STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF PROFESSIONAL )

REGULATION, CONSTRUCTION )

INDUSTRY LICENSING BOARD, )

)

Petitioner, )

)

vs. ) CASE NO. 88-1772

)

JOHN O. GONZALEZ, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, William J. Kendrick, held a public hearing in the above-styled case on July 14, 1988, in Miami, Florida.

APPEARANCES

For Petitioner: Belinda H. Miller, Esquire

Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32399-0750

For Respondent: No appearance

PRELIMINARY STATEMENT

By administrative complaint, dated November 2, 1987, petitioner charged that respondent, a registered general contractor, violated existing law by undertaking work without a required permit and by proceeding without all required inspections, and by failing to update his address with the Construction Industry Licensing Board.

At hearing, petitioner called Selma Roberts as a witness, and its exhibits 1-3 were received into evidence. Respondent did not appear for the hearing, and no proof was offered on his behalf.

After the record had been closed and the court reporter dismissed, the respondent appeared and was allowed to address the Hearing Officer. At that time, respondent was advised that if he wished to address any matter raised at the hearing he should do so in writing within ten days of the date of hearing. Respondent availed himself of such opportunity, and his letter has, without objection, been received in evidence as respondent's exhibit 1.

All parties were granted ten days from the date of hearing to file proposed findings of fact. Petitioner elected to file such proposals, and they have been addressed in the appendix to this recommended order.

FINDINGS OF FACT

1. From May 1, 1985, through June 30, 1987, Respondent, John Gonzalez, was a registered general contractor and qualifying agent for Le-Go Developers, Inc., license-number RG-A02757.

   
   

2. On his application for qualification of Le-Go Developers, Inc., respondent was required to list his individual address and the address of the business entity. To this end, respondent provided an individual address of 8435 Crespi Boulevard, Miami Beach, Florida, and a business address of Le-Go Developers, Inc., of 9840 S.W. 81st Street, Miami, Florida.

   
   

3. On March 25, 1986, Ms. Selma Roberts contracted, through respondent, with Le-Go Developers, Inc., for certain repairs to an apartment complex owned by her, and located at 8415 Crespi Boulevard, Miami Beach, Florida. At the time, respondent was a tenant of Ms. Roberts.

   
   

4. Pursuant to the terms of the agreement, Le-Go Developers, Inc., was to repair an existing dock for $700 and paint the railings in the apartment complex for $400. Ms. Roberts paid Le-Go Developers, Inc., $1,100 in advance for the work.

   
   

5. At no time did Ms. Roberts and respondent discuss the need for a building permit to undertake the agreed upon work, and no permit was secured for the project or posted on the job site.

   
   

6. The building regulation pertinent to this case provide:

   
   

   1. PERMITS REQUIRED

      It shall be unlawful to construct, enlarge, alter, repair, move, remove or demolish any building structure, or any part thereof. . . without first having filed application and obtained a permit therefor, from the Building official....

      
      

      EXCEPTION: No permit shall be required, in this or any of the following sections, for general maintenance or repairs...the value of which does not exceed one hundred

      dollars ($100.00) in labor and material as determined by the Building official.

      
      

      1. Permits, to be issued by the Building Official, shall be required for the following:

   (a) The erection or construction of any building or

   structure, the adding to, enlarging, repairing, improving, altering, covering, or extending of any building or structure.

   
   

7. Respondent repaired the dock and painted the railings in the apartment house. The work was not, however, apparently to Ms. Roberts' satisfaction and she paid a third party $100 to correct the deficiencies she perceived.

8. While the work may not have satisfied Ms. Roberts, there is no competent proof that respondent did not comply with the terms of the agreement, that the work was not performed in a workmanlike manner, or that the work did not conform to existing building codes.

   
   

9. At some point during the spring of 1987, respondent moved from the apartment at 8415 Crespi Boulevard to a new residence, and permitted his license to lapse. Respondent did not notify petitioner of his new residence address until he applied to reinstate his license in April 1988, as discussed infra.

   
   

10. The petitioner's records demonstrate that respondent's license was on a delinquent status for non-renewal from July 1, 1987, until his application to change the status of his license and reinstate his license was approved May 23, 1988. In his application, dated April 4, 1988, respondent listed his residence address as 8440 Byron Avenue, Miami, Florida.

    
    

    CONCLUSIONS OF LAW

    
    

11. The Division of Administrative Hearings has jurisdiction over the parties to, and the subject matter of, these proceedings.

    
    

12. Petitioner charges that respondent violated the provisions of Section 489.l29(1)(d) and (m), Florida Statutes, when he undertook the subject work without a building permit having been first obtained and by proceeding without all required inspections. While the proof demonstrated that respondent did undertake the work without a building permit, there was no proof offered that any of the work required inspection.

    
    

13. Section 489.129(1), Florida Statutes, permits the Construction Industry Licensing Board (Board) to discipline a contractor where he or the business entity for which he is the qualifying agent has been found 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.

    * * *

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

    
    

14. Pursuant to law, respondent is charged with the responsibility of complying with applicable building codes within the State of Florida. His failure to assure that a building permit had been obtained for the project prior to undertaking the work as required by the applicable building code constitutes a deliberate disregard and violation of that law. Consequently, the proof demonstrates that respondent violated the provisions of section 489.129(1)(d). Such proof is, however, insufficient to demonstrate a violation of section 894.129(1)(m).

    
    

15. Petitioner has adopted by rule certain disciplinary guidelines for violations of section 489.129. Pertinent to this case that rule provides:

    
    

    21E-17.001 Normal Penalty Ranges.

    The following guidelines shall be used

    in disciplinary cases, absent aggravating or mitigating circumstances and subject to the other provisions of this Chapter.

    * * *

    (5) 489.129(1)(d): Permit

    violations.

    * * *

    (b) Job finished without a permit having been pulled, or no permit until caught after job, or late permit during job resulting in missed inspection or inspections. First violation, $250 to

    $750 fine; repeat violation, $1,000 to

    $2,000 fine.

    
    

16. Considering the fact that this was respondent's first violation of section 489.129(1)(d), together with the fact that no damage to the customer was demonstrated by respondent's failure to obtain the permit or any actual job-site violations of building codes demonstrated, an appropriate penalty is found to be

    $250.00.

    
    

17. Respondent's failure to advise the Board of his new residence address within 45 days after such change, constitutes a violation of Rule 21E-15.004, Florida Administrative Code. Under the circumstances of this case, an appropriate penalty for such violation is a reprimand.

RECOMMENDATION

Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that a final order be entered imposing a reprimand and

administrative fine in the sum of $250 against respondent.

DONE AND ENTERED in Tallahassee, Leon County, Florida, this 15th day of August, 1988.

WILLIAM J. KENDRICK

Hearing Officer

Division of Administrative Hearings The Oakland Building

2009 Apalachee Parkway

Tallahassee, Florida 32399-1050

Filed with the Clerk of the Division of Administrative Hearings this 15th day of August, 1988.

APPENDIX

Petitioner's proposed findings of fact are addressed as follows:

1. Addressed in paragraph 3.

2 & 4. Addressed in paragraph 4.

3. To the extent pertinent, addressed in paragraph 1. 5-7. Addressed in paragraphs 7 and 8.

8-9. Addressed in paragraph 5 and paragraph 2 of the Conclusions of Law.

10. Addressed in paragraph 9.

COPIES FURNISHED:

Belinda H. Miller, Esquire Department of Professional

Regulation

130 North Monroe Street Tallahassee, Florida 32399-0750

Mr. John Gonzalez 8440 Byron Avenue, #1

Miami, Florida 33167

Fred Seely, Executive Director Department of Professional

Regulation

Construction Industry Licensing Board Post Office Box 2

Jacksonville, Florida 32201

William O'Neil, Esquire General Counsel

Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32399-0750

Docket for Case No: 88-001772

Orders for Case No: 88-001772