STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF PROFESSIONAL )

REGULATION, CONSTRUCTION )

INDUSTRY LICENSING BOARD, )

)

Petitioner, )

)

vs. ) CASE NO. 82-3157

)

ARTHUR A. NORIEGA, )

)

Respondent. )

)

RECOMMENDED ORDER

This hearing was held pursuant to notice in the First Floor Conference Room (Room N-158) of the County Administration Building, 1840 25th Street, Vero Beach, Florida, at 9:30 a.m. on January 17, 1983, by Arnold H. Pollock, Hearing Officer with the Division of Administrative Hearings.

APPEARANCES

For Petitioner: Jane Heerema, Esquire

Roberts, Egan & Routa, P.A.

217 South Adams Street Post Office Box 1386

Tallahassee, Florida 32302

For Respondent: Was not present or represented by counsel.

PRELIMINARY INFORMATION

By Administrative Complaint filed October 25, 1982, the Department of Professional Regulation, for the Construction Industry Licensing Board, seeks to suspend, revoke, or take other disciplinary action against Respondent as licensee and against his license to practice contracting under the laws of the State of Florida. In two counts, the Petitioner alleges as grounds therefor that in December, 1981, Respondent performed commercial contracting while possessing only a residential contractor's license, without first obtaining a building permit for the work; that Respondent has performed work as a contractor without renewing his contractor's license; and has changed the location of his business address without notifying the Petitioner of the change.

Petitioner presented the testimony of Ms. Ester Rymer, Ms. Harriet Jackson and Mr. Thomas McAndrews, along with Petitioner's Exhibits 2 through 5, which were received into evidence at the final hearing. Petitioner's Exhibit 1 was filed late with the Division of Administrative Hearings in Tallahassee.

FINDINGS OF FACT

1. Arthur A. Noriega, Respondent, was issued a residential contractor's license, No. RR0026713, which reflects his address as c/o Noriega Construction, Inc., 5600 South Winter Beach Road, Box 111, Winter Beach, Florida 32971. Respondent's license required renewal, but as of June 30, 1981, he had failed to renew his registration with the Petitioner.

   
   

2. Respondent was also required by law to notify Petitioner of any change of address from that listed on his license. He failed to do so.

   
   

3. Arthur A. Noriega was issued a certificate as a Class III Contractor by the City of Vero Beach, Florida, by Certificate of Registration No. 270, on January 9, 1976, based on his passing the H. H. Block Examination, as certified by the Director of Building and Construction of Brevard County, Florida, per Certificate No. 2096, issued on December 5, 1975.

   
   

4. A Class III Contractor is authorized by law to construct one and two- family residential buildings, and is not authorized to perform commercial construction.

   
   

5. On August 21, 1981, Respondent entered into an agreement in writing with the Vero Mall to install two Class B fire doors with jambs, thresholds, and panic handles at the mall facility at 1255 U.S. Highway 1, Vero Beach, Florida, for a total sum of $1,160, to be paid in two segments: one half down at signing of the agreement, and the remaining half upon completion of the project. This work is classified as commercial, and is not within the scope of Respondent's license.

   
   

6. The work was completed in December, 1981, except for the closers (panic bars); however, the Respondent was paid in full by check by Jim Wilson & Associates, owners of the Vero Mall.

   
   

7. Indian River County Ordinance No. 80-17, effective on April 28, 1980, et seq., requires, at Section I, Paragraph 3, by amending Section 105.1(e) of Indian River County Ordinance No. 74-11, that all construction except ordinary, minor, nonstructural repairs not exceeding in cost of $100 be commenced only upon the approval of the building official and with a permit.

   
   

8. The permit from Indian River County, upon the application of the Respondent, to cover the work called for as the Vero Mall, which had been at least partially accomplished in December, 1981, was not issued until February 26, 1982, approximately two months after the work was accomplished. The permit was applied for and granted by mistake after a citation had been issued to the Respondent for working without a permit because county officials failed to check what the status of the Respondent was at the time of the application. Had they checked, the permit would not have been issued because Respondent was not certified for commercial construction. When the permit was issued, however, a double fee was charged because of the fact that it was applied for after work was begun.

   
   

9. On October 25, 1982, an Administrative Complaint was filed in this case by the Secretary, Department of Professional Regulation, on behalf of the Construction Industry Licensing Board, containing allegations consistent with the above Findings of Fact. This complaint was served on the Respondent by hand delivery by Mr. Thomas G. McAndrews, an investigator for the Department of Professional Regulation, at 956 13th Avenue, Vero Beach, Florida. This address,

   at which the Respondent was doing business, is different from that listed on his application for a Certificate of Registration and from that last appearing on the records of the Petitioner.

   
   

   CONCLUSIONS OF LAW

   
   

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

    
    

11. Respondent's entering into a contract for and performing of work outside the scope of his registration violates Section 489.117(2), Florida Statutes, and therefore constitutes grounds for discipline under Section 489.129(1)(j), Florida Statutes.

    
    

12. His failure to renew his license before contracting for and performing contract work violates Sections 489.115(3)(a) and (b), Florida Statutes, and therefore constitutes grounds for discipline under Section 489.129(1)(j), Florida Statutes.

    
    

13. Respondent's failure to notify Petitioner in a timely manner of his change of address violates Section 489.129(2), Florida Statutes, and Rule 21E- 15.07, Florida Administrative Code.

    
    

14. Respondent's willful and deliberate failure to secure a construction permit prior to beginning construction under his contract with Vero Mall violates Indian River County Ordinance No. 80-17 and Section 489.129(1)(d), Florida Statutes.

    
    

15. The Petitioner has submitted a Proposed Recommended Order which includes proposed findings of fact and conclusions of law. The proposed findings and conclusions have been adopted only to the extent that they are expressly set out in the Findings of Fact and Conclusions of Law above. They have been otherwise rejected as contrary to the better weight of the evidence, not supported by the evidence, irrelevant to the issues, or legally erroneous.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED:

That Respondent's contractor's license be suspended for a period of six months.

RECOMMENDED this 8th day of February, 1983, in Tallahassee, Florida.

ARNOLD H. POLLOCK

Hearing Officer

Division of Administrative Hearings Department of Administration

2009 Apalachee Parkway

Tallahassee, Florida 32301

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 8th day of February, 1983.

COPIES FURNISHED:

Jane Heerema, Esquire Roberts, Egan &. Routa, P.A.

217 South Adams Street Post Office Box 1386

Tallahassee, Florida 32302

Mr. Arthur A. Noriega Post Office Box 2303

Vero Beach, Florida 32960

Mr. Fred Roche Secretary

Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32301

Mr. James Linnan Executive Director

Construction Industry Licensing Board Department of Professional Regulation Post Office Box 2

Jacksonville, Florida 32202

Docket for Case No: 82-003157

Orders for Case No: 82-003157