STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

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

)

Petitioner, )

)

vs. ) CASE NO. 87-2501

)

EDWARD J. McLOUGHLIN, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to written notice a formal hearing was held in this case before Larry J. Sartin, a duly designated Hearing Officer of the Division of Administrative Hearings, on July 1, 1988, in Jacksonville, Florida.

APPEARANCES

For Petitioner: Ray Shope, Esquire

Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32399-0750

For Respondent: Lester Mokofka, Esquire

222 East Forsyth Street Jacksonville, Florida 32202

INTRODUCTION

The Department of Professional Regulation (hereinafter referred to as the "Department"), filed an Administrative Complaint against the Respondent, Edward

1. McLoughlin, before the Construction Industry Licensing Board (hereinafter referred to as the "Board"), on approximately May 6, 1987. Mr. McLoughlin executed an Election of Rights on May 27, 1987, disputing the allegations of facts contained in the Administrative Complaint and requesting an administrative hearing. By letter dated June 6, 1987, the Department referred the request for administrative hearing to the Division of Administrative Hearings.

   
   

   At the formal hearing the Department presented the testimony of Richard D. Oldham, Timothy L. McCaulley and Debra Clanton. Mr. Oldham was accepted an as expert in construction. The Department also presented 4 exhibits which were marked as "Petitioner's" exhibits and accepted into evidence. Petitioner's exhibit 3 is hearsay.

   
   

   Mr. McLoughlin testified on his own behalf. No exhibits were offered by Mr. McLoughlin.

   At the request of the Department, official recognition of Chapter 489, Florida Statutes, was taken.

   
   

   The parties have filed proposed recommended orders containing proposed findings of fact. A ruling on each proposed finding of fact has been made either directly or indirectly in this Recommended Order or the proposed finding of fact has been accepted or rejected in the Appendix which is attached hereto.

   
   

   ISSUE

   
   

   Whether Edward J. McLoughlin's license as a registered general contractor in the State of Florida should be disciplined for alleged violations of Chapter 489, Florida Statutes, as set forth in an Administrative Complaint filed May 6, 1987?

   
   

   FINDINGS OF FACT

   
   

   1. Edward J. McLoughlin is, and was at all times material to this proceeding, licensed in the State of Florida as a registered general contractor. Mr. McLoughlin's license number is RG 0023302.

      
      

   2. Mr. McLoughlin's registered general contractor's license has been delinquent for failure to renew since 1983.

      
      

   3. Mr. McLoughlin was not licensed as an electrical contractor or as a plumbing contractor in the State of Florida during 1986.

      
      

   4. Joyce Carmichael, Mr. McLoughlin's former wife, and Richard D. Oldham, jointly own a four bedroom house. Ms. Carmichael and Mr. Oldham decided to convert the house to a duplex.

      
      

   5. In June and July of 1986, Ms. Carmichael contacted Mr. McLoughlin and requested that he perform the remodeling work necessary to convert the house to a duplex for her and Mr. Oldham.

      
      

   6. Initially Mr. McLoughlin declined to do the work. In July, 1986, however, Mr. McLoughlin agreed to perform the work.

      
      

   7. Mr. McLoughlin indicated that he would perform the work in return for an hourly fee. Ultimately, however, Mr. McLoughlin agreed to perform the work for a lump-sum of $2,000.00.

      
      

   8. The renovation work on the house was begun by Mr. McLoughlin in July, 1986.

      
      

   9. Mr. McLoughlin provided the tools and labor necessary to renovate the house and Ms. Carmichael and Mr. Oldham paid for supplies and materials. Ms. Carmichael purchased the supplies and materials which Mr. McLoughlin told her to purchase.

      
      

   10. During the course of the renovations, Mr. McLoughlin performed electrical work and plumbing work for which an electrical license and a plumbing license were required.

       
       

   11. Mr. McLoughlin stopped performing work on the house in September, 1986, because he was unwilling to perform all the electrical work necessary to complete the renovations.

   12. Mr. McLoughlin was paid $1,000.00 for the work that he performed for Ms. Carmichael and Mr. Oldham.

       
       

   13. Although Mr. Oldham was a licensed contractor in 1986, he did not agree to act as the contractor for the renovations on the house and Mr. McLoughlin did not work at Mr. Oldham's direction and under Mr. Oldham's supervision.

       
       

       CONCLUSIONS OF LAW

       
       

   14. The Division of Administrative Hearings has jurisdiction of the parties to and the subject matter of this proceeding. Section 120.57(1), Florida Statutes (1987).

       
       

   15. This proceeding is penal in nature. Bach v. Florida Board of Dentistry, 378 So.2d 34 (Fla. 1st DCA 1980). Because the Respondent's license is at stake, the evidence to support the charges against the Respondent must be clear and convincing. Ferris v. Turlington, 510 So.2d 292 (Fla. 1987).

       
       

   16. The burden of proof is on the party asserting the affirmative of an issue in an administrative hearing. Balino v. Department of Health and Rehabilitative Services, 348 So.2d 349 (Fla. 1st DCA 1977). The burden of proof in this case is on the Department. See Department of Transportation v. J.W.C. Company, Inc., 396 So.2d 778 (Fla. 1st DCA 1981).

       
       

   17. Section 489.129(1), Florida Statutes, authorizes the Construction Industry Licensing Board to "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 acts specified in Section 489.129(1)(a)-(m), Florida Statutes.

       
       

   18. In the Administrative Complaint filed against Mr. McLoughlin in this case, Mr. McLoughlin has been charged with violating the following prohibited act of Section 489.129(1), Florida Statutes:

       
       

       (j) Failure in any material respect to comply with the provisions of this act.

       
       

   19. The particular provisions of Chapter 489, Florida Statutes, which the Department has alleged that Mr. McLoughlin has violated are Sections 489.115(3) and 489.117(2), Florida Statutes.

       
       

   20. Section 489.115(3), Florida Statutes, provides, in pertinent part, the following:

       
       

       (3)(a) Each licensee who desires to continue as a licensee shall renew his certificate as required by local law or registration every 2 years...

       
       

   21. The evidence in this case proved that Mr. McLoughlin's license as a contractor in the State of Florida has not been renewed since 1983. Despite this fact, Mr. McLoughlin performed work as a contractor when he renovated the house owned by Ms. Carmichael and Mr. Oldham. Mr. McLoughlin has, therefore,

       violated Section 489.115(3), Florida Statutes. This violation constitutes a material failure to comply with Chapter 489, Florida Statutes.

       
       

   22. Section 489.117(2), Florida Statutes, provides the following:

       
       

       (2) 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.

       
       

   23. The evidence in this case proved that Mr. McLoughlin performed electrical and plumbing work that he was not licensed to perform. Therefore, Mr. McLoughlin violated Section 489.117(2), Florida Statutes. This violation constitutes a material failure to comply with Chapter 489, Florida Statutes, in violation of Section 489.129(1)(j), Florida Statutes.

       
       

   24. In the proposed recommended order filed on behalf of Mr. McLoughlin, it has been argued that the only evidence presented in support of the allegations against Mr. McLoughlin in the Administrative Complaint is hearsay evidence. Although the Department did present some hearsay evidence during the formal hearing, that evidence was not relied upon in reaching the finding's of fact made in this Recommended Order. The findings of fact support the allegations of the Department's Administrative Complaint and they are not based upon hearsay evidence.

       
       

   25. Mr. McLoughlin has also argued that he did not perform the work at issue in this case as a "contractor" as defined in Section 489.105(3), Florida Statutes. It has been argued that Mr. Oldham was the contractor for the renovations and that Mr. McLoughlin merely worked under the supervision and control of Mr. Oldham. The evidence presented in this case failed to support this argument.

       
       

   26. Finally, Mr. McLoughlin has argued that Section 489.103(7), Florida Statutes, exempts contracting work performed by the owner of property from Chapter 489, Florida Statutes. The evidence in this case failed to prove that the contracting work at issue was performed by the owners of the property. Instead, the evidence proved that the contracting work was performed by Mr. McLoughlin.

       
       

   27. The Department has recommended that a fine of $1,000.00 be imposed on Mr. McLoughlin. This recommendation is not, however, consistent with the guidelines for discipline contained in Chapter 12E-17, Florida Administrative Code. Based upon these guidelines, Mr. McLoughlin should be issued a letter of reprimand and a fine of $250.00.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department issue a Final Order finding Edward J.

McLoughlin guilty of violating Section 489.129(1)(j), Florida Statutes, for

failing to comply with Sections 489.115(3) and 489.117(2), Florida Statutes

It is further

RECOMMENDED that the Department issue a letter of reprimand to Mr.

McLoughlin and require that he pay a fine of $250.00.

DONE and ENTERED this 20 day of July, 1988, in Tallahassee, Florida.

LARRY J. SARTIN

Hearing Officer

Division of Administrative Hearings The Oakland Building

2009 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 20th day of July, 1988.

APPENDIX TO RECOMMENDED ORDER, CASE NO. 87-2501

The parties have submitted proposed findings of fact. It has been noted below which proposed findings of fact have been generally-accepted and the paragraph number(s) in the Recommended Order where they have been accepted, if any. Those proposed findings of fact which have been rejected and the reason for their rejection have also been noted.

The Department's Proposed Findings of Fact

Proposed Finding Paragraph Number in Recommended Order of Fact Number of Acceptance or Reason for Rejection

2 2.

3-4 3.

5 5.

6 4 and 5.

7 7.

8-9 10.

The Respondent's Proposed Findings of Fact

Proposed Finding Paragraph Number in Recommended Order of Fact Number of Acceptance or Reason for Rejection

1 Irrelevant. There is no requirement that the "complaining witness" appear at the formal hearing.

2-4 Argument and summary of proceedings.

5-6 Argument of law.

1. Not supported by the weight of the evidence.

2. Although it is true that materials were purchased by Ms. Carmichael, the rest of this proposed finding of fact is not

supported by the weight of the evidence.

9-10 Argument of law and not supported by the weight of the evidence.

COPIES FURNISHED:

Fred Seely Executive Director

Construction Industry Licensing Board

Department of Professional Regulation

Post Office Box 2 Jacksonville, Florida 32201

General Counsel

Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32399-0750

Ray Shope, Esquire Department of Professional

Regulation

130 North Monroe Street Tallahassee, Florida 32399-0750

Lester Mokofka, Esquire

222 East Forsyth Street Jacksonville, Florida 32202

Docket for Case No: 87-002501

Orders for Case No: 87-002501