STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF PROFESSIONAL )

REGULATION, CONSTRUCTION )

INDUSTRY LICENSING BOARD, )

)

Petitioner, )

)

vs. ) CASE NO. 82-1446

)

SEBASTIAN R. SIRVEN, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, James E. Bradwell, held a public hearing herein on November 3, 1982, in Miami, Florida.

APPEARANCES

For Petitioner: Michael J. Cohen, Esquire

2715 Eeast Oakland Park Boulevard Suite 101

Fort Lauderdale, Florida 33306

For Respondent: Martin Carlin, Esquire

3000 Biscayne Boulevard, Suite 402

Miami, Florida 33137 ISSUE

The issue posed for decision herein is whether or not the Respondent, Sebastian R. Sirven, engaged in conduct, set forth hereinafter in detail, in violation of Section 489.129 (1)(d) and (m), Florida Statutes, to wit: commenced construction without first obtaining building permits; had permits filed with only the signature of the president of the corporation which he qualified; failed to request inspections; continued work in violation of stop orders and committed various code violations in the construction of residences.

In support of the complaint allegations, Petitioner presented the testimony of John J. Delaney, structural code enforcement officer for Dade County; Respondent, Sebastian R. Sirven, and Frank Lubien, building official for the City of Sweetwater. Petitioner's Exhibits 1 through 3 were received into evidence. Respondent testified during examination by Petitioner and presented no further witnesses or documentary evidence. 1/

FINDINGS OF FACT

Based upon my observation of the witnesses and their demeanor while testifying, and the documentary evidence adduced at the hearing, the following relevant facts are found.

1. During times material herein, Respondent, Sebastian R. Sirven, was a certified general contractor and has been issued license numbers CG C003075 and CG CA03075.

   
   

2. At all times material, Respondent was sole qualifier of Dynamic Construction Land Development Corporation.

   
   

3. Dynamic Construction Land Development Corporation (herein Dynamic) was the developer of homes in the Gil-Mar Subdivision in Sweetwater, having been listed as such on all pertinent official records, including all building permits obtained for the aforesaid homes.

   
   

4. Dynamic commenced construction on Lots 19 through 28, Block 3 in Gil- Mar Subdivision without first obtaining building permits there for. In this regard, construction had progressed to various stages in several of the homes, including the pouring of footings in some and the erection of walls and roofs on others before permits were issued. (TR p. 13, Respondent)

   
   

5. It was noted that while application for the building permits for the above-referred homes had been filed by the President of Dynamic, Jorge Gomez, such applications had not been approved by the City of Sweetwater until a date subsequent to the commencement of construction. (See, Exhibit #1, pages 38 and 56.)

   
   

6. Tie beams were poured on residences being constructed on Lots 19, 20,

   21 and 22 of the Gil-Mar Subdivision without first having been inspected pursuant to the code. (Testimony of Delaney and Respondent)

   
   

7. Frank Lubien, building official for Dade County, issued several verbal stop work orders to Dynamic which were briefly obeyed, and then were consistently and repeatedly ignored. On July 28, 1980, written stop orders were issued which again were disregarded by employees and representatives of Dynamic. (Testimony of Lubien and Delaney; Exhibit #1, pages 9, 45-50)

   
   

8. Respondent, while not being directly in control of construction until after Dade County Building Department issued stop work orders for Dynamic at the subject subdivision, frequently visited the construction site subsequent to the issuance of the stop work orders.

   
   

9. As testified to by Inspector Lubien, inspections of the subject construction activities by Dynamic were made and appeared to have been in conformity with acceptable contracting practices. In this regard, evidence reveals that the code violations as to the method of permissible construction alleged in Count VI of the Administrative Complaint filed herein, were timely corrected.

   
   

10. Respondent avers that he was not at fault in the constructing activities here complained of inasmuch as he was not on the scene until it came to his attention that stop orders had been issued for the construction project. In support thereof, Respondent refers to the fact that he was working on another construction project in Volusia County, Florida and was unaware of the alleged

    violations here complained of. Finally, Respondent contends that once he came to the construction site, no further violations occurred by Dynamic.

    
    

    CONCLUSIONS OF LAW

    
    

11. The Division of Administrative Hearings has jurisdiction over the subject matter and the parties to this action. Section 120.57(1), Florida Statutes.

    
    

12. The parties were duly noticed pursuant to the notice provisions of Chapter 120, Florida Statutes.

    
    

13. The authority of the Petitioner is derived from Chapter 489, Florida Statutes.

    
    

14. Respondent a certified general contractor, is subject to the disciplinary guides of Chapter 489, Florida Statutes.

    
    

15. Chapter 489 authorizes and empowers the Petitioner, Construction Industry Licensing Board, to take disciplinary action against a contractor who is engaged in acts or conduct amounting to willful or deliberate disregard and violation of applicable building codes or laws of the state or any municipalities or counties thereof and upon proof and continued evidence that the licensee is guilty of . . . gross negligence, incompetency, or misconduct in the practice of contracting. Section 489.129(1)(d) and (m) , Florida Statutes.

    
    

16. Competent and substantial evidence was offered to establish that the Respondent, by disregarding the repeated and insistent demands made by officials of the Dade County Building Department to desist from further construction until building permits were issued (which ultimately forced the City of Sweetwater to resort to police intervention to enforce the stop work orders issued by the City of Sweetwater) , thereby engaged in willful or deliberate disregard and violation of the applicable building codes in violation of Section 489.129(1)(d)

, Florida Statutes. Further, as qualifier of Dynamic Construction Land Development Corporation, Respondent is responsible for the acts and conduct of that company. 2/

RECOMMENDATION

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

RECOMMENDED:

1. That the Petitioner find Respondent guilty of Counts I through V and be ordered to pay an administrative fine of $100 per count;

   
   

2. That the Respondent's licenses to practice contracting (License Nos. CG C003075 and CG CA03075) be placed on probation for a period of one (1) year.

RECOMMENDED this 15th day of April, 1983, in Tallahassee, Florida.

JAMES E. BRADWELL, 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 15th day of April, 1983.

ENDNOTES

1/ The parties were afforded leave through January 20, 1983, to submit proposed recommended orders. The parties, through counsel, have submitted proposed recommended orders which were considered by me in preparation of this Recommended Order. To the extent that the parties' proposed findings, conclusions, etc. are not incorporated in this Recommended Order, said proposed findings, etc. were deemed irrelevant, immaterial or not otherwise supported by record evidence.

2/ Petitioner concedes that insufficient evidence was offered during the hearing to establish Count VI of the Administrative Complaint respecting the alleged deficiency of building plans. Accordingly, Count VI of the Administrative Complaint is dismissed with prejudice.

COPIES FURNISHED:

Michael J. Cohen, Esquire Suite 101

2715 E. Oakland Park Blvd.

Ft. Lauderdale, Florida 33306

Martin Carlin, Esquire Suite 402

3000 Biscayne Blvd.

Miami, Florida 33137

Mr. James Linnan Executive Director Construction Industry Licensing Board

P. O. Box 2

Jacksonville, Florida 32202

Mr. Fred Roche Secretary

Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32301

Docket for Case No: 82-001446

Orders for Case No: 82-001446