STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

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

)

Petitioner, )

)

vs. ) CASE NO. 87-2699

)

STUART W. STRATTON, )

)

Respondent. )

)

RECOMMENDED ORDER

This matter came on for hearing in Jacksonville, Florida, before Robert T. Benton, II, Hearing Officer of the Division of Administrative Hearings on October 29, 1987. Respondent's post-hearing "Response to the above Administration Complaint and Hearing" has been taken into consideration in preparing this recommended order as has been petitioner's proposed recommended order. Petitioner's proposed findings of fact are addressed by number in the attached appendix.

Respondent appeared pro se.

Petitioner was David L. Swanson, Esquire represented by 130 North Monroe Street

counsel: Tallahassee, Florida 32399-0750

By administrative complaint filed May 19, 1987, petitioner alleged that respondent "[a]t all times relevant ... licensed by [petitioner] ... as a certified residential contractor ... did, through the contracting business Respondent was then associated with and responsible for in his capacity as a licensed contractor, contract with Mr. & Mrs. Aaron Cobb ... on or about: 8-86" to renovate the Cobbs' house in Duval County for $18,600; that respondent "began work on said job without obtaining or assuming that someone else had obtained, a permit for said work, from the local building department, nor was there a permit posted on the site when Respondent's business began said job, all in wilful violation of local law"; that respondent "failed to properly obtain one or more required inspections of said job, by the local building department, in wilful violation of local law"; and that, alternatively, failure to obtain and post the required permit and to secure required inspection(s) was "the result of Respondent's failure to competently supervise the activities of said contracting business," all in violation of Section 489.105(4), 489.119, and 489.129(1)(d),

1. and (j), Florida Statutes.

   
   

   ISSUE

   
   

   Whether petitioner should take disciplinary action against respondent for the reason alleged in the administrative complaint?

   FINDINGS OF FACT

   
   

   1. Respondent acknowledges the accuracy of the allegations in the first seven paragraphs of the administrative complaint, including the allegation that he holds a certified residential contractor's license, No. CR C027268. He has been licensed in Florida continuously since October of 1983. Petitioner's Exhibit No. 1.

      
      

   2. On August 14, 1986, respondent Stratton, doing business as Stratton Construction Company, executed a written contract with Aaron Lee and Valerie Patrice Cobb to renovate their home at 5017 Pearl Street in Jacksonville, Florida. He had actually begun work nine days earlier.

      
      

   3. The contract contemplated installation of a pier under an unsupported sill end, replacement of 17 windows and two doors, hanging a screen door and a storm door, shortening and capping the chimney, adding a roof over the front stoop, reshingling the entire roof, painting the outside of the house, and putting hose bibbs in the front and the rear of the house.

      
      

   4. In addition, the contract called for extensive work inside the house, replacement of sheetrock, installation of insulation, congoleum, carpeting, paneling, cabinets, new kitchen and bedroom appliances, a new central heating system, and numerous other improvements and repairs. The contract price totalled $18,600, including $2,071 for a utility room. ("Remove back porch and drop flooring to allow enough height to construct 8 foot by 8 foot utility room

      ... inside walls unfinished ...") Petitioner's Exhibit No. 1. Exclusive of plumbing, electrical, heating, and the utility room, the value of the repairs and renovations exceeded $200.00.

      
      

   5. As "Stratton Const." respondent contracted with Williams Plumbing Co., Inc. (Williams) on September 8, 1986, to re-pipe, install a working machine drain and furnish a water closet. Respondent's Exhibit No. 3. Respondent or Williams on his behalf obtained a plumbing permit from the City of Jacksonville, No. 25997, at or about the time Williams began work, but Williams "left town" (T.43) before the project was inspected by the City.

      
      

   6. On October 2, 1986, respondent contracted with Wayne Conn Plumbing (Conn) to do additional plumbing work. In order to obtain a plumbing permit for the additional work, respondent cancelled the first permit. (T.34) The same day he signed the contract with Conn, respondent obtained a second plumbing permit, No. 28215. Respondent's Exhibit No. 1. Conn finished the plumbing work, and it passed inspection by the City.

      
      

   7. Earlier, on September 5, 1986, respondent or a subcontractor obtained a City permit authorizing electrical work at 5017 Pearl Street. On October 8, 1986, respondent or a subcontractor obtained a mechanical permit for the house's new heating system. In due course, the work authorized by these permits passed City inspections. Petitioner's Exhibit No. 7.

      
      

   8. Before he began work on the Cobb's house, Mr. Stratton had only built new homes in Florida. He was unaware of any requirement to obtain a permit to effect repairs to the interior of a house other than those he did in fact obtain. He was aware, however, of the need to secure a building permit for construction of the utility room, involving, as it did, alterations to the foundation. Nevertheless, he only applied for this permit on June 11, 1987, long after the work had been completed, and after he had become embroiled in a dispute with the Cobbs.

   9. Jacksonville's Building Code, Part 4, makes it unlawful to begin work

      
      

      to contract, enlarge, alter, repair, move, remove or demolish a building or structure, or a part thereof ... without having first filed an application with and obtained a permit therefor from the Building official, except that, for general maintenance or repairs, not involving replacement of components specifically requiring permits, which do not change the occupancy or affect the electrical, plumbing or mechanical systems, the value of which does not exceed two hundred dollars ... no permit shall be required ... Petitioner's Exhibit

      No. 4, p. 5.

      
      

      In beginning work without a permit to remove the back porch or to replace it with a utility room or to effect general repairs the value of which exceeded two hundred dollars, respondent violated applicable provisions of a local building code.

      
      

   10. The evidence suggested that the requirement that contractors obtain permits to effect general repairs with a value in excess of two hundred dollars is more honored in the breach than in the observance. In fact, respondent testified that somebody told him no permit is needed "if you don't change the size of the building," (T.46) i.e., alter the foundation.

       
       

   11. The Building Code also calls for mandatory inspections of foundations and framing as they are completed, but a building inspector testified that inspection of pre-formed concrete piers like those on which the utility room stands would have been foregone.

       
       

   12. Because the addition stood on (new) piers and because its interior walls remained unfinished, it was possible for the City to inspect both the foundation and the framing, even after the work was finished. John Carlton Sturdevant, a field inspector for Jacksonville's Building and Zoning Department, saw nothing wrong with the framing, nor was there evidence of any problem with the foundation.

       
       

       CONCLUSIONS OF LAW

       
       

   13. When petitioner forwarded respondent's request for hearing to the Division of Administrative Hearings, in accordance with section 120.57(1)(b)3, Florida Statutes (1986 Supp.), the Division assumed "jurisdiction over the formal proceeding." Id.

       
       

   14. The Construction Industry Licensing Board is authorized to "revoke, [or] suspend ... 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" Section 489.129(1), Florida Statutes (1985), if it can be shown that the contractor or a business entity for which the contractor is a qualifying agent has been guilty of

       (d) Willful or deliberate disregard and violation of the applicable building

       codes or laws of the state or of any municipalities or counties thereof.

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

       (m) ... fraud or deceit or of gross negligence, incompetency, or misconduct in the practice of contracting.

       
       

       Section 489.129(1), Florida Statutes (1985)

       
       

       Although the evidence was not clear on whether respondent was the "qualifying agent" for the company that bore his name, respondent's personal involvement in every pertinent phase of the Cobbs' renovation project was clearly and convincingly shown.

       
       

   15. License revocation proceedings have been said to be "'penal' in nature." State ex rel. Vining v. Florida Real Estate Commission, 281 So.2d 487,

       491 (Fla. 1973); Kozerowitz v. Florida Real Estate Commission, 290 So.2d 391 (Fla. 1974); Bach v. Florida State Board of Dentistry, 378 So.2d 34 (Fla. 1st DCA 1979)(reh. den. 1980). Strict procedural protections apply, and the prosecuting agency's burden is to prove its case clearly and convincingly. Ferris v. Turlington, 510 So.2d 292 (Fla. 1987). See Addington v. Texas, 441

       U.S. 426 (1979); Ferris v. Austin, 487 So.2d 1163 (Fla. 5th DCA 1986); Anheuser- Busch, Inc. v. Department of Business Regulation, 393 So.2d 1177 (Fla. 1st DCA 1981); Walker v. State Board of Optometry, 322 So.2d 612 (Fla. 3rd DCA 1975); Reid v. Florida Real Estate Commission, 188 So.2d 846, 851 (Fla. 2d DCA 1966). A licensee's breach of duty justifies revocation only if the duty has a "substantial basis," Bowling v. Department of Insurance, 394 So.2d 165, 173 (Fla. 1st DCA 1981) in the evidence, unless applicable statutes and rules create a clear duty, which the evidence shows has been breached.

       
       

   16. Here petitioner met its burden to show that respondent failed to apply for the building permit required for addition of the utility room to the Cobbs' house until after the work was completed, in deliberate disregard of the applicable building code, in violation of Section 489.129(1), Florida Statutes (1985). The delay in applying for the permit occasioned a delay in securing required inspection but did not otherwise impede inspection. The evidence also showed that a building permit for general repairs was required since their value, exclusive of plumbing, electrical and hearing repairs and installations exceeded $200.00; and that respondent failed to obtain such a permit. But the evidence fell short of a clear and convincing showing that this failure amounted to deliberate or grossly negligent disregard of the building code.

It is, accordingly, RECOMMENDED:

That petitioner levy an administrative fine against respondent in the amount of $100.00.

DONE and ENTERED this 11th day of December, 1987, in Tallahassee, Florida.

ROBERT T. BENTON, II

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 11th day of December, 1987.

APPENDIX TO RECOMMENDED ORDER, CASE NO. 87-2699

Petitioner's proposed findings of fact Nos. 1, 2, 4, 5, 6, 7, 8, 9, 10, 11,

13, 14, 18, 19, 20, 21 (before the hearing), 22, 23, 24 and 25 have been adopted, in substance, insofar as material.

Petitioner's proposed findings of fact Nos. 3 and 15 have been adopted, in substance, insofar as material, except that addition of the utility room entailed more than enclosing the porch.

Petitioner's proposed finding of fact No. 12 has not been adopted. Mr. Sturdevant testified that a single inspection after the framing was finished would suffice.

With respect to petitioner's proposed finding of fact No. 16, the only permits obtained before June 11, 1987 were mechanical, electrical and plumbing permits.

With respect to petitioner's proposed finding of fact No. 17, Mr.

Sturdevant had inspected in fact.

Petitioner's proposed finding of fact No. 26 has been rejected.

COPIES FURNISHED:

G. Vincent Soto, Esquire Stuart W. Stratton Department of Professional 3365 Silver Palm Drive

Regulation Jacksonville, Florida 32250

130 North Monroe Street Tallahassee, Florida 32399-0750

Mr. Fred Seely

William O'Neil Executive Director

General Counsel Post Office Box 2 Department of Professional Jacksonville, Florida 32201

Regulation

130 N. Monroe Street Tallahassee, Florida 32399-0750

Docket for Case No: 87-002699

Orders for Case No: 87-002699