Judges: ROBERT E. MEALE
Agency: Department of Business and Professional Regulation
Latest Update: May 20, 1988
Summary: $2500 fine for contractor's deliberate disregard of local building code by proceeding without required building permit.
88-0577.PDFSTATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
DEPARTMENT OF PROFESSIONAL ) REGULATION, )
)
Petitioner, )
)
vs. ) CASE NO. 88-0577
)
PETER DETHLEFSEN, )
)
Respondent. )
)
RECOMMENDED ORDER
Pursuant to notice, final hearing in the above-styled action was held on April 7, 1988, in Orlando, Florida, before Robert E. Meale, Hearing Officer of the Division of Administrative Hearings.
The parties were represented as follows: For Petitioner: David Bryant, Esquire
Bryant, Reeves & Deer
220 East Madison Street, Suite 530 Tampa, Florida 33602
For Respondent: none
BACKGROUND
On November 30, 1987, Petitioner filed an Administrative Complaint against Respondent with respect to a contract that Respondent entered with Richard G. Rapagnani in June, 1987. The Administrative Complaint alleged that Respondent proceeded to do the work without a timely permit, either deliberately or through improper supervision, in violation of local law and section 489.129(1)(d), (m), and (j); proceeded to do the work without obtaining all required inspections, either deliberately or through improper supervision, in violation of local law and Section 489.129(1)(d), (m), and (j); and failed to renew properly his license in violation of Sections 489.129(1)(j) and 489.115(3).
On January 11, 1988, Respondent filed an Election of Rights disputing the factual allegations and requesting a formal hearing.
At the hearing, Petitioner called four witnesses and offered into evidence seven exhibits. All exhibits were admitted into evidence. Respondent did not appear at the hearing.
The transcript was filed on May 4, 1988. Petitioner filed a proposed recommended order, All of Petitioner's proposed findings are adopted.
FINDINGS OF FACT
Respondent has been a certified building contractor in the State of Florida. He held license number CB C033166. The license was first issued on March 7, 1985. As of March 31, 1988, Respondent had not renewed the license, which expired on June 30, 1987.
Respondent is not and has never been certified as a contractor with the Orange County Building Department.
On June 18, 1987, Respondent and Richard G. Rapagnani entered into a contract for Respondent to add a screen porch onto an existing slab at 8763 Belter Drive, Orlando, Orange County, Florida, which was Mr. Rapagnani's residence. The total contract price was $4013. The contract price was payable
$1500 down, $1500 due upon completion of framing, and the balance due in two payments with the final payment due upon completion.
Prior to obtaining the contract, Respondent assured Mr. Rapagnani that Respondent would take care of obtaining the necessary building permits for the job and that the job would be of high quality.
Respondent began the work without obtaining the necessary building permits. He never obtained any permit or any inspection for the job.
In performing the work, Respondent removed part of the existing roof. He placed a plastic sheet over the open area, but failed to affix the plastic so as to prevent rain from penetrating the roof, ceiling, and walls.
After installing some posts and rafters, Respondent left the job. When asked numerous times by Mr. Rapagnani to return, Respondent offered various excuses. Respondent claimed that he needed more money and suggested that Mr. Rapagnani purchase some of the necessary materials directly from the suppliers.
On July 10, 1987, Mr. Rapagnani paid Respondent $1000. Respondent in turn promised to work on July 17 and 18 with materials that he had recently purchased. However, when Respondent failed to show on July 17, Mr. Rapagnani called him and learned that he had no money left and no materials.
Mr. Rapagnani then purchased shingles and skylights, and Respondent returned on July 18 to install them. He never completed the installation of these items, and the shingles and skylights that he did install leaked badly.
Over a period of two months, Mr. Rapagnani called Respondent at least
50 to 60 times to request him to finish the job. Mr. Rapagnani paid Respondent a total of $2700 and paid an additional $789 for shingles, skylights, and other materials called for in the contract. In mid-August, Mr. Rapagnani fired Respondent.
After hiring another contractor about six months later, Mr. Rapagnani was forced to spend approximately $3000 more to complete the work that Respondent had contracted to do.
When the new contractor viewed Respondent's roofing job, the contractor determined that the roof was about to fall down due to faulty workmanship. Respondent had failed to secure the roof to the house. It took two to two and one-half days to correct the problem.
While on the job, Respondent caused damage to the house and other property of Mr. Rapagnani. He damaged a window screen adjacent to the work area. He punched a hole through the drywall into the living room. His work on the roof led to water leakage into the bedroom. He dropped shingles onto Mr. Rapagnani's boat, thereby damaging it. He never fixed any of this damage.
On October 27, 1987, the Orange County Building Department issued a Notice of Code Violation to Mr. Rapagnani listing 21 violations of the applicable code provisions. All of these violations, including the failure to obtain the necessary permits, were attributable to Respondent. Several of the violations pertained to work affecting the structural integrity of the roof and screen porch.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the parties and the subject matter. Section 120.57(1), Florida Statutes.
Petitioner has jurisdiction over the disciplining of licenses of certified building contractors. Section 489.129, Florida Statutes.
Discipline against a license may be imposed if a contractor willfully or deliberately disregards and violates any applicable building codes or laws of the state or any political subdivision thereof. Section 489.129(1)(d), Florida Statutes.
Discipline against a license may be imposed if a contractor is guilty of fraud or deceit or gross negligence, incompetency, or misconduct in the practice of contracting. Section 489.129(1)(m), Florida Statutes.
Discipline against a license may be imposed if a contractor fails in any material respect to comply with the provisions of Chapter 489, Part I. Section 489.129(1)(j), Florida Statutes.
A license must be renewed every two years. Section 489.115(3), Florida Statutes.
Petitioner must prove the allegations of the Administrative Complaint by clear and convincing evidence. Ferris v. Turlington, 510 So.2d 292 (Fla. 1987).
Petitioner has proven that Respondent proceeded with the Rapagnani job without a timely permit having been issued and without obtaining all required inspections. These failures were deliberate in light of all of the circumstances.
Strictly speaking, the failure to renew a license does not give rise to disciplinary action, as alleged by Paragraph 7 of the Administrative Complaint. However, this allegation was sufficient to place Respondent on notice that he had failed to comply with the provisions of Chapter 489, Part I by engaging in the contracting business after his license had expired, in violation of Section 489.127(1)(f), Florida Statutes. This is not a technical provision whose existence could come as a surprise to Respondent. To the contrary, the prohibition against contracting without a license is the most basic, widely understood provision in Chapter 489, Part I. Under the circumstances, Paragraph 7 of the Administrative Complaint adequately notified
Respondent of the nature of the charge against him, and Petitioner proved its allegations in this regard.
Rule 21E-17.001(5)(b), Florida Administrative Code, provides for a normal penalty range of a $250 to $750 fine for finishing a job without obtaining a permit.
Rule 21E-17.001(20), Florida Administrative Code, provides for a normal penalty range of a $250 to $750 fine for violating state or local law.
Rule 21E-17.001(7), Florida Administrative Code, provides for a normal penalty of a letter of guidance for contracting with a delinquent license.
Rule 21E-17.002, Florida Administrative Code, provides that unsatisfied monetary damage to the owner and uncorrected job-site violations of local building codes showing gross negligence, incompetence, or misconduct are aggravating factors to be considered in determining the proper penalty.
RECOMMENDATION
In view of the foregoing, it is hereby
RECOMMENDED that a Final Order be entered finding Respondent guilty of deliberately proceeding without a timely permit, deliberately failing to obtain a required inspection, and engaging in the contracting business with an expired license. It is recommended that the Final Order impose an administrative fine of $2500.
ENTERED this 20th day of May, 1988, in Tallahassee, Florida.
ROBERT E. MEALE
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 May, 1988.
COPIES FURNISHED:
David E. Bryant, Esquire Bryant, Reeves & Deer
220 East Madison Street Suite 530
Tampa, Florida 33602
Peter Dethlefsen 2190 Glenwood Drive
Winter Park, Florida 32792
Peter Dethlefsen 628 Lander Road
Winter Park, Florida 32792
Fred Seely Executive Director
Construction Industry Licensing 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: 88-000577
Orders for Case No: 88-000577
| Issue Date |
Document |
Summary |
|
May 20, 1988 |
Recommended Order
|
$2500 fine for contractor's deliberate disregard of local building code by proceeding without required building permit.
|
