STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

PINELLAS COUNTY CONSTRUCTION ) LICENSING BOARD, )

)

Petitioner, )

)

vs. ) CASE NO. 95-1486

)

BRADLEY T. BARBOUR, )

)

Respondent. )

)

RECOMMENDED ORDER

On June 7, 1995, a formal administrative hearing was held in this case. It was held before J. Lawrence Johnston, Hearing Officer, Division of Administrative Hearings, by televideo. (The hearing officer was in a specially- equipped hearing room in Tallahassee, and the other hearing participants were in a specially-equipped hearing room in Tampa, Florida. The two hearing rooms were connected by televideo.)

APPEARANCES

For Petitioner: William J. Owens, Executive Director

Pinellas County Construction Licensing Board

11701 Belcher Road, Suite 102

Largo, Florida 34643-5116 For Respondent: No Appearance

STATEMENT OF THE ISSUES

The issue in this case is whether the Pinellas County Construction Licensing Board should discipline the Respondent for alleged failure or refusal to satisfy a civil judgment in a reasonable period of time.

PRELIMINARY STATEMENT

On February 7, 1995, the Pinellas County Construction Licensing Board filed an Administrative Complaint against the Respondent (Complaint No. C94-1043).

The Respondent did not dispute his status as a licensee but disputed the charges and requested formal administrative proceedings.

On March 23, 1994, the Board referred the matter to the Division of Administrative Hearings (DOAH), where it was assigned DOAH Case No. 95-1486, assigned to a hearing officer and set for final hearing by televideo between Tampa and Tallahassee on June 7, 1995.

Neither the Respondent nor anyone on his behalf appeared at the final hearing. The Board called the complaining witness and had Petitioner's Exhibits

1 through 4 admitted in evidence. The Board chose to preserve the testimony by tape recording.

At the conclusion of the hearing, the parties were allowed ten days in which to file proposed recommended orders. The proposed findings of fact contained in the Board's proposed recommended order are accepted and incorporated. The Respondent did not file a proposed recommended order.

FINDINGS OF FACT

1. The Respondent, Bradley T. Barbour, has not disputed that he is a certified tile and marble specialty contractor, holding Pinellas County Construction Licensing Board license number C-5778.

   
   

2. The Respondent entered into a contract with Cameron Vale to tile the floor of his house. The tile job was unsatisfactory to Vale, who sued in the County Court, Pinellas County, Small Claims Division, Case No. 93-5287 SC-NCD.

   
   

3. On February 14, 1994, Vale and the Respondent entered into a Pretrial Conference Agreement. Under the Agreement, the Respondent agreed, among other things, to pay Vale $2,500, payable $200 a month beginning February 18, 1994, until paid in full.

   
   

4. Based on the Agreement, Vale and the Respondent filed a Stipulation to Stay Entry of Judgment on February 14, 1995, and two days later the court entered an Order staying entry of final judgment.

   
   

5. Contrary to the terms of the Agreement and Stipulation, the Respondent only made one payment of $100. On June 7, 1994, the court entered a Judgment against the Respondent in the amount of $2,400, together with 12 percent interest on the Judgment.

   
   

6. The Respondent has made no payments to Vale on the Judgment and has not satisfied the Judgment either in full or in part.

   
   

7. The Board has published "Guidelines for Disciplinary Action" which provide for a $300 fine as the "typical" penalty for the first "minor" infraction and a $750 fine as the "typical" penalty for the first "major" infraction. The Guidelines give no guidance in distinguishing between "minor" and "major" infractions. The Guidelines also list aggravating and mitigating circumstances which focus on the harm done by the offense, the licensee's efforts to rectify the situation, and whether there is a history of similar offenses by the licensee. They also authorize suspension or revocation and fines "not to exceed $1,000 per count."

   
   

   CONCLUSIONS OF LAW

   
   

8. Under Section 12(6) of Chapter 75-489, Laws of Florida (1975), as amended, the Pinellas County Construction Licensing Board (the Board) "is designated an 'agency' as defined in section 120.52(1)(c), Florida Statutes, for purposes of utilizing the Division of Administrative Hearings of the Department of Administration." Because of this law, the Division of Administrative Hearings has jurisdiction and is required to hold hearings in cases referred by the Board.

9. Count I of the Administrative Complaint in this case charges the Respondent with violating Section 489.129(1)(r), Florida Statutes. Section 489.129(1)(r), Fla. Stat. (1993), authorizes the State of Florida Construction Industry Licensing Board to discipline a licensee for: "Failing to satisfy within a reasonable time, the terms of a civil judgment obtained against the licensee . . . relating to the practice of the licensee's profession."

   
   

10. Section 24 of Chapter 75-489, Laws of Florida (1975), as amended, does not expressly authorize the Pinellas County Construction Licensing Board to discipline one of its licensees for violating Section 489.129(1)(r), Florida Statutes. Rather, Section 24 of Chapter 75-489, Laws of Florida (1975), as amended, provides in pertinent part:

    
    

    1. On its own motion or the verified complaint of any person, the board may investigate the action of any contractor certified or registered under this part . . .. Where no local board exists, or when such local board waives its jurisdiction, the board shall take jurisdiction. The Board may take appropriate disciplinary action if the contractor is found to be guilty of or has committed any one of the acts or omissions consti-

       tuting cause for disciplinary action set out herein or adopted as rules or regulations by the board.

    2. The following acts constitute cause for disciplinary action:

       * * *

       (c) Violation of Chapter 455, Florida Statutes; . . ..

       (Emphasis added.)

       
       

11. Chapter 455, Fla. Stat. (Supp. 1994), does not contain ground for discipline that corresponds to Section 489.129(1)(r), Fla. Stat. (1993). Rather, in pertinent part, Section 455.227(1), Fla. Stat. (Supp. 1994), authorizes one of the state professional boards to discipline a licensee for:

    
    

    (k) Failing to perform any statutory or legal obligation placed upon a licensee.

    * * *

    (q) Violating any provision of the

    applicable professional practice act . . ..

    
    

    It is concluded that paragraph (q), if not also (k), makes a violation of Section 489.129(1)(r) a punishable offense under Section 24 of Chapter 75-489, Laws of Florida (1975), as amended.

    
    

12. Count II of the Administrative Complaint charges the Respondent with violating Section 24(2)(m) of Chapter 75-489, Laws of Florida (1975), as amended. Section 24(2)(m) of Chapter 75-489, Laws of Florida (1975), as amended, provides that the following act also is cause for disciplinary action:

    
    

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

    
    

    It is concluded that the facts of this case are insufficient to prove a violation of this provision.

13. Section 24(6) of Chapter 75-489, Laws of Florida (1975), as amended, provides that upon proof of violations listed in (2):

    
    

    The board is authorized to take the following disciplinary action:

    1. Suspend the certificate holder or registrant from all operations as a contractor during the period fixed by the board but the board may permit the certificate holder or registrant to complete any contracts then uncompleted.

    2. Revoke a certificate or registration.

    3. Impose an adminstrative fine or penalty not to exceed $1,000.00 (which shall be recover- able by the board only in an action at law).

    4. Require restitution and impose reasonable investigative and legal costs.

    
    

14. It is concluded that the facts of this case support the conclusion that the Respondent has violated Section 24(2)(c) and (m) of Chapter 75-489, Laws of Florida (1975), as amended.

    
    

15. As found, the Board has published "Guidelines for Disciplinary Action." The validity of the Guidelines has not been challenged under either Section 120.535 or Section 120.56, Fla. Stat. (1993), and it is presumed that this amendment has been promulgated under the requirements of both Section 29 of Chapter 75-489, Laws of Florida (1975), as amended, and Section 120.54, Fla. Stat. (1993).

    
    

16. As found, under the Guidelines, a $300 fine would be the "typical" penalty for the first "minor" infraction, and a $750 fine would be the "typical" penalty for the first "major" infraction. The Guidelines give no guidance in distinguishing between "minor" and "major" infractions. It is concluded that the Respondent's infraction should be considered "major." It violates one of the primary concerns and expectations of the public in dealing with a licensed contractor--that, if the contractor does not perform the contract in a competent manner, the property owner will be made whole.

    
    

17. Having concluded that the Respondent's infraction should be considered "major," it is concluded that application of the aggravating and mitigating factors do not make out a compelling case for deviating from the "typical" penalty.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Pinellas County Construction Licensing Board enter a final order: (1) finding the Respondent guilty of violating Section 24(2)(c) of Chapter 75-489, Laws of Florida (1975), as amended; (2) fining him $750; (3) revoking his license; and (4) conditioning relicensure upon both full restitution to Cameron Vale under the terms of the outstanding Judgment and full payment of the fine imposed in this case.

RECOMMENDED this 23rd day of June, 1995, in Tallahassee, Florida.

J. LAWRENCE JOHNSTON 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 23rd day of June, 1995.

COPIES FURNISHED:

William J. Owens Executive Director

Pinellas County Construction Licensing Board

Suite 102

11701 Belcher Road

Largo, Florida 34643-5116

Bradley T. Barbour B & B Tile

2035 Philippe Parkway

Safety Harbor, Florida 34695

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit to the Pinellas County Construction Licensing Board written exceptions to this Recommended Order. All agencies allow each party at least ten days in which to submit written exceptions. Some agencies allow a larger period within which to submit written exceptions. You should consult with the Pinellas County Construction Licensing Board concerning its rules on the deadline for filing exceptions to this Recommended Order.

Docket for Case No: 95-001486

Orders for Case No: 95-001486