STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

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

)

Petitioner, )

)

vs. ) CASE NO. 82-2393

)

RAYMON E. JOHNSON, )

)

Respondent. )

)

RECOMMENDED ORDER

A hearing was held in the above-captioned matter, after due notice, at Sarasota, Florida, on October 26, 1982, before Thomas C. Oldham, Hearing Officer.

APPEARANCES

For Petitioner: John O. Williams, Esquire

Department of Professional Regulation

547 North Monroe Street, Suite 204 Tallahassee, Florida 32301

For Respondent: Raymon E. Johnson

Post Office Box 13981 Gainesville, Florida 32604

ISSUE PRESENTED

Whether Respondent's license as a certified residential contractor should he suspended or revoked, or the licensee otherwise disciplined, for alleged violations of Chapter 489, Florida Statutes, as set forth in Administrative Complaint, dated July 12, 1982.

This case was consolidated for hearing with Department of Professional Regulation, Electrical Contractors' Licensing Board v. Raymon E. Johnson, DOAH Case No. 82-2394, pursuant to Rule 28-5.106, Florida Administrative Code.

Respondent appeared at the hearing without legal counsel and, after being advised by the Hearing Officer as to his rights to counsel and as to procedures involved in an administrative proceeding, acknowledged that he understood such rights and elected to represent himself.

At the commencement of the hearing, Petitioner moved to amend paragraphs 6, 11, 16 and 19 of the Administrative Complaint to correct a typographical error by changing the statutory provision allegedly violated from Section 489.129(1)(c) to 409.129(1)(d) , Florida Statutes. Respondent did not object to the amendment and it was therefore granted.

This proceeding involves allegations by Petitioner that Respondent constructed several residences in Sarasota, Florida from 1979 to 1981 without subcontracting electrical, mechanical, and plumbing portions of the buildings in violation of pertinent pro- visions of Chapter 489, Florida Statutes, and that he further practiced electrical contracting with an inactive license and in a county where he was not properly registered, also in violation of Chapter 489, F.S.

Petitioner presented the testimony of four witnesses at the hearing, and submitted nine exhibits in evidence. Respondent testified in his own behalf and submitted three exhibits.

FINDINGS OF FACT

1. Respondent Raymon E. Johnson is a certified residential contractor and was so licensed at all times material to the matters alleged in the Administrative Complaint. He was also registered by the Electrical Contractors' Licensing Board as an electrical contractor on April 9, 1979, but such license was not renewed and became delinquent on July 1, 1980. During the valid licensing period, he was registered to perform contracting in Gainesville, Florida and Alachua County. (Stipulation, Petitioner's Exhibit 1)

   
   

2. At an undisclosed date, Respondent, a resident of Gainesville, Florida, purchased a lot at 505 South Shore Drive, Sarasota, Florida. On November 30, 1979, Respondent applied to the Building Construction Department of Sarasota County for an owner's building permit to construct a residence on the lot, and the permit was issued on December 14, 1979. The application and permit form provided that if the applicant did not possess a contractor's license and was constructing a single family residence on his land, such structure could not be offered for sale or sold during the valid existence of the current building permit, and that all contracted services must be with licensed contractors. Respondent completed construction of a residence on the property in the spring of 1980, and sold it on or about May 10, 1980. During construction of the house, Respondent had placed a sign on the property which stated "Custom Homes by Ray Johnson." Respondent constructed the home himself and did not subcontract any of the work. (Testimony of Respondent, Petitioner's Exhibits 2, 4, 8)

   
   

3. In 1980, Respondent purchased a lot at 3625 Beneva Oaks Boulevard, Sarasota, Florida, and obtained an owner's building permit from Sarasota County on August 7, 1980, to construct a residence there. During construction, Respondent had a "For Sale" sign on the premises. Officials of the Sarasota County Building Construction Department informed him that he would have to take the sign down, and he did, until receiving the certificate of occupancy in early 1981 when he again placed the sign on the property. Respondent sold the house on August 8; 1981. The permit issued for construction contained the same prohibition against offering the property for sale or selling it during the existence of the building permit. Respondent constructed the house himself and did not utilize subcontractors. (Testimony of Respondent, Hayek, Taylor, Petitioner's Exhibits 2-3, 6, 9)

   
   

4. On February 2, 1981, Harry W. Mathley obtained an owner's building permit from the Sarasota County Building Construction Department to construct a residence at 3759 Beneva Oaks Boulevard, Sarasota, Florida. Mathley entered into an oral contract with Respondent to perform the framing, electrical and plumbing work on the house. At the time, Respondent told Mathley that he was not licensed in Sarasota County to perform electrical and plumbing work.

   Mathley paid Respondent a lump sum for the electrical materials and work. Mathley paid for a portion of the plumbing fixtures himself, and paid Respondent a lump sum for the remainder of the fixtures and for the plumbing work. Mathley indicated on a county Subcontractors Verification Form1 prior to issuance of the building permit, that he would perform the electrical and plumbing subcontracting himself. During the course of construction, Mathley permitted Respondent to place a sign "Custom Homes by Ray Johnson" on the property to help him get business. Officials of the County Building Department placed a stop order on the premises on May 11, 1981, which recited that the reason for such notice was that subcontractors were not licensed. Respondent went to the Building Department where the supervisor of licensing explained to him that his sign did not correspond to the owner's building permit taken out by Mathley.

   Respondent performed the electrical and plumbing work as provided in the oral contract. (Testimony of Hayek, Mathley, Respondent, Petitioner's Exhibits 2, 6, Respondent's Exhibit 1.)

   
   

5. On March 6, 1981, Robert L. Rogers obtained an owner's building permit from the Sarasota County Building Construction Department to construct a residence at 3735 Beneva Oaks Boulevard, Sarasota, Florida. On the Subcontractors Verification Form which was completed prior to obtaining the building permit, Rogers stated that the electrical and plumbing work was to be performed by himself as owner. He entered into an oral contract with Respondent to do the framing, electrical and plumbing portions of the house and paid him in a lump sum for this work. Respondent advised him that he was not licensed to perform electrical and plumbing contracting in Sarasota, but was qualified in another county. Respondent performed the electrical and plumbing work as provided in the oral contract. (Testimony of Rogers, Respondent, Petitioner's Exhibit 2, Respondent's Exhibit 2)

   
   

6. Section 113.1 of Sarasota County Ordinance No. 80-90 makes it unlawful for any person to do any construction work in the various trades, including electrical and plumbing, unless he holds an active Sarasota County Operating Certificate, in addition to an applicable Sarasota County Certificate of Competency and State of Florida Registration, or a valid certification by the Florida Construction Industry Licensing Board. The ordinance further provides in that section that no person who is to perform all construction work on his own building is required to hold an operating certificate, provided that the building is for his own single family residence and the required permit is issued. It further provides that the hiring out by "day labor" in order to avoid operating certificate requirements shall be deemed a violation of the ordinance. Section 106.3(c) of the ordinance provides that all work contracted for under a construction permit shall be performed by contractors holding operating certificates for the particular trade involved. Respondent did not hold an operating permit or certificate of competency from Sarasota County at the time he did the work on the residences of Mathley and Rogers. (Testimony of Hayek, Petitioner's Exhibit 5)

   
   

7. Respondent testified at the hearing that he had originally intended to build the residences at 505 South Shore Drive and at 3625 Beneva Oaks Boulevard as personal residences and to move his family from Gainesville to Sarasota when his daughter completed high school in the spring of 1981, but that he was unable to do so because of financial difficulties involving unsold houses in Gainesville. However, he conceded that "Well, I am a builder. Any house that I build is for sale." He further testified chat he had resided for several days a week in the residence at 3625 Beneva Oaks Boulevard from the period after it was completed until it was sold. (Testimony of Respondent, Respondent's Composite Exhibit 3)

   CONCLUSIONS OF LAW

   
   

8. Petitioner's Administrative Complaint, as amended, alleged four violations of subsection 489.113(3), Florida Statutes, for failure to subcontract electrical, mechanical and plumbing work with respect to the four residences specified in the complaint. It is therefore further alleged that grounds for discipline exist under subsection 489.129(1)(d) , Florida Statutes. In addition, Petitioner alleges that Respondent violated subsection 489.533(1)(h), in that he practiced electrical contracting with an inactive license, and violated subsection 489.513(4), in that he practiced contracting in a county where he was not properly registered. It is alleged that these violations provide grounds for discipline under subsection 489.129(1)(d), F.S. Pertinent provisions of the statutes in question read as follows:

   
   

   489.113 Qualifications for practice; restrictions.--

   (3) A contractor shall subcontact the electrical

   ...[and] plumbing . . . work for which a local examination for a certificate of competency or a license is required, unless such contractor holds a state certificate of competency or license of the respective trade category, as required by the appropriate local authority.

   
   

   489.515 Registration; application; requirements; temporary registration.--

   1. Any person desiring to be registered as an electrical contractor shall apply to the department for registration.

   2. Any electrical contractor may be registered to contract in the area specified in such regis- tration if the contractor is qualified as provided in this section.

   3. All persons contracting in the state shall be registered with the department unless they are certified. To be registered, the applicant shall file evidence of holding a current occupational license or a current license issued by any munici- pality or county of the state for the type of work for which registration is desired, on a form provided by the department, together with evidence of success-

      ful compliance with the local examination and licensing requirements, if any in the area for which registration is desired, accompanied by the registration fee fixed pursuant to this act.

   4. Registration permits the registrant to engage in contracting only in the area and for the type

   of work covered by the registration, unless local licenses are issued for other areas and types of work or unless certification is obtained. When a regis- trant desires to register in an additional area of the state, he shall first comply with any local requirements of that area and then file a request

   with the department, together with evidence of holding a current occupational license or a license issued

   by the county or municipality for the area or areas in which he desires to be registered, whereupon his

   evidence of registration shall be endorsed by the department to reflect valid registration for the new area or areas.

   
   

   489.533 Disciplinary proceedings.--

   1. The following acts constitute grounds for which the disciplinary actions in subsection (2) may be taken:

   (h) Practicing on a revoked, suspended, or inactive certificate or registration.

   
   

9. Petitioner's attempt to discipline Respondent under subsections 489.129(1)(d) and 489.533(1)(h), Florida Statutes, cannot succeed as both provisions are grounds for discipline by the respective Construction Industry Licensing Board and the Electrical Contractors' Licensing Board. Grounds for discipline by the Electrical Contractors' Licensing Board can be asserted only in an Administrative Complaint issued by that Board.

   
   

10. Petitioner's allegations that Respondent failed to subcontract the electrical and plumbing work in violation of subsection 489.113(3), F.S., can only be sustained as to the two houses, for which Respondent was issued the building permits. He was not the general contractor as to the Mathley and Rogers residences and therefore cannot be charged with failing to subcontract work which was the duty of the owners of the property. As to the two residences which he built, Respondent defends on the ground that he was not obliged to subcontract electrical and plumbing work because he was building in the capacity of an owner and therefore was authorized to perform the work himself. In this regard, subsection 489.103(7), F.S., provides as follows:

    
    

    489.103 Exemptions.--

    (7) Owners of property building or improving farm outbuildings or one-family or two-family resi- dences on such property for the occupancy or use of

    such owners and not offered for sale, or building or improving commercial buildings at a cost of under

    $25,000 on such property for the occupancy or use of such owners and not offered for sale or lease. In all actions brought under this act, proof of the sale or lease, or offering for sale or lease, of more than one such structure by the owner-builder within 1 year after completion of same is presumptive evidence that the construction was undertaken for purposes of sale or lease.

    
    

11. It thus can be seen that the exemption from Chapter 489 is presumptively unavailable if more than one such structure is offered for sale or sold by the owner-builder within one year after completion. Further, the mere fact that the presumption is available as to the second building sold or offered for sale does not preclude a finding based upon sufficient evidence that, in addition, the first structure also was not exempt. In the instant situation, the evidence is clear that, although Respondent apparently had an ultimate intention of relocating and residing in Sarasota, he was, in fact, constructing the two houses with the intent to sell them, as evidenced by the fact that he placed advertising signs on both properties during construction. This conclusion is further supported by his admission at the hearing that since he was a contractor, every house he built was for sale. Thus, when consideration is also given to the fact that both houses were sold within a year after

    completion, it is apparent that Respondent was not entitled to claim the exemptions, and was therefore required to subcontract the work for which he was not licensed, i.e., the electrical and plumbing work, as provided in subsection 489.113(3) , Florida Statutes. The evidence shows that he was not licensed by Sarasota County for such trades, and that he did not hold a State Certificate of Competency in those trade categories, nor was he state registered for Sarasota County. Accordingly, he was required to subcontract the electrical and plumbing work and, having failed to do so, is subject to discipline under subsection 489.129(1)(d), F.S. for willful or deliberate disregard of an applicable law of the state, to wit, subsection 489.113(3), F.S.

    
    

12. The evidence also establishes that Respondent, with respect to the Mathley and Rogers residences, violated subsection 489.513(4), F.S., in that he practiced electrical contracting in a county where he was not properly registered, and therefore is subject to disciplinary action pursuant to subsection 489.129 (1)(4) F.S., as willful or deliberate disregard and violation of applicable building codes or laws of the state and of a county thereof.

    
    

13. In assessing an appropriate penalty for Respondent's violations of the pertinent statutes, it should be noted that the evidence does not reveal any detrimental effects upon the individuals for whom he performed contracting work. It is not questioned that he is a competent and experienced contractor. His derelictions consist of technical violations of the registration statutes and, accordingly, it is not believed that revocation of his license is warranted. However, it is clear that Respondent showed little regard for the registration requirements of Chapter 489 and should therefore be disciplined. It is believed that his license as a certified residential contractor should be suspended for a period of three (3) months.

RECOMMENDATION

That the Construction Industry Licensing Board suspend he license of Respondent Raymon E. Johnson as a certified residential contractor for a period of three (3) months.

DONE AND ENTERED this 2nd day of December, 1982, in Tallahassee, Florida.

THOMAS C. OLDHAM

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 2nd day of December, 1982.

COPIES FURNISHED:

John O. Williams, Esquire Department of Professional

Regulation

547 North Monroe Street, Suite 204 Tallahassee, Florida 32301

Raymon E. Johnson

P. O. Box 13981 Gainesville, Florida 32604

James Linnan, Executive Director Construction Industry Licensing

Board

Post Office Box 2 Jacksonville, Florida 32202

Samuel Shorstein, Secretary Department of Professional

Regulation

130 North Monroe Street Tallahassee, Florida 32301

================================================================= AGENCY FINAL ORDER

=================================================================

STATE OF FLORIDA

DEPARTMENT OF PROFESSIONAL REGULATION CONSTRUCTION INDUSTRY LICENSING BOARD

DEPARTMENT OF PROFESSIONAL REGULATION

Petitioner,

vs. CASE NO. 0015275

DOAH CASE NO. 82-2393

RAYMON E. JOHNSON CR C004461

612 101ST Street

Gainesville, Florida 32604

Respondent.

/

FINAL ORDER

This case came for final action by the Construction Industry Licensing Board on April 7, 1983, in Tampa, Florida. An administrative hearing held pursuant to Sec. 120.57(1), F.S., resulted in the issuance of a Recommended Order (attached hereto as Exhibit A) which was reviewed by the Board.

Petitioner filed exceptions to said Order which were considered by the Board. Upon consideration of the Recommended Order, Petitioner's Exceptions, and the complete record in this proceeding, it is ORDERED:

1. The findings of fact in the Recommended Order are approved and adopted and incorporated herein by reference.

   
   

2. The conclusions of law in the Recommended Order are approved and adopted and incorporated herein by reference, with the exception of the Hearing Officer's conclusions in paragraphs 2 and 3 of the Recommended Order. The Board adopts Petitioner's Exceptions to these conclusions and finds:

   
   

   The Hearing Officer states that the Construction Industry Licensing Board cannot assert grounds for discipline, Section 489.533(1)(h) , Florida Statutes, in that it could be asserted only by the Administrative Complaint issued by the Electrical Contractor's Licensing Board. Section 489.129(1)(d) , Florida Statutes reads as follows:

   
   

   489.129(1)(d)

   Willful or deliberate disregard and violation of the applicable building codes or laws of the state or of any municipalities or counties thereof.

   
   

   This provision of the law clearly contemplates that if a contractor violates the provisions of a state law, grounds are provided for the Construction Industry Licensing Board to discipline the person licensed by the Board. In this case, the Hearing Officer states that the Respondent did violate Section 489.533(1)(h), Florida Statutes, which is a state law, and therefore Section 489.129(1)(d) , Florida Statutes, provides the Board with a statutory basis to discipline the Respondent.

   
   

   The Hearing Officer states in paragraph 3 that the Respondent did not violate Section 489.113(3), Florida Statutes, because he was not the general contractor as to the Mathley and Rogers residence. The Hearing Officer, however, concluded in paragraph 4 and 5 under the Findings of Fact section of his Recommended Order that the Respondent performed the electrical and plumbing work on the respective residences. The Hearing Office further found under paragraph 6 of the Findings of Fact that Section 113.1 of the Sarasota County Ordinance No. 80-90 that it was unlawful in Sarasota County for any person to do any construction work in the various trades, including electrical and plumbing, unless that person held a Sarasota County operating certificate. The Hearing Officer further found in that same paragraph 6 that Respondent did not hold an operating certificate of competency from Sarasota County at the time he performed electrical and plumbing work on the Mathley and Rogers residences which were in Sarasota County.

   
   

   Section 489.113(3), Florida Statutes, provides that a contractor shall subcontract electrical and plumbing work if not properly licensed in a county which requires specific licensure, as is the factual situation in this case. The Respondent has, therefore, violated Section 489.113, Florida Statutes, as alleged in Counts Three and Four of the Administrative Complaint and should be disciplined.

   
   

3. The recommendation in the Recommended Order is be and is hereby rejected as inappropriate under the circumstances. The Board adopts Petitioner's Exception to said Recommended Order.

THEREFORE

It is ORDERED and ADJUDGED that the certified residential contractor's license of the Respondent be and the same is hereby suspended for a period of two years, and that the Respondent pay an administrative fine in the amount of

$4000.

DONE AND ORDERED this 22nd day of April, 1983.

FLORIDA CONSTRUCTION INDUSTRY LICENSING BOARD

Henry Bachara, Chairman

Docket for Case No: 82-002393

Orders for Case No: 82-002393