Biggs did unauthorized work on two other jobs has been disregarded since Respondent was not apprised of these violations in the administrative complaint nor afforded timely notice that such matters would be raised. Similarly, testimony by Menacof that certain aspects of the work were unsatisfactory has been deemed irrelevant since the complaint does not contend the work was performed in an incompetent fashion.
COPIES FURNISHED:
Jane E. Heerema, Esquire
P. O. Box 1336
Tallahassee, Florida 32302
John D. Simpson, Esquire
120 South Jefferson Street Marianna, Florida 32446
Samuel R. Shorstein, Secretary Department of Professional
Regulation
Old Courthouse Square Building
130 North Monroe Street Tallahassee, Florida 32301
Docket for Case No: 82-001047
Orders for Case No: 82-001047
