STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

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

)

Petitioner, )

)

vs. ) CASE NO. 87-0159

)

FRANCIS M. LINER, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a hearing was held on this cause on March 24, 1987, in Tampa, Florida, before Diane A. Grubbs, a hearing officer with the Division of Administrative Hearings.

APPEARANCES

For Petitioner: W. Douglas Beason, Esquire

Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32399-0750

For Respondent: Francis M. Liner, pro se

Post Office Box 2016 Lutz, Florida 33549

ISSUES

Whether respondent committed the acts alleged in the administrative complaint, and, if so, whether respondent's license should be revoked, suspended or otherwise disciplined pursuant to Section 489.129, Florida Statutes.

BACKGROUND

On November 14, 1986, petitioner filed an administrative complaint against the respondent. The complaint alleged that at all relevant times, respondent was licensed as a certified building contractor and registered building contractor, that respondent was disciplined by the Hillsborough County Building Board on or about September 30, 1986, for violations generally consisting of aiding and abetting unlicensed persons; willful or deliberate violation of local law; fraud, deceit, gross negligence, incompetence or misconduct in contracting; failure to show license numbering advertising; and failure to show license number on a contract. Based on the foregoing allegations, respondent was charged in count one of the complaint with violating Section 489.129(1)(i), by being disciplined by a local government. Count two of the complaint alleged that, through respondent's contracting business, respondent contracted with Patrick Sweeney on or about August 16, 1985, to build a screen enclosure for

$3,250; that respondent began work on the job without obtaining a permit for the work or posting a permit on the site of the work, in violation of local law; that respondent failed to obtain required inspections by the local building department, in violation of local law; and that the respondent's failure to obtain the permit and obtain the required inspections were the result of respondent's failure to competently supervise the activities of his contracting business. Based on the foregoing allegations, respondent was charged in count two with violating Section 489.129(1)(d), by willful violation of local law; and Section 489.129(1)(m), by gross negligence, incompetence, misconduct, fraud, or deceit in the practice of contracting. The complaint also alleged that respondent had twice previously been disciplined by the Florida Construction Industry Licensing Board.

On December 29, 1986, respondent disputed the factual allegations contained in the administrative complaint and requested a formal hearing on the charges.

On January 13, 1987, the matter was referred to the Division of Administrative Hearings for further proceedings.

At the hearing the petitioner presented the testimony of Tom Alderman, Hillsborough County Codes Compliance Investigator; Bonnie Maxwell, Records Clerk for the City of Tampa Building Department; and Emily Sweeney. The respondent testified on his own behalf. Petitioner's exhibits 1 through 12 were admitted into evidence. Petitioner was authorized to late file petitioner's exhibit number 13, a copy of the Sweeney contract, but failed to do so. The respondent did not enter any exhibits into evidence.

Neither petitioner nor the respondent timely filed proposed findings of fact or conclusions of law.

FINDINGS OF FACT

1. Respondent is, and was at all times relevant to the administrative complaint, a certified building contractor in the State of Florida, having been issued license number CB C011812. Respondent is and was at all relevant times a registered building contractor in the State of Florida having been issued license number RB 0006305. At all times material to the administrative complaint respondent's certified building contractor license (CB 0011812) qualified "Metal Products of Tampa, Inc." with the Florida Construction Industry Licensing Board.

   
   

2. Section 111.1 of the Hillsborough County Building Code, Ordinance No. 86-6, adopted February 13, 1986, (henceforth Code) established the Building Board of Adjustment, Appeals and Examiners (henceforth Board). The Board is given authority to hear charges of violations of the provisions of the Code against any building contractor and to impose the disciplinary actions listed in Section 111.7 on any contractor found by the Board to have violated any provisions of the Code. Section 111.4, Hillsborough County Building Code.

   
   

3. Section 111.5 of the Code sets forth the grounds for disciplinary action by the Board. Section 111.6 provides that a written notice of hearing shall be provided to the contractor alleged to have committed one or more of the grounds for disciplinary action. The notice includes the grounds alleged and the time, date, and place of hearing. After the hearing, if the Board finds that disciplinary action is justified, it may suspend the contractor from all operations as a contractor for a period not to exceed five years, it may revoke the contractor's certificate of competency, or it may limit the number of permits a contractor may be issued. The code also provides that after

   revocation, the Board shall reinstate a certificate of competency on proof of compliance with the provisions of the Code. Section 111.7, Hillsborough County Building Code. The decision of the Board is reduced to writing, but the order of the Board takes effect immediately upon the vote of the Board, unless an extension of time is granted. The violator may petition the Board for rehearing within ten days after the entry of the order. If a petition for rehearing is denied, the violator shall have the right, within thirty days after entry of the order, to appeal to the Board of County Commissioners. If no petition for rehearing has been taken, the violator may take an appeal within thirty days from the entry of the initial decision.

   
   

4. On September 30, 1986, a hearing before the Board was held on the charges brought against the respondent. The respondent was provided with a copy of all charges against him. The following is a summary of the events which led up to the charges brought against respondent by the Building Department, as set forth by the Board staff in the charging documents:

   
   

   A.

   On November 9, 1984, Mr. Charles Russell contracted with Mr. Ansel Thompson, doing business as Jackson Heights Blue Prints, to add a Florida room, bathroom, carport, utility room, front entry, and roof addition....

   The building permit was purchased for the addition by Mr. Liner. Mr. Ansel Thompson is unlicensed in Hillsborough County. There is no record of a Certificate of Occupancy issued by the Building Department. A red-tag violation by the Plumbing Section of the Building Department is outstanding at this time. Mr. Thompson has been paid $17,200 for the project.

   
   

   B.

   On October 3, 1984, Mr. and Mrs. William Madden contracted with Liner Construction to build an addition to their residence... Liner Construction has received $11,645 payment from the

   Maddens. A red-tag violation was issued by the Building Department for a leak- ing roof. No certificate of occupancy was issued on this project.

   
   

   C.

   On March 4, 1965, Mr. Barry Dingman contract- ed with Liner Construction to install a screen room/pool enclosure at his residence. Mr. Liner purchased the permit for project; no inspections are on record and no certifi- cate of occupancy has been issued by the Building Department.

   D.

   Mrs. Ann Katschka contracted with Liner Construction on October 16, 1984, for a screen room enclosure. Mr. Liner purchased the building permit; there is no record of inspections or a certificate of occupancy issued by the Building Department on this project. Mrs. Katschka complains that rain continues to leak into screen room.

   
   

   E.

   On March 27, 1985, Mr. C. G. Meyer contract- ed with Liner Construction for a screen room addition. Mr. Liner purchased the building permit for the project; no inspections or cer- tificate of occupancy are on record at the Building Department.

   
   

   F.

   On March 16, 1984, Mr. and Mrs. Mallory contracted with Liner Construction to build a screen room addition ... Mr. Liner purchased the building permit; no inspections or certificate of occupancy are on record

   at the Building Department.

   
   

   G.

   In December, 1984, Mr. Larry Schoenberger contracted with Liner Construction for a screen room addition ...Mr. Liner purchased the building permit for the project; no inspections or certificate of occupancy are on record at the Building Department.

   
   

   H.

   On September 30, 1986, Mr. Moyer contracted with Liner Construction for a residential addition/garage. .Mr. Liner has received approximately $25,000 payment for the project. Mr. Liner, however, did not pay his subcontractors, causing them to file Notices to Owner of intent to file liens.

   Mr. Moyer personally paid Edward Connor

   $1,200 for labor on roofing and framing services, and Crane & Crane Electric $1,008 for wiring and fixtures to avoid Claims of Lien. Mr. Liner still has not paid Florida Garage $913 owed and Cox Lumber Company approximately $7,000 owed. Mr. Liner has filed a Claim of Lien against the Moyers for

   $9,006. Building and electrical inspections were completed and finaled; however, the roofing permit was never purchased, resulting in the project remaining unfinaled by the Building Department.

5. Based on the foregoing allegations, respondent was charged with several violations of the Code, including (a) aiding or abetting an uncertified person to evade any provision of the Code; (b) willful or deliberate disregard of applicable building codes; (c) failure to comply with the provisions of the Code; (d) violations of Chapter 489, Florida Statutes; (e) abandonment of construction projects; and, (f) in the Russell case, fraud, deceit, gross negligence, incompetency, or misconduct in the practice of contracting. The charges of failure to comply with the Code were based on respondent's failure to display the state registration or certification number on written contracts, his failure to call for required inspections, and his failure to obtain certificates of occupancy. The violation of Chapter 489 that was alleged, that did not duplicate Code violations, was failure to inform the department of an affiliation with a different business in violation of 489.119, Florida Statutes.

   
   

6. Respondent was present at the hearing on the charges held before the Board on September 30, 1986. He advised the Board that, as to the Russell case, he had planned to go into business with Mr. Thompson but changed his mind. Respondent stated that the problems which were the subject of Mr. Russell's complaints had been corrected. Respondent also advised the Board that he had taken steps to correct the other problems complained of and that he was now supervising all the construction projects personally.

   
   

7. After considering the documentary evidence presented and hearing from respondent and Mr. Madden, the Board voted 6-0 to revoke respondent's State of Florida permitting privileges in Hillsborough County and respondent's Hillsborough County license. Respondent was advised that he could appeal the decision.

   
   

8. By written order entered September 30, 1966, and received by respondent on October 15, 1986, the Board found that respondent admitted the truth of all allegations against him and ordered that respondent's Hillsborough County license and his State of Florida permitting privileges in Hillsborough County be revoked.

   
   

9. As of the date of the hearing the respondent had not appealed the order of the Board, and the time for taking an appeal had expired.

   
   

10. On August 16, 1985, Mrs. Sweeney entered into a contract with a company doing business as Liner Construction. The contract was for a screen enclosure around a swimming pool. Construction was started on the enclosure the following week. On August 29, 1985, after construction was begun on the enclosure, a building permit was obtained from the City of Tampa to erect the pool enclosure. Respondent applied for the permit only after he had received a Notice of Violation from the city. Respondent had to pay a double fee because he did not timely apply for the permit. The only inspection required for a screened enclosure is a final inspection; there are no interim inspections. However, due to a dispute over payments that were to be made by the Sweeneys, respondent did not complete the construction of the enclosure and, therefore, did not call for the final inspection.

    
    

11. Section 45-1 of the City of Tampa Code adopts the Standard Building Code promulgated by the Southern Building Code Congress International, Inc. Section 105.1(a) of the Standard Building Code provides as follows:

    
    

    1. Any ... contractor who desires to construct, enlarge, alter, repair, move, demolish, or change the

       occupancy of a building or structure

       ... shall first make application to the Building Official and obtain the required permit therefore.

       
       

       Section 106.1(a) provides as follows:

       
       

       A person, firm or corporation shall not erect, construct, enlarge, alter, repair, move, improve, remove, convert or demolish any building or structure in the applicable jurisdiction... without first obtaining a separate building permit for such building or structure from the Building Official.

       
       

12. The respondent has taken steps to correct the problems involved in the cases brought before the Hillsborough County Board. At the time of the hearing, respondent had called for final inspections on all the projects; however, the final inspections had not been performed on all of the projects. Respondent was previously disciplined by the Construction Industry Licensing Board in 1979.

    
    

    CONCLUSIONS OF LAW

    
    

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

    
    

    Section 489.129(1), Florida Statutes, provides in pertinent part as follows:

    
    

    (1) The Board may revoke, suspend, or deny the issuance or renewal of the certificate or registration of a contractor and impose an administrative fine not to exceed

    $5,000, place a contractor on probation, or reprimand or censure a contractor if the contractor... is found guilty of any of the following acts:

    (d) willful or deliberate disregard and violation of the applicable building codes or laws of the state or of any municipalities or counties thereof.

    (i) disciplinary action by any municipality or county, which action shall be reviewed by the state board before the state board takes any disciplinary action of its own.

    (m) upon proof that the licensee is guilty of fraud or deceit or of gross negligence, incompetency, or misconduct in the practice of contracting.

14. In count one of the complaint respondent was charged with violating section 489.129(1)(i), based on the disciplinary action taken by the Hillsborough County Building Board of Adjustment, Appeals, and Examiners on September 30, 1986. The evidence presented at the hearing established that respondent was charged with several violations of the Hillsborough County Building Code, that he was provided notice of the alleged violations, that he was provided notice of the hearing on the alleged violations, that he attended the hearing and did not dispute the allegations, that an order was entered by the Hillsborough County Board revoking respondent's Hillsborough County license and his permitting privileges in Hillsborough County, and that respondent was advised of his right to appeal the decision and did not do so. Therefore, respondent is guilty of violating section 489.129(1)(i), Florida Statutes, as alleged in count one of the administrative complaint.

    
    

15. The evidence presented established that respondent failed to obtain a City of Tampa permit to construct the screen enclosure for the Sweeneys prior to beginning construction on the enclosure. Although respondent subsequently obtained a permit, respondent obtained the permit only after the City of Tampa posted a Notice of Violation at the job. The City of Tampa Code requires that a building permit be obtained prior to construction. Therefore respondent is guilty of violating section 489.129(1)(d), Florida Statutes, by willfully violating the City of Tampa Code.

    
    

16. Count two of the complaint also charged respondent with violating Section 489.129(1)(m), Florida Statutes. However, there was no evidence presented that respondent was guilty of gross negligence, incompetence, misconduct, fraud, or deceit in the practice of contracting. The failure to timely obtain a building permit required by a local building code, standing alone, does not automatically constitute a violation of Section 489.129(1)(m), Florida Statutes, and there was no other evidence of misconduct presented in relation to the Sweeney project.

RECOMMENDATION

Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Construction Industry Licensing Board enter a final

order finding respondent guilty of those acts set forth in subsections 489.129(1)(d) and (i), Florida Statutes, as alleged in the administrative complaint, finding respondent not guilty of the acts set forth in Section 489.129(1)(m), Florida Statutes, suspending respondent's license for a period of one year, with the provision that at any time after two months from the date of entry of the final order, the suspension of respondent's license shall be stayed upon proof by respondent that his Hillsborough County license has been reinstated.

DONE and ORDERED this 6th day of May, 1987, in Tallahassee, Florida.

DIANE A. GRUBBS

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 6th day of May, 1987.

COPIES FURNISHED:

W. Douglas Beason, Esquire Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32399-0750

Francis M. Liner Post Office Box 2016 Lutz, Florida 33549

Joseph A. Sole, Esquire General Counsel

Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32399-0750

Fred Seely, Executive Director DPR, Construction Industry Licensing Board

Post Office Box 2 Jacksonville, Florida 32201

Robert A. Mora, Esquire Barnett Plaza, Suite 1870

101 East Kennedy Blvd. Tampa, Florida 33602-5133

Docket for Case No: 87-000159

Orders for Case No: 87-000159