Judges: WILLIAM R. DORSEY, JR.
Agency: Department of Business and Professional Regulation
Latest Update: Apr. 04, 1986
Summary: On February 16, 1984, the Petitioner, Department of Professional Regulation, filed a three count Administrative Complaint alleging that Respondent, Robert Tucker, has violated: Section 489.12(1)(d), Florida Statutes (1981), by willfully or deliberately disregarding applicable building codes or laws of a municipality;Respondent was a licensed contractor when he built carport but failed to get city permit. Respondent was fined. Count dropped for failure to notify Board of new address.
85-4329.PDFSTATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
DEPARTMENT OF PROFESSIONAL )
REGULATION, CONSTRUCTION )
INDUSTRY LICENSING BOARD, )
)
Petitioner, )
)
vs. ) Case No. 85-4329
)
ROBERT TUCKER, )
)
Respondent. )
)
RECOMMENDED ORDER
Pursuant to notice, a formal hearing was held in this case before William R. Dorsey, Jr., the Hearing Officer designated by the Division of Administrative Hearings, on March 19, 1986 in Tallahassee, Florida. Proposed findings of fact have been filed by the Department, all of which are accepted in this Recommended Order and are either adopted verbatim or modified for style or accuracy.
APPEARANCES
For Petitioner: Errol H. Powell, Esquire
Department of Professional Regulation
130 North Monroe Street Tallahassee, Florida 32301
For Respondent: No Appearance
PRELIMINARY STATEMENT
On February 16, 1984, the Petitioner, Department of Professional Regulation, filed a three count Administrative Complaint alleging that Respondent, Robert Tucker, has violated:
Section 489.12(1)(d), Florida Statutes (1981), by willfully or deliberately disregarding applicable building codes or laws of a municipality;
Section 489.129(1)(j), Florida Statutes (1981), by failing in a material respect to comply with the provisions of Section 489.115(3)(a) and (b), Florida Statutes (1981), by
engaging in or acting in the capacity of a contractor without renewing his registration; and
Section 489.129(1)(c), Florida Statutes (1981), by violating Section 455.227(1)(b), in that the Respondent intentionally violated a rule adopted by the Board or the Department by failing to notify the Board of a change of address, contrary to the provisions of Chapter 21E-15, Florida Administrative Code.
Respondent requested a formal hearing. Notice of the final hearing was properly addressed and mailed to Mr. Tucker at the address on the Election of Rights form in which he requested a hearing, and was not returned. Mr. Tucker did not attend the final hearing in person, by counsel or by any other qualified representative.
At the outset of the formal hearing, Petitioner was allowed to amend the Administrative Complaint. Paragraph 4, line 2 was amended to reflect the correct citation as Section 7-63, Buildings and Construction Regulations, as adopted by the City of Tallahassee. The Department presented the testimony of three witnesses and eight exhibits were received in evidence. Exhibits
will be designated as (Ex-
).
ISSUE
The issue is whether Respondent's license as a registered building contractor should be disciplined for the acts alleged in the Administrative Complaint, as amended?
FINDINGS OF FACT
Respondent, Robert Tucker, is a registered building contractor holding State of Florida license number RB 0033063 (Ex. 7).
Respondent was licensed as a building contractor by the State of Florida in September 1978, and has remained licensed at all times material hereto (Ex. 7).
Since September 20, 1978, Respondent has held a local Building Contractor's License issued by the Leon County Contractor Licensing and Examination Board (Ex. 7).
Respondent's license with the Department has been delinquent since July 1, 1985 (Ex. 7).
In July 1983, Respondent made an oral agreement with Violet Gladieux to erect a carport for her at a cost of $1,350
(Ex. 3). Ms. Gladieux's residence is located at 2321 Belle Vue Way, within the city limits of Tallahassee.
Jay Gladieux, Jr. became acquainted with Mr. Tucker from his position as an employee of Mr. Tucker on a prior construction project. Mr. Gladieux introduced his mother, Ms. Gladieux, to Mr. Tucker for the carport construction.
It was orally agreed that Ms. Gladieux would pay Mr. Tucker for supplies as they were needed.
Mr. Tucker began erection of the carport approximately one week after July 11, 1983, when he received the first payment of $300.
On July 29, 1983, Mr. Tucker received final payment of
$350 so that he could complete the carport (Ex. 3).
Approximately two weeks after July 29, 1983, Respondent completed the carport.
A permit for the erection of the carport was required by Section 7-63, Buildings and Construction Regulations (The Building Code) of the City of Tallahassee. The language of that ordinance has not changed since 1957 (Ex. 1).
No building permit was ever obtained by Mr. Tucker for erection of the carport.
Approximately two weeks after completion of the carport, it collapsed after a heavy rainfall (Ex. 4 and 5).
Mr. Tucker returned to repair the damaged carport. He erected center studs and was to return later to complete the damage repair. Mr. Tucker has failed to return to complete the damage repair after requested to do so by Jay Gladieux.
When an administrative complaint has been filed against a contractor, personal service of the complaint is attempted upon the contractor at his last address of record.
If personal service cannot be effectuated at the contractor's last address of record, further attempts are made to locate the contractor. The building departments, both City and County, the telephone company, utility company and post office are contacted. The building departments are contacted to determine if the contractor has obtained any permits, for the permits would list the contractor's address. The telephone company is contacted for prior and new telephone listing(s) with address(es). The post office is contacted for forwarding
address(es). The utility company is contacted for new utility service which would contain a new address (es).
If the contractor cannot be located after using these avenues, a diligent search affidavit is executed by the investigator who is attempting to serve the contractor.
In September 1978 and at all times pertaining to the construction of the carport, Respondent's address of record with the Department was 1515-21 Paul Russell Road and P.O. Box 20234, Tallahassee, Florida. Respondent had not notified the Department of Professional Regulation, Construction Industry Licensing Board of any change in his address (Ex. 7), other than by the new address revealed on the Election of Rights form he filed in response to the administrative complaint.
The Department attempted to personally serve Mr. Tucker at his listed address and could not locate him there. On May 21, 1984, Robert E. Connell, an investigator for the Department of Professional Regulation, executed a diligent search affidavit concerning service of the Administrative Complaint upon Mr. Tucker in this proceeding (Ex. 8).
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction of the subject matter and the parties thereto pursuant to Section 120.57(1), Florida Statutes (1985).
Section 489.129, Florida Statutes (1981), authorizes the Construction Industry Licensing Board to revoke or suspend registration or certification of a contractor or impose an administrative fine, place a contractor on probation, reprimand or censure a contractor if the contractor is found guilty of any of the acts enumerated in that section.
Mr. Tucker was a contractor as defined in Section 489.105(3), Florida Statutes (1981). He made an oral agreement with Ms. Gladieux to construct a carport for compensation. He entered into the agreement in his capacity as a contractor, and was, therefore, engaging in contracting as defined in Section 489.105(5), Florida Statutes (1981).
There is no evidence to show that Respondent's license was delinquent at the time he was engaging in the business of contracting with Ms. Gladieux.
Section 7-63, Buildings and Construction Regulations (The Building Code) of the City of Tallahassee, in effect in 1983, states in pertinent part:
It shall be unlawful for any person to construct, alter, repair, remove or demolish, or to commence the construction, alteration, repair, removal or demolition of a building or structure in the city without first obtaining a formal permit from the building and zoning official. . .
A building permit was required by the City of Tallahassee prior to construction of the carport.
Section 489.117(2), Florida Statutes (1981), states that a registered contractor is allowed to contract only in the counties or municipalities where he has complied with all local licensing requirements. As a registered contractor, Mr. Tucker has been able to contract in the City of Tallahassee and Leon County since the time of his registration, September 1978.
Because Mr. Tucker has been licensed to engage in contracting in the City of Tallahassee and Leon County since September 1978, it is reasonable to infer that at the time of the oral agreement with Ms. Gladieux, Mr. Tucker was aware of the permit requirement of the City of Tallahassee. Section 7-63, Buildings and Construction Regulations (The Building Code) of the City of Tallahassee has been in effect without change since Mr. Tucker first became a contractor in 1978.
The term "willful" has been defined as
Intending the result which actually comes to pass; designed; intentional; not accidental or/ involuntary . . .
Black's Law Dictionary, Rev. 4th Ed. 1968. The term "deliberate" has been defined as:
Well advised; carefully considered; not sudden or rash; circumspect; slow in determining. Willful rather than merely intentional . . .
Black's Law Dictionary, Rev. 4th Ed. 1968. As a licensed building contractor in Leon County since 1978, who has engaged in other contracting activities, such as the one on which Jay Gladieux worked when he met Mr. Tucker, I infer that Mr. Tucker's failure to obtain a building permit was at least willful, although perhaps not deliberate. The Department has established the violation alleged in count one of the Administrative Complaint.
Based upon Findings of Fact 2 and 4, the Department has failed to establish that Mr. Tucker has acted as a contractor without renewing his registration; count two should be dismissed.
Section 489.129(1)(c), Florida statutes, prohibits a violation of Chapter 455. Section 455.227(1)(b), Florida Statutes, provides for disciplining a licensed contractor who "has intentionally violated any rule adopted by the board or department."
Chapter 21E-15, Florida Administrative Code, provides by Rule 21E-15.07 that:
A . . . registrant shall notify the Department within thirty (30) days of a change in his . address from that which appears on his current certificate of registration . . . Failure to do so may constitute cause for disciplinary action.
The rule does not prescribe a manner in which a change of address must be filed with the Board. Respondent no longer resides at his address of record with the Department of Professional Regulation, Construction Industry Licensing Board. A diligent search affidavit was executed by an investigator for the Department of Professional Regulation, after attempting personal service on Respondent of the Administrative Complaint at his address of record (Ex. 8). The Election of Rights form signed by Mr. Tucker contains a different post office address than that on file with the Board (Ex. 7). Which address the Department's investigator, Mr. Connell, used as Mr. Tucker's "last known address" does not appear on the affidavit (Ex. 8). There is no evidence in this record that the time between Mr. Tucker's removal from his former mailing address on Paul Russell Road and his replacement of that address with the new post office box disclosed on the Election of Rights form was more than 30 days. Count three should be dismissed.
The failure to complete proper repairs on the Gladieux carport is reprehensible, and perhaps an abandonment of a project in violation of Section 489.129(1)(k), Florida statutes (1981), or proof of gross negligence or incompetency by improper initial construction, or even misconduct in the practice of contracting for failure to complete the repairs in violation of Section 489.129(1)(m), Florida Statutes (1981), but no such charges were made in the Administrative Complaint. Neither is there any evidence that the failure to obtain the permit contributed to the construction problem with the carport. For the charge
established, willful failure to obtain one building permit, no severe penalty is warranted.
RECOMMENDATION
Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that Respondent be found guilty of the charges in count one of the Administrative Complaint, as amended; that counts two and three be dismissed; and that he be fined
$250.00.
DONE AND ORDERED this 4th day of April 1986 in Tallahassee, Leon County, Florida.
WILLIAM R. DORSEY,JR., 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 4th day of April 1986.
COPIES FURNISHED:
Mr. James Linnan Executive Director
Construction Industry Licensing Board
P.O. Box 2
Jacksonville, Florida 32202
Mr. Fred Roche Secretary
Department of Professional Regulation
130 North Monroe Street Tallahassee, Florida 32301
Salvatore A. Carpino, Esquire General Counsel
Department of Professional Regulation
130 North Monroe Street Tallahassee, Florida 32301
Errol H. Powell, Esq. Department of Professional
Regulation
130 North Monroe Street Tallahassee, Florida 32301
Mr. Robert Tucker
P.O. Box 10218
Tallahassee, Florida 32302
Docket for Case No: 85-004329
Orders for Case No: 85-004329
| Issue Date |
Document |
Summary |
|
Jul. 30, 1986 |
Agency Final Order
|
|
|
Apr. 04, 1986 |
Recommended Order
|
Respondent was a licensed contractor when he built carport but failed to get city permit. Respondent was fined. Count dropped for failure to notify Board of new address.
|
