STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

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

)

Petitioner, )

)

vs ) CASE NO. 88-2551

)

STANLEY MONDS, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, William R. Cave, held a formal hearing in the above- styled case on January 17, 1989, in Macclenny, Florida.

APPEARANCES

For Petitioner: Elizabeth R. Alsobrook, Esquire

Department of Professional Regulation Northwood Centre

1940 North Monroe Street Tallahassee, Florida 32399-0750

For Respondent: Stanley Monds, Pro Se

326 West Macclenny Avenue Macclenny, Florida 32063

STATEMENT OF THE ISSUE

Whether Respondent's registered plumbing contractor's license should be revoked, suspended or otherwise disciplined under the facts and circumstances of this case.

PRELIMINARY STATEMENT

By an Administrative Complaint filed with the Division of Administrative Hearings on May 20, 1988, Petitioner seeks to revoke, suspend or otherwise discipline Respondent's registered plumbing contractor's license. As grounds therefor, it is alleged that Respondent in undertaking a certain contract: (a) began work on the contract without a permit being timely issued, violating local law, either deliberately or through improper supervision, in violation of Section 489.105(4), Section 489.119 and Section 489.129(1)(d)(j)(m), Florida Statute; (b) failed to obtain the required inspections on the job, violating local law, either deliberately or through improper supervision, in violation of Section 489.105(4), Section 489.119 and Section 489.129(1)(d)(j) and (m), Florida Statutes; (c) failed to perform under the contract in a reasonably timely manner, or abandoned the job, in violation of Section 489.129(1)(k) and

(m), Florida Statutes, and; (d) failed to properly renew his license in violation of Section 489.115(3) and Section 489.129(1)(j), Florida Statutes.

In support of its charges, Petitioner presented the testimony of Charles W. Plath, Larry Pilarski, Jack Peeler, Billy Williams and Michael Stokes.

Petitioner's exhibits 1 through 6 were received into evidence.

Respondent testified on his behalf and presented the testimony of Mike Crawford. Respondent presented no other testimony or documentary evidence.

A transcript of this proceeding was not filed until May 8, 1989. The Petitioner timely filed its posthearing Proposed Findings of Fact and Conclusions of Law on in accordance with the order extending the time for filing such pleadings. Respondent did not file any posthearing Proposed Findings of Fact and Conclusions of Law. A ruling on each proposed finding of fact submitted by the Petitioner has been made as reflected in an Appendix to this Recommended Order.

FINDINGS OF FACT

Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant facts are found:

1. At all times material to this proceeding, Respondent, Stanley Monds, held a registered plumbing contractor's license number RF 0037461 which had been placed on a delinquent status for non-renewal effective July 1, 1985 and was invalid during the 1987-89 licensing period.

   
   

2. On June 19, 1987, Monds, doing business as Clay Well and Pump Service, contracted with Charles W. Plath to install a culvert for the sum of $341.25. The culvert was installed by Monds and Plath paid Monds in accordance with the contract.

   
   

3. On July 10, 1987, Monds, doing business as Clay Well and Pump Service, contracted with Plath to: (a) install a 2- inch well and a 1-Horsepower Meyers pump; (b) supply fill for septic tank pad and a culvert; (c) install septic tank and culvert; (d) install a 200 amp electrical service for mobile home and pump and; (e) tie-in the water line and electricity to the mobile home and pump. The net contract price was $6,574.00 of which Plath paid $4,295.00 in advance, leaving a balance of $2,279.00.

   
   

4. Plath's mobile home site is located in Whitehouse, Duval County, Florida.

   
   

5. There was no written or verbal agreement between Plath and Monds concerning a completion date. However, Plath had told Monds that he needed to be in the mobile home by August, 1987. Plath understood that Monds had other jobs that he was currently working on but would get to Plath as soon as possible.

   
   

6. Monds advised Plath that the necessary permits for the job would have to be applied for (pulled) by Plath. Plath did not object to this, and on June 19, 1987 applied for a mobile home move-on permit with the Duval County Building Department. The mobile home move-on permit was issued to Plath on July 6, 1987.

7. An applicant for a mobile home move-on permit must show that a septic tank permit has been issued before a mobile home move-on permit will be issued. The septic tank permit is issued through the local health department.

   
   

8. The Duval County Building Department requires the person who is issued the mobile home move-on permit to assume the responsibility for acquiring the necessary inspections, even though the work is being performed by someone other than the person to whom the permit was issued. It was Plath's responsibility to see that the necessary inspections were made, including the septic tank inspection.

   
   

9. The well and pump were installed sometime around the last of July or the first of August, 1987. Monds subcontracted the drilling of the well.

   
   

10. Although part of the work under the contract had been completed, such as the well and pump installation and part of the septic tank, Plath encountered difficulty in making contact with, and getting a response from, Monds concerning the progress of the job and a completion date. Therefore, in October, 1987 Plath decided to contract the work to someone else.

    
    

11. On October 8, 1987, Plath contracted with Wilkins & Sons Electric (Wilkins) to install: (a) the 200 Amp mobile home service pole and connect to mobile home; (b) the 220 Volt, 20 Amp circuit and connect to pump and; (c) the

    175 Watt mercury vapor light fixture. The total price of the contract was

    $850.00. However, $85.00 for a mercury vapor light fixture was not part of the original contract with Monds.

    
    

12. Wilkins applied for and was issued the required electrical permit for the Plath job on October 6, 1987. The final electrical inspection was made on October 9, 1987.

13 On October 13, 1987, Plath contracted with AA Septic Tank Service, Inc. to finish the partially completed septic tank which Monds had failed to complete for $300.00.

1. Although the septic tank permit was issued before the mobile home move-on permit was issued, there is no evidence that anyone made a septic tank inspection.

   
   

2. Although Monds was hampered by the rain during the period of time Monds worked on the Plath site, there was insufficient evidence to show that Monds was prevented by the rain from completing the work under the contract before Plath decided to contract with someone else because of the delay or that Monds advised Plath of the reason for the delay.

   
   

3. Plath did not prevent, or prohibit, Monds for completing the work under the contract.

   
   

4. Monds failed to pay Tim Prep, Inc. for 15 loads of fill ordered and used by Monds on the Plath job. As a result of Monds failure to pay for the fill, Tim Prep, Inc. filed a Notice Of Intention To Claim A Lien in the amount

   $1,181.25 against Plath's property. Monds had not paid Tim Prep, Inc. for the fill at the time of the hearing.

   
   

5. The work on the on the Plath job was completed in late October or early November, 1987.

6. Monds was still working on the Plath job as late as September 1, 1987 when Tim Prep, Inc. delivered fill to the Plath site for Monds.

   
   

7. Although Plath never paid Monds the $2,279.00 balance, Plath was required to pay other contractors $1,075.00 ($850.00 minus $85.00 plus $310.00) and will be required to pay $1,181.25 to Tim Prep, Inc. to remove the lien from his property which comes to a total of $2,256.25, leaving a balance of $22.75. This does not take into consideration any compensation for the delay suffered by Plath.

   
   

8. Although probable cause was found against Monds by the Florida Construction Industry Licensing Board (Board) on January 7, 1988 and a letter of guidance issued in apparently another matter, there was no evidence concerning the violations or the charges involved.

   
   

   CONCLUSIONS OF LAW

   
   

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

   
   

10. Section 489.129(1), Florida Statutes, empowers the Board to revoke, suspend or otherwise discipline the license of a registered plumbing contractor found guilty of any one of the acts enumerated in Section 489.129(1)(a-m), Florida Statutes.

    
    

11. Monds is charged with the violation of Section 489.115(3)(a), Section 489.119(3), and Section 489.129(1)(d),(j),(k) and (m), Florida Statutes.

    
    

    Section 489.115(3)(a), Florida Statutes, provides in pertinent part as follows:

    
    

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

    
    

    Section 489.119(3), Florida Statutes, requires, among other things, that the qualifying agent as defined in Section 489.105(4), Florida Statutes, "...shall be certified or registered under this act in order for the business organization to be certified or registered. "

    
    

    Section 489.129(1)(d),(j),(k) and (m), Florida Statutes, provides as follows:

    
    

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

    * * *

    1. Failure in any material respect to comply with the provisions of this act.

       * * *

    2. Abandonment of a construction project in which the contractor is engaged or under con- tract as a contractor. A project is to be considered abandoned after 90 days if the contractor terminates the project without

    notification to the prospective owner and without just cause.

    * * *

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

    
    

12. In disciplinary proceedings, the burden is upon the regulatory agency to establish facts upon which its allegations of misconduct are based. Balino

1. Department of Health and Rehabilitative Services, 348 So.2d 349 (1 DCA Fla. 1977). Monds' failure to renew his registered plumbing contractor's license is a violation of Section 489.115(3)(a) and 489.119(3), Florida Statutes, and the Petitioner has sustained its burden in that regard. Additionally, Monds' action, or lack of action, in performing under the contract constitutes "misconduct in the practice of contracting" and a violation of Section 489.129(1)(m), Florida Statutes, and thereby a violation of Section 489.129(1)(j), Florida Statutes. The Petitioner has sustained its burden of proof in this regard also. However, Petitioner has failed to sustain its burden of proof to show a violation of Section 489.129(1)(d) and (k), Florida Statutes. Ferris v. Turlington, 510 So.2d 392 (Fla. 1987); Department of Professional Regulation v. Dory, 9 FALR 394 (Final Order entered November 18, 1986).

   
   

   RECOMMENDATION

   
   

   Having considered the foregoing Findings of Fact and Conclusions of Law, the evidence of record, the candor and demeanor of the witnesses and Rule 21E- 17, Florida Administrative Code, it is, therefore,

   
   

   RECOMMENDED that the Board enter a Final Order finding Respondent, Stanley Monds guilty of violating Section 489.115(3)(a), Section 489.119(3), and Section 489.129(1)(j) and (m), Florida Statutes, and for such violation impose an administrative fine of $750.00. It is further RECOMMENDED that the charges alleged in the Administrative Complaint of violating Section 489.129(1)(d) and (k), Florida Statutes be DISMISSED.

   
   

   DONE AND ENTERED this 18th day of July, 1989, in Tallahassee, Leon County, Florida.

   
   

   WILLIAM R. CAVE

   Hearing Officer

   Division of Administrative Hearings The DeSoto Building

   1230 Apalachee Parkway

   Tallahassee, Florida 32399-1550

   (904) 488-9675

   
   

   Filed with the Clerk of the Division of Administrative Hearings this 18th day of July, 1989.

   APPENDIX TO RECOMMENDED ORDER, CASE NO. 89-0464

   
   

   The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on the Proposed Findings of Fact submitted by the Petitioner in this case.

   
   

   Specific Rulings on Proposed Findings of Fact Submitted by the Petitioner:

   
   

   1. Each of the following Proposed Findings of Fact are adopted in substance as modified in the Recommended Order. The number in parentheses is the Finding of Fact which so adopts the Proposed Finding of Fact: 1 & 2(1); 3(2- 5); 4 & 5(3); 6(6); 7(9); 8(10); 9(9); 10(11); 11(13); 12(18); 13(17); 14(6 & 12); 15(6 & 8); 16(12); 17(16); 18(2 & 3); 19(1).

Specific Rulings on Proposed Findings of Fact Submitted by the Respondent:

1. Respondent did not submit and posthearing proposed findings of fact.

COPIES FURNISHED:

Fred Seely, Executive Director Construction Industry Licensing Board Department of Professional Regulation Post Office Box 2

Jacksonville, Florida 32201

Kenneth Easley, Esquire General Counsel

Department of Professional Regulation Northwood Centre

1940 North Monroe Street Tallahassee, Florida 32399-0750

Elizabeth R. Alsobrook, Esquire Department of Professional Regulation

Northwood Centre 1940 N. Monroe St.

Tallahassee, Florida 32399-0750

Stanley Monds

326 West Macclenny Avenue Macclenny, Florida 32063

=================================================================

AGENCY FINAL ORDER

=================================================================

STATE OF FLORIDA DEPARTMENT OF PROFESSIONAL REGULATION CONSTRUCTION INDUSTRY LICENSING BOARD

DEPARTMENT OF PROFESSIONAL REGULATION,

Petitioner,

vs CASE NO.: 90119

DOAH CASE NO.: 88-2551

STANLEY MONDS,

LICENSE NO.: RF 0037461,

Respondent.

/

FINAL ORDER

THIS MATTER came before the Construction Industry Licensing Board pursuant to Section 120.57(1)(b)(9), Florida Statutes, on September 14, 1989, in Key West, for consideration of the Recommended Order (a copy of which is attached hereto and incorporated herein by reference) issued by the hearing officer in the above styled case. The Petitioner was represented by Ray Shope. The Respondent was neither present nor represented by counsel at the Board meeting.

Upon consideration of the hearing officer's Recommended Order, including the exceptions filed and the arguments of the parties and after a review of the complete record in this matter, the Board makes the following findings:

FINDINGS OF FACT

1. The hearing officer's findings of fact are hereby approved and adopted and incorporated herein by reference.

   
   

2. The Petitioner's exceptions to the hearing officer's findings of fact are rejected as unsupported by the record.

   
   

3. There is competent, substantial evidence to support the hearing officer's findings of fact.

CONCLUSIONS OF LAW

1. The Board has jurisdiction of this matter pursuant to the provisions of Section 120.57(1), and Chapter 489, Florida Statutes.

   
   

2. The hearing officer's conclusions of law, are hereby approved and adopted in toto and incorporated herein by reference.

   
   

3. That the Recommended Order of the Hearing Officer by accepted.

4. That the Petitioner's Exceptions be rejected in toto as unsupported by the facts found in this cause.

   
   

5. There is competent substantial evidence to support the Board's findings and conclusions.

WHEREFORE, IT IS HEREBY ORDERED AND ADJUDGED:

Respondent shall pay an administrative fine of seven hundred fifty dollars ($750) within 30 days to the Construction Industry Licensing Board.

Those charges in the Administrative Complaint issued in this cause allegeding violations of Sections 489.129(1)(d) and (k) are DISMISSED.

Pursuant to Section 120.59, Florida Statutes, the Parties are hereby notified that they may appeal this Order by filing one copy of a Notice of Appeal with the Clerk of the Department of Professional Regulation, Northwood Centre, 1940 N. Monroe Street, Tallahassee, Florida 32301, and by filing the filing fee and one copy of the Notice of Appeal with the District Court of Appeal within thirty (30) days of the effective date of this Order.

This Order shall become effective upon filing with the Clerk of the Department of Professional Regulation.

DONE AND ORDERED this 6th of November, 1989.

MIKE BLANKENSHIP, CHAIRMAN

Construction Industry Licensing Board

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a true and correct copy of the foregoing Final Order has been provided by U.S. Mail to

Stanley Monds

326 West MacClenny Ave MacClenny, Florida 32063

and by hand delivery/United States Mail to the Board Clerk, Department of Professional Regulation and its Counsel, Northwood Centre, 1940 North Monroe Street, Tallahassee, Florida 32399-0792, on or before 5:00 p.m., this 18th day of January 1990.

F I L E D

Department of Professional Regulation Florida Construction Industry Licensing Board

Board Clerk Clerk Date: January 18, 1990

Docket for Case No: 88-002551

Orders for Case No: 88-002551