STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF PROFESSIONAL )

REGULATION, CONSTRUCTION )

INDUSTRY LICENSING BOARD, )

)

Petitioner, )

)

vs. ) CASE NO. 87-5040

)

MICHAEL S. MULLEN, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was conducted in this case on April 13, 1988, at St. Augustine, Florida, before Michael M. Parrish, a duly designated Hearing Officer of the Division of Administrative Hearings. At the hearing the parties were represented by the following counsel:

FOR PETITIONER: John O. Williams, Esquire

Lindsey & Williams, P.A. Renaissance Square

1343 East Tennessee Street Tallahassee, Florida 32308

FOR RESPONDENT: Stephen P. Sapienza, Esquire

Post Office Box 159

Flagler Beach, Florida 32036 ISSUES AND INTRODUCTION

This is a license discipline case in which the Petitioner, by Administrative Complaint, has charged the Respondent with violations of Section 489.129(1)(d) and (m), Florida Statutes. The essence of the factual basis for the charges is an allegation that some of the Respondent's work on a residence constituted an effort at an unauthorized conversion of the unit to a two-family residence.

At the hearing the parties stipulated to some of the facts alleged in the Administrative Complaint. The Petitioner presented the testimony of one witness and offered several exhibits. The Respondent testified on his own behalf and also offered several exhibits. On April 22, 1988, a transcript of the hearing was filed with the Hearing Officer and the parties were allowed until May 2, 1988, within which to file their proposed recommended orders. Both parties filed proposed recommended orders containing proposed findings of fact and conclusions of law. All findings of fact proposed by the parties are addressed in the Appendix which is attached to this recommended order.

FINDINGS OF FACT

Based on the stipulation of the parties and on the evidence presented at the hearing, I make the following findings of fact.

1. The Respondent was issued a certified residential contractor's license to qualify Towne & County Homes, Post Office Box 11, Flagler Beach, Florida 32306, and License No. CRCO11317 was issued to qualify said entity together with License No. RG0024736.

   
   

2. The Respondent was also issued a Class B pool contractor's license, License No. CPC023590 to qualify Mullen Pools, Inc., 2100 South Flagler Avenue, Flagler Beach, Florida 32036.

   
   

3. The Respondent presently maintains three current licenses issued by the Petitioner, which are as follows:

   
   

   1. Registered General Contractor,

      License No. RG0024736

   2. Certified Residential Contractor,

      License No. CRCO11317

   3. Certified Pool Contractor, Class B, License No. CPC023590

      
      

4. On September 8, 1986, the Respondent entered into a contract with Mr. and Mrs. Richard Davis to construct a single family residence in the City of Flagler Beach, Florida. The construction site was located in an area of the city zoned for single family residences only.

   
   

5. On October 3, 1986, the Respondent submitted an application to the City of Flagler Beach to obtain a building permit, together with plans and specifications upon which a building permit was to be issued.

   
   

6. On February 18, 1987, during an inspection, the building official, Mr.

   R. A. Law, observed that the Respondent had made some changes in the construction of the residence which deviated from the plans and specifications. The specific changes noticed on this occasion were (a) some rough plumbing had been stubbed in on the first floor where none was indicated on the plans, (b) an additional door had been cut into the rear of the first floor, and (c) a door on the plans between the first and second floors had not been cut in. The building official thought that the foregoing changes constituted an effort to violate the zoning law by building a two-family residence in a one-family zone.

   Accordingly, he issued a stop work order.

   
   

7. After the stop work order of February 18, 1987, was posted, the Respondent removed the additional plumbing and installed a doorway between the first and second floors so that the residence complied with the approved plans and specifications. The building official removed the stop work order.

   
   

8. On or about March 24, 1987, the building official, Mr. R. A. Law, was back on the construction site. On this occasion he observed a double electric meter can installed on the residence. This observation caused the building official to again suspect that the Respondent was attempting to violate the zoning law by building a two-family residence in a one-family zone, because he assumed that the meter can had been added to the residence since his February inspection. Actually, the double meter can had been in place since the electrical rough in was done and was simply overlooked during the February

   inspection. The building official wrote to the Respondent advising him that it appeared that he was "installing an extra apartment on the first floor," and ordering the Respondent to remove the double electric meter can from the house. The Respondent wrote back to the building official stating, among other things, that such was not his intent and that he did not have a contract to finish the first floor of the residence.

   
   

9. No electrical service was ever installed to the first floor and, in any event, the power company would not have connected the second service without a second certificate of occupancy from the City.

   
   

10. Consistent with the Respondent's contentions that he did not intend to build a two-family residence is the fact that written across the face of the plans submitted to the city were the words "Entire first floor is future area, rough in plumbing only." The Respondent's work orders to subcontractors also support his contention that he did not intend to construct a two-family dwelling.

    
    

11. At the time of the inspections noted above, Mr. R.A. Law had only recently assumed the position of building official. There had been prior inspections by the predecessor building official at which no objection was made to the changes that Mr. Law objected to.

    
    

    CONCLUSIONS OF LAW

    
    

12. Based on the foregoing findings of fact and on the applicable legal principles, I make the following conclusions of law.

    
    

13. The Division of Administrative Hearings has jurisdiction over the subject matter of and the parties to this proceeding. Sec. 120.57(1), Fla. Stat.

    
    

14. Section 489.129(1), Florida Statutes, authorizes the Construction Industry Licensing Board to take disciplinary action against a licensee who is found to be guilty of various acts specified in the statute. Among the acts for which disciplinary action may be taken are the following:

    
    

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

    * * *

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

    
    

15. The specific factual basis charged in the Administrative Complaint consists of allegations to the effect that the Respondent was involved in the ".

    . . unauthorized conversion of the unit to a two-family residence." The evidence clearly shows, and the Respondent candidly admitted, that some details of the construction differed from the details on the plans, but those differences all appear to be innocuous and de minimis and, specifically, those differences did not constitute an effort by the Respondent to build a two-family residence in violation of the applicable zoning laws.

16. In order to prevail in a case of this nature, the Petitioner must prove the alleged misconduct by clear and convincing evidence. See Ferris v. Turlington, 510 So.2d 292 (Fla. 1987). The Petitioner has failed to meet its burden of proof in this case. There is no clear and convincing evidence that the Respondent engaged in willful or deliberate disregard and violation of the applicable building codes, nor is there clear and convincing evidence that the Respondent is guilty of fraud, deceit, gross negligence, incompetency, or misconduct in the practice of contracting.

RECOMMENDATION

For all of the foregoing reasons, it is recommended that the Construction Industry Licensing Board enter a final order in this case dismissing all charges against the Respondent.

DONE AND ENTERED this 18th day of May, 1988, at Tallahassee, Florida.

MICHAEL M. PARRISH, 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 18th day of May, 1988.

APPENDIX TO RECOMMENDED ORDER IN CASE NO. 87-5040

The following are my specific rulings on all proposed findings of fact submitted by all parties.

Findings proposed by the Petitioner:

All of the proposed findings of fact submitted by the Petitioner have been accepted in substance, except as specifically set forth below.

Paragraph 6: The portion of this paragraph that states or implies that there was an effort to convert a single family residence to a two-family residence is rejected as contrary to the greater weight of the evidence. (The building official suspected such an effort, but there was no such effort by the Respondent.)

Paragraph 8: The portion of this paragraph that describes the Respondent's intent is rejected as contrary to the greater weight of the evidence.

Paragraph 10: This paragraph is rejected as in part redundant and in part irrelevant, in view of the fact that the changes were minor and were not for the purpose suspected by the building official.

Findings proposed by the Respondent:

All of the proposed findings of fact submitted by the Respondent have been accepted in substance.

COPIES FURNISHED:

John O. Williams, Esquire Lindsey & Williams, P.A. Renaissance Square

1343 East Tennessee Street Tallahassee, Florida 32308

Stephen P. Sapienza, Esquire

P. O. Box 159

Flagler Beach, Florida 32036

Fred Seely, Executive Director Construction Industry Licensing Board Post Office Box 2

Jacksonville, Florida 32201

William O'Neil, General Counsel Department of Professional

Regulation

130 North Monroe Street Tallahassee, Florida 32399-0750

Docket for Case No: 87-005040

Orders for Case No: 87-005040