STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF PROFESSIONAL )

REGULATION, CONSTRUCTION )

INDUSTRY LICENSING BOARD, )

)

Petitioner, )

)

vs. ) CASE NO. 82-2987

)

McARTHUR CARTER, )

)

Respondent. )

)

RECOMMENDED ORDER

This case was heard pursuant to notice on March 1, 1953, in Miami, Florida, by Stephen F. Dean, assigned Hearing Officer of the Division of Administrative Hearings. This case was presented on a two-count Administrative Complaint filed by the Construction Industry Licensing Board against the Respondent, McArthur Carter, which alleged that Respondent had (1) violated specified provisions of the Dade County building code, and (2) been disciplined by the Dade County Construction Trades Qualifying Board.

APPEARANCES

For Petitioner: Harold M. Braxton, Esquire

45 Southwest 36th Court Miami, Florida 33135

For Respondent: McArthur Carter, pro se

17325 Northwest 18th Avenue Miami, Florida 33056

ISSUE

The issues in this case are as follow:

1. Did Respondent violate the Dade County building code, as alleged in Count I of the Administrative Complaint?

   
   

2. Did the Dade County Construction Trades Qualifying Board discipline Respondent?

3) Do Respondent's alleged acts violate Chapter 489, Florida Statutes?

Petitioner submitted post hearing proposed findings of fact in the form of a proposed recommended order. To the extent the proposed findings of fact have not been included in the factual findings in this order, they are specifically rejected as being irrelevant, not being based upon the most credible evidence, or not being a finding of fact.

FINDINGS OF FACT

1. The Respondent, McArthur Carter, is a registered residential contractor holding license number RR 0009875, which he held at all times relevant to the Administrative Complaint.

   
   

2. The Respondent contracted to construct an addition to the residence of Milton and Imogene Harvell. A copy of this contract was received into evidence as Petitioner's Exhibit 1.

   
   

3. The contract provided as follows: Front of House

   Forming of 2 arches

   Pouring 4" slab between arches Forming planting area

   Existing Carport Area - Remove existing Roof Enclose form arches

   Placing of new laundry area Room for tools

   All electric as shown on plans One window to utility

   Garage Section Floor trowel finish

   Ceiling 1/2 sheet plaster finish

   Work bench out 3/4 plywood

   One (1) double two light window

   Two (2) garage doors allowance (150.00) each Roof standard asphalt shingle 2x6 rafters Plugs and lights according to plans

   
   

   Den Extention [sic]

   
   

   Remove existing windowns [sic] & walls Replace window into new wall

   Match existing ceiling Match existing wall

   Two new lights - 3 new plugs Existing Utility [sic]

   Remove all fixtures and replace to new area Painting between owner & builder.

   (Owner to pay half of painting) exterior

   
   

   WE PROPOSE hereby to furnish material and labor -- complete in accordance with above specifications, for the sum of: Thirteen Thousand Five Hundred dollars ($13,500.00). Payment to be made as follows: 1/3 after signing of contract, 1/3 after exterior walls are complete, balance upon comple- tion of job.

   Authorized Signature: M. Carter (signed)

   
   

4. In addition, plans of the building were prepared by Respondent, and these were approved by the local building official.

   
   

5. The job began two weeks after the contract was signed, and an initial sum of $5,000 was paid by the Harvells to Respondent.

   
   

6. After approximately three months, after the exterior walls were up, Respondent ceased work because the Harvells had not paid him. He came back to work when he was paid another $5,000.

   
   

7. Respondent continued to work on the project for several more months, then again halted work on the project. By this time, there was a conflict between Respondent and the Harvells over the project, money and the Harvells' relationships with subcontractors.

   
   

8. After approximately six weeks, Mrs. Harvell called the local building officials. An inspection was made and an order to show cause issued. After a hearing in September of 1980 before the Dade County Construction Trades Qualifying Board, the local board acted to discipline the Respondent. However, at the same time the local board agreed to reinstate Respondent when the work was performed correctly and completely. This action of the local board was based upon Respondent's "abandonment" and changes to the plans for the garage ceiling. The record indirectly indicates that the local board's action on the change to the plans was tied to a fire code violation, because when the ceiling was redone with fire-resistant dry wall it was approved. The initial installation of dry wall that was not fire-resistant was not intentional but a simple mistake. The substitution of dry wall for plaster and lath is not per se a critical alteration, and it was not shown to be critical to the construction.

   
   

9. Respondent returned to the job in November of 1950 and finished the work in November, 1951. Final inspection was called for in June of 1982, and all the defects were corrected, the job was completed in accordance with the contract, and all code violations were corrected.

   
   

10. The local board has reinstated Respondent's license based upon his adherence to their agreement when action was originally taken against Respondent's license.

    
    

    CONCLUSIONS OF LAW

    
    

11. The Construction Industry Licensing Board has authority to take disciplinary action against a licensee or certificate holder pursuant to Section 489.129, Florida Statutes. The Division of Administrative Hearings has authority to enter this Recommended Order pursuant to Section 120.57, Florida Statutes.

    
    

12. The facts show that in 1980 the local authorities acted to discipline the Respondent for violating the Dade County building code, but at the same time agreed to rescind that action if he corrected the deficiencies for which he was cited. In 1951, the Respondent corrected the deficiencies, and in 1982 his license was restored. One wonders why the Construction Industry Licensing Board elected to bring this Administrative Complaint against the Respondent, a registrant who was not shown to be registered in any jurisdiction other than that which disciplined him, after the local board had seen fit to reinstate him.

13. After the expenditure of significant legal and administrative effort, the Board proved that the local board did discipline the Respondent. The Board failed to show that the Respondent deliberately violated the local building code. The two violations upon which the allegations of willful and deliberate violation of the local code were based were abandonment and changing the plans for the garage ceiling. The testimony shows that Respondent had not left the job for 90 days, the period required for abandonment under the statutes, when the Harvells complained to the local board. The record also shows a history of the Harvells not paying the Respondent until he ceased work. A deliberate abandonment is not proven. Regarding the plans, the record is not clear whether the local board took action on the ceiling change because of the fire code violation or departure from the plans. The record indirectly indicates that this action was related to the fire code because the Respondent con formed to the code's provisions by using fire-resistant dry wall percent, not plaster and lath as called for in the plans. Substitution of fire-resistant dry wall for plaster and lath is not per se a critical alteration of plans, nor was it shown to be a significant change in this case. The violation of the fire code arose from the installation of the wrong sheet rock on the ceiling, which the Respondent corrected. The Board did not show the Respondent's actions to be willful and deliberate.

    
    

14. Having proven that the local board disciplined the Respondent in 1980, the Board has proven that he violated Section 489.129(1)(i), Florida Statutes. However, reinstatement of the Respondent's license by the local board is significant mitigation.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, the Hearing Officer recommends that the Respondent, McArthur Carter, receive a letter of reprimand.

DONE and RECOMMENDED this 19th day of April, 1983, in Tallahassee, Leon County, Florida.

STEPHEN F. DEAN, 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 19th day of April, 1983.

COPIES FURNISHED:

Harold M. Braxton, Esquire

45 SW 36th Court Miami, Florida 33135

Mr. McArthur Carter 17325 NW 18th Avenue Miami, Florida 33056

Frederick Roche, Secretary Department of Professional

Regulation

130 North Monroe Street Tallahassee, Florida 32301

J. K. Linnan, Executive Director Construction Industry Licensing

Board

Post Office Box 2 Jacksonville, Florida 32201

Docket for Case No: 82-002987

Orders for Case No: 82-002987