Respondent. )
Pursuant to notice, an administrative hearing was held before Diane D. Tremor, Hearing Officer with the Division of Administrative Hearings, on November 19, 1982, in Tallahassee, Florida. The issue for determination at the hearing was whether disciplinary action should be taken against the respondent's license to practice general contracting for violating Section 489.129(1)(i) , Florida Statutes (1979).
For Petitioner: Stephanie A. Daniel
For Respondent: Bruce P. Anderson
John A. Barley & Associates, P.A. Post Office Box 10166 Tallahassee, Florida 32303
By an Administrative Complaint filed on September 17, 1981, petitioner seeks to revoke, suspend or take other disciplinary action against respondent's license to practice general contracting on the grounds that he is guilty of violating Section 489.129(1)(i), Florida Statutes (1979), in that he was the subject of disciplinary action by Leon County. Specifically, it is alleged that on or about November 29, 1979, respondent's license was revoked by the Leon County Contractors Licensing and Examination Board based upon complaints of abandonment and noncompliance with the Leon County Building Code. The Complaint was later amended to reflect that on April 24, 1980, the Leon County Licensing and Examination Board, upon rehearing, elected to suspend respondent's license for a period of nine months, said suspension to be retroactive and effective on November 29, 1979.
In support of the charges against the respondent, the petitioner presented the testimony of James D. Courtney, the Executive Secretary. for the Leon County Construction Licensing and Examination Board and the supervisor of the County Inspection Department, and Earl Black, the Assistant County Attorney for Leon County. Petitioner's Exhibits 1 through 6 and 3 through 20 were received into evidence. The respondent testified in his own behalf and also presented the testimony of Norman Leach, the Chairman of the Building Committee for the Lake Jackson United Methodist Church. Respondent's Exhibits A through R were received into evidence.
Subsequent to the hearing, the parties filed proposed recommended orders which have been fully considered. To the extent that the parties' proposed findings of fact are not incorporated in this Recommended Order, they are rejected as being either not supported by competent substantial evidence adduced at the hearing, irrelevant or immaterial to the issues in dispute or as constituting conclusions of law as opposed to findings of fact. Also, after the filing of proposed recommended orders, respondent filed a "posthearing request to take official recognition of facts," attaching documents to the request. The undersigned has considered this request, along with petitioner's motion in opposition to the request and respondent's reply, and hereby denies the request to take official recognition of facts.
Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant facts are found:
At all times pertinent to this proceeding, respondent H. James Lentz was a certified general contractor licensed by the State of Florida.
At a special Board meeting of the Leon County Licensing and Examination Board (Leon County Board) held on July 26, 1979, the County Building Inspection Department requested an opinion as to whether to bring respondent Lentz before the Leon County Board on charges of abandonment and violations of the Building Code. The Leon County Board voted to have its Executive Secretary, James Courtney, advise respondent to appear before it and advise him that his County license was susceptible to revocation.
By a registered letter dated August 14, 1979, Mr. Courtney advised respondent that a complaint had been filed against him, requested him to appear before the Leon County Board on August 30, 1979 and advised him that he had the right to be represented by counsel at the hearing.
By letter dated August 23, 1979, attorney John A. Barley informed Mr. Courtney that he would be representing respondent and requested that the Board reschedule the matter for hearing during its next meeting after the August 30th meeting. Mr. Courtney approved Mr. Barley's rescheduling request by letter dated August 27, 1979.
Respondent and Mr. Barley appeared before the Leon County Board at its September 27, 1979 meeting. After Mr. Courtney orally informed the Board as to the nature of the complaints against the respondent, counsel for the respondent requested that the complaint be issued in writing, listing dates, locations and violations. The Board agreed to issue a formal written complaint and advised respondent and his counsel that the Board would expect a response to the complaint at its October 25, 1979 meeting.
By letter, with attachments, dated November 1, 1979, the Assistant County Attorney, O. Earl Black, Jr., advised respondent through his attorney that the complaints concerned three specific projects, explained the specific code violations on each project and also notified respondent that he had either removed himself or was removed by the owners from each of the three projects without notifying the Building Inspection Department that he was no longer associated with the project. Respondent, through his counsel, was further advised that he would be expected to respond to the complaints and that the next meeting of the Leon County Board would be November 29, 1979.
Neither the respondent nor his counsel, Mr. Barley, appeared at the November 29, 1979 Leon County Board meeting. The Board discussed at length the complaint of abandonment and noncompliance with the Building Code, and voted to revoke respondent's Leon County Contractor's license. By certified letter dated December 5, 1979, respondent and his attorney were notified that the Leon County Board, at its meeting of November 29, 1979, revoked respondent's certified general contractor's license for use in Leon County for "noncompliance of code and abandonment."
Mr. Courtney notified his Plans Examiner, Permit Clerk and Supervisor of Inspections by interoffice memorandum dated December 6, 1979, that respondent's license had been revoked for use in Leon County. The purpose of this notice was to notify them that they were not to process or issue any permits to respondent or make any inspections on any other premises after that date.
By letter dated December 10, 1979, Mr. Barley acknowledged receipt of the December 5, 1979, letter notifying him of the Board action taken at the November 29th meeting, and requested a copy of the Board minutes from that meeting. These minutes were sent to him by letter dated December 27, 1979.
On January 11, 1980, Mr. Barley requested that the Leon County Board rehear the complaints against respondent and reconsider its decision to revoke respondent's license. The Board agreed to rehear the matter at its February, 1980 meeting. Apparently, the Board requested additional information at its February meeting and the matter was again rescheduled for the April, 1980 meeting.
On April 24, 1980, respondent and his attorney, Mr. Barley, appeared before the Leon County Board for a rehearing. Respondent produced evidence to the Board that certain violations had been corrected, that one of the three projects was in litigation and that termination and settlement agreements had been entered into on the other projects. Thereafter, the Leon County Board reduced the prior revocation of respondent's license to a suspension for a period of nine months, said suspension to be retroactive to November 29, 1979, and to end on August 29, 1980.
By certified letter dated April 28, 1980, respondent was advised of the Leon County Board's action taken at its April 24th meeting rescinding its prior action and suspending his license for nine months. Attorney Barley sent a letter dated April 28, 1980, to Assistant County Attorney Black confirming his understanding of the action taken by the Board on April 24, 1980.
No further action was taken by respondent concerning the action of the Leon County Board until June of 1982. At that time, respondent sent a letter dated June 24, 1982, requesting the Board to rehear its action of November 29,
1979, as revised on April 24, 1980. Respondent withdrew his request for rehearing by letter dated September 14, 1982.
CONCLUSIONS OF LAW
The Construction Industry Licensing Board is authorized to take disciplinary action against a contractor who has been the subject of disciplinary action by a municipality or county. Section 489.129(1)(i), Florida Statutes. The evidence presented by the petitioner clearly demonstrates that disciplinary action against the respondent was taken by the Leon County Contractors Licensing and Examination Board on November 29, 1979, in the form of a revocation of his license to practice in Leon County, as revised on April 24, 1980, to a retroactive nine-month suspension.
By motion to dismiss and affirmative defenses, the respondent has contended that. the Leon County action cannot form the basis for disciplinary action under Section 489.129(1)(4), Florida Statutes, because the Leon County Board did not procedurally comply with certain Leon County ordinances, because the action of the Leon County Board is not final and is still subject to appeal and because the action of the Leon County Board was not based upon competent substantial evidence. The undersigned has carefully considered these arguments of the respondent and finds them to be without merit. This is not the proper forum in which to challenge the substantive propriety of the action taken by the Leon County Board. No evidence has been presented that the local Board action is presently the subject of a pending appeal by the respondent. The procedural defects alleged were, at best, de minimus in nature inasmuch as respondent was represented by counsel throughout the Leon County Board proceedings and was timely noticed and notified in writing of all actions taken by that Board. The Administrative Complaint in this case does not charge the respondent with building code violations, abandonment or other specific violations of local laws. Instead, it charges that respondent is guilty of having had disciplinary action taken against him by a local board. Petitioner has proven this charge by competent substantial evidence adduced at the hearing in this cause, and is thus empowered to take disciplinary action against the respondent pursuant to Section 489.129(1), Florida Statutes.
