STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

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

)

Petitioner, )

)

vs. ) Case No. 85-3256

)

ALAN PAYNE, SR., )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a final hearing in this cause was held on June 23, 1986, in Palatka, Florida, before Diane A. Grubbs, a hearing officer of the Division of Administrative Hearings.

APPEARANCES

For Petitioner: Errol H. Powell, Esquire

Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32301

For Respondent: Alan K. Payne, Sr., pro se

456 Sixth Street

Holly Hill, Florida 32018

ISSUES

Whether respondent committed those acts set forth in the amended Administrative Complaint, and if so, whether respondent's license should be revoked or suspended, or whether some other penalty should be imposed.

BACKGROUND

On July 19, 1985, the Department of Professional Regulation filed an Administrative Complaint against the respondent Alan K. Payne, Sr. Respondent disputed the

allegations set forth in the Administrative Complaint and requested a formal hearing pursuant to Section 120.57(1), Florida Statutes. The matter was referred to the Division of Administrative Hearings for further proceedings on September 23, 1985.

On June 17, 1986, petitioner filed a Motion to Amend the Administrative Complaint, a Motion to Hold Record Open or in the alternative a Motion for Continuance, and a Motion to Take Deposition by Telephone. In that the motions were served by mail on June 17, respondent did not have sufficient time to respond to the motions prior to hearing. The motions were considered at the outset of the hearing.

The respondent objected to the motion for continuance, objected to the motion to hold the record open for the subsequent filing of the complainant's deposition, and objected to the motion to take the deposition by telephone. Those motions were denied. Respondent had no objection to the motion to amend the Administrative Complaint, and such motion was granted. The cause therefore proceeded to hearing on the Amended Administrative Complaint.

The Amended Administrative Complaint alleges that respondent is a registered pool contractor in the State of Florida; that he was contacted to perform repair work on a motel pool located at Putnam County, Florida; that the respondent offered to repair the pool for a contract price of $7,000, which offer was accepted by the motel owners; that the respondent received $2,300 to begin the work; that respondent contracted with the motel owners to perform work which he was not legally authorized to do; and that respondent was not licensed to perform pool work in Putnam County. Based on the foregoing allegations, the complaint charged respondent with violating Sections 489.129(1)(j) and 489.117(2), Florida Statutes, by exceeding the scope of his license, and Section 489.129(1)(d), Florida Statutes, by willfully or deliberately disregarding and violating laws of the state or of any municipality or counties thereof.

At the hearing the petitioner presented the testimony of Alan R. Payne, Sr., the respondent; Alan K. Payne, Jr., the respondent's son; Jane Phillips, the office manager and custodian of records for the Putnam County Building Department; and Robert H. Boone, the Chief Inspector with the Putnam County Planning, Building, and Zoning Department. Petitioner's exhibits nos. 1 and 2 and 4

through 8 were admitted into evidence. The respondent presented no witnesses on his behalf and offered no exhibits.

Petitioner timely filed a proposed Recommended Order, and a ruling on each proposed finding of fact has been made in the appendix to this order. The respondent did not file proposed findings of fact or conclusions of laws.

FINDINGS OF FACT

1. At all times material to this matter, the respondent was a registered pool contractor, having been issued license no. RP 0021612, by the State of Florida, Department of Professional Regulation, Construction Industry Licensing Board. Respondent was first registered with the Construction Industry Licensing Board in 1974.

   
   

2. On May 2, 1984, respondent entered into a contract with Yhony Puente de la Vega for the repair of the swimming pool at the Siesta Motel located in Putnam County, Florida. The contract provided that the respondent would make certain repairs to the pool for the total price of $7,000. The contract further provided for a down payment of $2,300, which respondent received.

   
   

3. Prior to entering into the contract, respondent had examined the pool to determine the repair work that needed to be done. However, respondent was unaware that the Department of Health and Rehabilitative Services (HRS) required certain plans to be submitted and approved before the pool could pass inspection and become operational. Subsequent to entering into the contract, respondent learned of the HRS requirements and hired an engineer to prepare and submit the necessary plans for approval.

   
   

4. Although respondent had performed repair work on other motel pools, he had never before been required to submit plans for approval to HRS.

   
   

5. At some point after entering into the contract, but before he began any work, respondent was informed that he was not properly licensed to do the repair work on the pool. Due to the problem with the licensing and the HRS requirements that respondent had not anticipated, respondent contacted his son, a certified pool contractor,

   and asked him to take over the job. Respondent's son, Alan

   K. Payne, Jr., agreed to do the work.

   
   

6. From the evidence presented, it is unclear exactly when Alan R. Payne, Jr., took over the project. Alan K. Payne, Jr., testified that he had taken over the job by the time that HRS approved the plans for the pool on August 29, 1984. However, a proposed contract for the pool repairs dated March 1, 1985, and signed by Alan K. Payne, Jr., and a settlement stipulation dated June 6, 1985, whereby the parties agreed that Alan R. Payne, Jr., would complete the job according to the original contract, indicate that the motel owners and Alan R. Payne, Jr., did not reach an agreement on the terms of the contract until June of 1985.1

   
   

7. Respondent's son obtained the permit for the pool repair work from the Putnam County Building Department on June 13, 1985, and he subsequently completed the repair work.

   
   

8. At all times material hereto, respondent was a state registered pool contractor and was aware that such a license did not allow him to contract throughout the state, but only in those counties where he had met all local licensing requirements. Respondent had his wife call the Putnam County Building Department to determine if he could perform the pool work. He had relied on his wife to do this on other occasions. His wife informed him that it was "legal" for him to do the repair work. Respondent had never before performed any work in Putnam County.

   
   

9. When a person contacts the Putnam County Building Department to determine whether he can contract and obtain permits for work in Putnam County, he has to indicate whether he is "certified" or "registered." If the word "registered" is used, the person is directed to talk with the office manager, who advises the person as to the procedure for obtaining local competency. If the word "certified" is used, the person is informed that he can enter into contracts and obtain permits for work in Putnam County. There was no competent evidence presented as to what respondent's wife advised the Building Department, but she would not have been told that a state registered contractor could perform pool work or obtain permits in Putnam County.

10. Putnam County requires a registered contractor to have a certificate of competency or local competency in order for the contractor to perform contracting work and obtain permits to do the work in the county. Without a certificate issued by Putnam County, a registered contractor can neither perform work in Putnam County nor obtain permits for work in Putnam County.

    
    

11. A contractor who is state certified can perform work and obtain permits for work in Putnam County without obtaining local competency. The contractor would need only to provide a copy of his state certified license to the Putnam County Building Department.

    
    

12. At all times material hereto, respondent did not have local competency in Putnam County or a state certified license. Respondent was authorized to perform work in Volusia County. His application for registration lists only Volusia County.

    
    

    CONCLUSIONS OF LAW

    
    

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

    
    

14. Section 489.129, Florida Statutes, authorizes the Construction Industry Licensing Board to revoke or suspend the registration or certificate of a contractor and impose an administrative fine, place a contractor on probation, or reprimand or censure a contractor if the contractor is found guilty of committing any of the acts enumerated in that section.

    
    

15. The Amended Administrative Complaint alleges that respondent violated Sections 489.129(1)(j) and 489.117(2), Florida Statutes, by exceeding the scope of his license, and violated Section 489.129(1)(d), Florida Statutes, by willfully or deliberately disregarding and violating laws of the state or of any municipalities or counties thereof.

    
    

16. Section 489.129(1)(j), provides for disciplinary action when a contractor fails "in any material respect to comply with the provisions of this act." Section 489.117(2) states that:

    Registration allows the registrant to engage in contracting only in the counties, municipalities or development districts where he has complied with all local licensing requirements and only for the type of work covered by the registration.

    
    

    Section 489.105(9) defines a registered contractor as:

    
    

    [A]ny contractor who has registered with the department pursuant to fulfilling the competency requirements in the jurisdiction for which the registration is issued.

    Registered contractors may contract only in these areas.

    
    

17. At the time respondent entered into the contract to perform the repair work on the Siesta Motel pool in Putnam County, respondent was licensed to engage in contracting only in Volusia County. Respondent had not complied with the local licensing requirements of Putnam County and, therefore, pursuant to Section 489.117(2), Florida Statutes, could not engage in, contracting in Putnam County. Section 489.105(5), Florida Statutes, defines "contracting" as "engaging in business as a contractor." Section 489.105(3), Florida Statutes, defines "contractor" as "the person who, for compensation, undertakes to . . . repair . . . improve any building or structure." By entering into the contract to repair the pool for compensation, respondent engaged in contracting in Putnam County. Thus, respondent failed to comply with the requirements of Section 489.117(2), and is therefore subject to discipline pursuant to Section 489.129(1)(j).

    
    

18. The Amended Administrative Complaint charges that respondent is guilty of willful and deliberate disregard and violation of the applicable building codes or laws of the state or any municipalities or counties thereof. The complaint does not state what building code or law respondent violated. Petitioner argues that respondent is guilty of violating the applicable building code because he contracted for work in Putnam County without meeting Putnam County's certification requirements. However, Section 9 of the Putnam County Building Code, which was entered into evidence, states only that "[i]t shall be unlawful . . . for any person, not certified in accordance with the provision of this Ordinance, to do any construction, maintenance, or repair. . . ."(e.s.) The evidence presented establishes that respondent never did any work on the pool. He therefore did not violate the Putnam County

Building Code and is not subject to discipline pursuant to Section 489.129(1)(d), Florida Statutes.

RECOMMENDATION

Based upon the foregoing findings of fact and conclusions of law, it is

RECOMMENDED that a final order be entered finding respondent guilty of violating Section 489.129(1)(j), by his failure to comply with Section 489.117(2), and not guilty of violating Section 489.129(1)(d), Florida Statutes. It is further -recommended that respondent be fined $250 and placed on probation for a period of one (1) year under such terms and conditions as the Construction Industry Licensing Board considers appropriate.

DONE and ENTERED this 11th day of September, 1986, in Tallahassee, Florida.

DIANE A. GRUBBS, Hearing Officer Division of Administrative Hearings The Oakland Building

2009 Apalachee Parkway

Tallahassee, Florida 32399

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 11th day of September, 1986.

ENDNOTE

1/ The proposed contract signed by Alan R. Payne, Jr., indicates that the cost for the repairs would be $11,500, with the original down payment of $2,300 being credited. The settlement stipulation, entered into by de la Vega and Alan K. Payne, Sr., states that the project will be completed by Alan K. Payne, Jr., according to the original contract with the payments to stay the same. The original contract was amended, apparently to conform to the settlement agreement, to reflect Alan K. Payne, Jr., as the contractor and to specify June 30, 1985, as the

completion date for the repair work.

COPIES FURNISHED:

Fred L. Seely Executive Director

Department of Professional Regulation Construction Industry Licensing Board

P. O. Box 1 Jacksonville, FL 32201

Fred Roche Secretary

Department of Professional Regulation

130 North Monroe Street Tallahassee, FL 32301

Salvatore A. Carpino General Counsel

130 North Monroe Street Tallahassee, FL 32301

Errol H. Powell, Esq. Department of Professional

Regulation

130 North Monroe Street Tallahassee, FL 32301

Alan R. Payne, Sr., pro se

456 Sixth Street Holly Hill, FL 32018

APPENDIX

The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on all of the Proposed Findings of Fact submitted by the petitioner to this case.

Rulings On Proposed Findings of Fact Submitted by the Petitioner

1.-2. Accepted in paragraph 1.

3.-4. Accepted in paragraph 2.

1. Accepted generally in paragraphs 3 and 4.

2. Accepted in paragraphs 3 and 6.

3. Accepted in paragraph 8.

4. Accepted in paragraph 5.

5. Accepted as modified in paragraph 6. 10.-11. Accepted paragraph 6 and footnote 1.

12. Accepted in paragraph 7. 13.-14. Accepted in paragraph 8.

1. Rejected as unnecessary and cumulative based on finding in paragraph 8.

2. Accepted in paragraph 10.

3. Accepted in paragraph 11.

4. Accepted in paragraph 12.

5. Rejected as unnecessary based on finding in paragraph

20-21. Accepted in paragraph 8.

22.-23. Accepted in paragraph 9.

Docket for Case No: 85-003256

Orders for Case No: 85-003256