STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

PINELLAS COUNTY CONSTRUCTION ) LICENSING BOARD, )

)

Petitioner, )

)

vs. ) CASE NO. 95-5933

)

MICHAEL G. LINTON, )

)

Respondent. )

)

RECOMMENDED ORDER

A hearing was held in this case in Largo, Florida, on March 20, 1996, before Arnold H. Pollock, a Hearing Officer with the Division of Administrative Hearings.

APPEARANCES

For Petitioner: William J. Owens

Executive Director

Pinellas County Construction Licensing Board

11701 Belcher Road, Suite 102

Largo, Florida 34643-5116

For Respondent: Louis Bakkalapulo, Esquire

The Wilder Center

3000 Gulf to Bay Boulevard, Suite 404 Clearwater, Florida 34619

STATEMENT OF THE ISSUE

The issue for consideration at this hearing is whether Respondent's certification as a communications systems specialty contractor in Pinellas County should be disciplined because of the matters alleged in the Administrative Complaint filed herein.

PRELIMINARY STATEMENT

By Administrative Complaint dated October 13, 1995, William J. Owens, Executive Director of the Pinellas County Construction Licensing Board, (Board), charged Respondent, Michael G. Linton, with moving a satellite receiving dish from one location to another without first securing a permit from the city to do so; performing work on the project in violation of approved engineering for it; and committing financial misconduct, all in violation of Chapter 75-489, Laws of Florida. Respondent denied the allegations and demanded formal hearing and this hearing ensued.

At the hearing, the Board presented the testimony of Kimberly Marie Carter, the individual for whom Respondent performed the work in issue, and Stanley E. Moore, Building Official for the City of Belleair Beach, Florida. Petitioner also introduced Petitioner's Exhibits 1 through 4. Respondent testified in his own behalf and introduced Respondent's Exhibit A. The Hearing Officer officially recognized Section 6-3(a), Belleair Beach City Code, and heard as a Hearing Officer witness the testimony of V.J. Carter, husband of Kimberly M. Carter.

No transcript was furnished. Subsequent to the hearing, only counsel for Respondent submitted Proposed Findings of Fact which have been ruled upon in the Appendix to this Recommended Order.

FINDINGS OF FACT

1. At all times pertinent to the issues herein, the Petitioner, Pinellas County Construction Licensing Board, was the county agency responsible for licensing contractors in the construction trades in Pinellas County and for the regulation of the profession of contracting in that county. Respondent, Michael

   G. Linton held license No. C-5513 as a certified communications systems specialty contractor in Pinellas County.

   
   

2. On or about June 14, 1995, Kim and Vincent Carter, tenants at a residence located at 118 7th Street in Belleair Beach, Florida, contacted Respondent to secure his assistance in moving the satellite reception dish which he had initially installed for them to their new residence. On that date, Respondent issued an invoice to the Carters on which he indicated he was to reinstall their satellite system for $300.00. The statement was signed by Respondent and also bears the apparent signature of V.J. Carter. Mr. Linton claims it was Mrs. Carter who signed the statement authorizing the work, however, but she denies it and Mr. Carter claims it was he who signed it.

   
   

3. Mr. Carter disconnected the system inside the residence and helped to take down the outside dish. Respondent moved the dish from the Carter's old residence to their new residence where it was to be reinstalled. Respondent did not pull a permit from the City of Belleair Beach to construct the base for the antenna dish. A permit was required.

   
   

4. Mr. Linton claims he did not dig the hole for the base into which he poured the cement but that the base hole was dug by Mr. Carter. Mr. Carter denies having done so. Whoever dug the hole, it did not meet code requirements since it was only 20 inches deep and the code requires a base of concrete at least 48 inches deep. The length and breadth of the slab depends on the size of the satellite dish and the length of the pole on which it will be affixed.

   
   

5. The Carters deny that they agreed to pull the permit for this work, claiming that since they are not the owners of the property, they cannot do so. This is not so, however, because, under the terms of the Code, (Section 6- 3(a)(1), either the owner of the property or the authorized agent of the owner can pull the permit. If authorized by the owner of the new residence, either the Carters or the contractor may have pulled the permit. Neither did.

   
   

6. Respondent claims he was hired by the Carters only to help them move their satellite system. He was to be paid between $300.00 and $350.00, and Mr. Carter was to help. Because Carter and Mr. Moore, the building official, were old friends, Carter was to pull his own permit and that was put on the invoice.

   The Carters claim this notation was not there when they signed the invoice. Respondent claims he would have charged $150.00 extra to pull the permit.

   
   

7. Respondent admits he holds himself out as a communications systems contractor and that he was retained by the Carters to do work related to the move of their satellite system from one residence to another, but only to help Mr. Carter. He admits he knew a permit was required for the construction of the new base and, though he may not have known whether a permit had been pulled before he poured the new base, he did not pull it himself or insure that one had been pulled. He now admits he should not have relied on the Carters' representations that they would take care of it. He also did not insure that the base which was poured conformed to the requirements of the approved engineering for the installation.

   
   

8. The city's building official, Mr. Moore, inspected the work site, on two separate occasions. He first found the hole to be too shallow. When he came back to reinspect, the cement had been poured and he could not gauge the depth, finally accepting the certification of the subsequent contractor that the base conformed to specifications. The conforming work was not done by Respondent but by a subsequent contractor hired by the Carters, Satellite Communications and Electronics, Inc. The Carters were billed an additional

   $250.00 for this follow up work. This included a fee of $150.00 for pulling the required permit.

   
   

   CONCLUSIONS OF LAW

   
   

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

   
   

10. Petitioner alleges in its Administrative Complaint that the Respondent performed work which required the issuance of a permit without obtaining such a permit from the city; improperly performed the work in violation of the approved engineering for the project; and committed financial mismanagement or misconduct in the performance of this work which resulted in the customer paying more for the work than was called for in the contract; in violation of Sections 24(2)(d), (h), (j), (m), and (n) of Chapter 75-489, Laws of Florida.

    
    

11. Section 24 of the current version of Chapter 75-489, (Chapter 89-504), lists several bases for the imposition of disciplinary action against a registered contractor by a regulatory agency. These include, as pertinent here:

    
    

    (d) Willfully or deliberately disregarding and violating the applicable building codes or laws of the state, the board, or of any munici- pality or county of this state.

    * * *

    (h) Committing mismanagement or misconduct in the practice of contracting that causes financial harm to a customer.

    * * *

    (j) Failing in any material respect to comply with the provisions of this part.

    * * *

    1. Being found guilty of fraud or of deceit

       or of gross negligence, incompetency, or misconduct in the practice of contracting.

       * * *

    2. Proceeding on any job without obtaining local building department permits.

    
    

12. With regard to subparagraph (d), supra, financial mismanagement or misconduct occurs when the contractor's job has been completed and the customer has had to pay more for the contracted job than the original job price unless certain conditions, not pertinent here, pertain.

    
    

13. The burden of proof in this case rests upon the Board to establish the Respondent's misconduct by clear and convincing evidence. Ferris v. Turlington, 510 So.2d 292 (Fla. 1987).

    
    

14. The state of the evidence presented in this case is, for the most part, in equipoise. Assuming, arguendo, that Respondent's contentions regarding the Carter's alleged agreement to pull the permit and Mr. Carter's participation in the work to be done are correct, that does not change the fact that Respondent held himself out as a professional and licensed contractor; that he participated in the work that was done; and that he did not insure, before he commenced any work, that the required permits had been obtained. That was his responsibility and he failed to fulfill that responsibility. He disregarded the requirements of the building code and thereby failed to comply with a material provision of the statute. Even if he did not intentionally or knowingly do so, this constitutes misconduct in the practice of contracting.

    
    

15. The evidence also establishes that the concrete base poured by the Respondent was not consistent with the engineering required and approved for this project, even if the hole was dug by Mr. Carter as Respondent alleges. He had the responsibility to insure the work was done properly and failed to do so. This total and cavalier disregard for the requirements of the law and compliance with engineering requirements constitutes gross negligence.

    
    

16. Further, the evidence establishes clearly and convincingly that the Carters were obligated to spend additional sums over the $300 they had contracted with Respondent for to have the installation completed properly.

    
    

17. Petitioner has not indicated what it considers to be a proper quantum of punishment for the offenses alleged and of which the evidence establishes Respondent's guilt. The practice of the Board to consider restitution as a factor to be considered is appropriate.

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 finding Respondent guilty of the offenses alleged, placing his license on probation for six months, and imposing an administrative fine of $250.00.

DONE and ENTERED this 12th day of April, 1996, in Tallahassee, Florida.

ARNOLD H. POLLOCK, 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 12th day of April, 1996.

APPENDIX TO RECOMMENDED ORDER, CASE NO. 95-5933

To comply with the requirements of Section 120.59(2), Florida Statutes (1993), the following rulings are made on the parties' proposed findings of fact:

Petitioner's Proposed Findings of Fact.

None submitted.

Respondent's Proposed Findings of Fact.

Respondent's counsel did not number the facts urged in that portion of his submittal described as "Respondent's version Of The Facts." Therefore, the four paragraphs in that section will be addressed individually.

1. Accepted.

2. Accepted, but the contractor must not begin work without a permit being issued.

3. Not a proper Finding of Fact but a comment on the state of the evidence.

4. Accepted.

COPIES FURNISHED:

William J. Owens Executive Director

Pinellas County Construction Licensing Board

11701 Belcher Road, Suite 102

Largo, Florida 34643-5116

Louis Bakkalapulo, Esquire The Wilder Center

Suite 404

3000 Gulf to Bay Boulevard Clearwater, Florida 34619

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions to the Recommended Order. All agencies allow each party at least 10 days in which to submit written exceptions. Some agencies allow a larger period within which to submit written exceptions. You should consult with the agency that will issue the Final Order in this case concerning their rules on the deadline for filing exceptions to this Recommended Order. Any exceptions to this Recommended Order should be filed with the agency that will issue the Final Order in this case.

Docket for Case No: 95-005933

Orders for Case No: 95-005933