STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

PINELLAS COUNTY CONSTRUCTION ) LICENSING BOARD, )

)

Petitioner, )

vs. ) Case No. 00-1233

) 00-3083

ERNEST J. MARTIN, )

)

Respondent. )

)

RECOMMENDED ORDER

A hearing was held in these cases by telephone conference on July 28, 2000, before Arnold H. Pollock, an Administrative Law Judge with the Division of Administrative Hearings. The Administrative Law Judge participated from Tallahassee, Florida. All other parties participated from Largo, Florida.

APPEARANCES

For Petitioner: William J. Owens, Executive Director

Pinellas County Construction Licensing Board

11701 Belcher Road, Suite 102

Largo, Florida 33773-5116

For Respondent: Ernest J. Martin, pro se

5050 34th Street North

St. Petersburg, Florida 33714 STATEMENT OF THE ISSUE

The issue for consideration in this case is whether Respondent's certificate as a plumbing contractor in Pinellas County should be disciplined because of the matters alleged in the Administrative Complaints filed herein.

PRELIMINARY MATTERS

By Administrative Complaints dated September 29, 1999, the Pinellas County Construction Licensing Board charged Respondent with misconduct in the practice of plumbing contracting by or incompetency in the practice of contracting, in violation of Section 489.129, Florida Statutes, by the use of a material not authorized by the Standard Plumbing Code in a line clean out, and by failing to provide a proper joint on the project as required by the Code. By second Administrative Complaint dated February 29, 2000, Respondent is alleged to have committed misconduct in the practice of contracting, in violation of the same statutory provision and of Section 489.129(j), Florida Statutes, by accepting payment for work done, and abandoning the job before completion. Respondent requested formal hearing on the allegations, and this hearing ensued.

At the hearing, Petitioner presented the testimony of Doris Ruttledge and Arthur Arendt, the owners of the properties on which the work was done; and Kenneth Klotz, chief plumbing inspector for the City of St. Petersburg. Respondent testified in his own behalf but introduced no documentary evidence.

No transcript was provided, however, a cassette tape of the proceeding, recorded by the Board's representative was provided on August 8, 2000. Neither party submitted matters in writing after the hearing.

FINDINGS OF FACT

1. At all times pertinent to the allegations herein, Petitioner, Pinellas County Construction Licensing Board (Board) was the agency responsible for the certification of plumbing contractors and the regulation of the plumbing trade in Pinellas County. Respondent was certified by the Board as a plumbing contractor, but his certification had been suspended by the Board on August 8, 1999, for failure to provide proof of required liability insurance.

2. Ernie Martin Plumbing (EMP) has been in business in Pinellas County, Florida, since the 1940's. The business was started by Respondent's father, with whom Respondent worked until he took over the business. Respondent operated the business until, due to the demands of health, he relied on two employees, Charlie Pierce and Greg Rowe, to do all the work commencing in the mid-1980's. He actually sold them the business in the late 1980's. Since neither Pierce nor Rowe was a licensed plumber, in October 1984 Respondent changed the status of his certificate to qualify the company on those jobs where certification was required.

3. Because he was not satisfied with the way the business was being run, however, on August 8, 1999, Respondent went to the offices of the Board for the purposes of having his certificate and name removed as the qualifying certification for EMP. At that time he was advised by a clerk at the Board office that his

   certificate had been suspended for a failure to maintain the required liability insurance for the company. Because of this, Respondent erroneously believed his license was no longer active and could not be used by the company, so he took no further action.

4. On November 8, 1999, Doris Ruttledge called EMP to fix a leak under her kitchen sink in her home at 3800 Fifth Avenue South. A representative of the company came to her home and purportedly fixed the leak. Ms. Ruttledge paid the fee required. She soon found out that the leak had not been properly fixed and still existed. She called EMP several times to come fix it, speaking each time with Greg Rowe, but the repair was not done. She finally had another plumber complete the required repairs.

5. Somewhat earlier, on July 31, 1999, Arthur Arendt experienced problems with the sewer line exiting his home located at 501 36th Avenue North. The line was blocked and sewage was backing up. Arendt called EMP and asked what it would cost to repair the problem. When he was quoted a price of $100.00, he agreed to have the work done, and a representative of EMP came to the house to do it. After digging down about five feet from the house, the plumber determined that the line was clogged and broke through the pipe to remove the blockage. Once the blockage was removed, the plumber asked Mr. Arendt for an empty two-liter soda bottle from which he cut a curved section which he placed over

   the opening in the pipe as a patch. The plumber then covered the patch with dirt and declared it fixed.

6. The following day, Mr. Arendt noticed that the pipe was leaking at the patch. He called Greg Rowe, the representative of EMP, who said he would fix it but did not do so. Finally, on September 30, 1999, after no-one from EMP had come out to repair the leak, Mr. Arendt repaired it himself. Several weeks later, in November 1999, Mr. Martin came to the Arendt home, examined the repair and Arendt's modification to it, and determined that further work needed to be done. Mr. Martin contacted Greg Rowe and told him he wanted the line repaired correctly and he wanted it done immediately. The required corrections were made.

7. According to Kenneth Klotz, the chief plumbing inspector for St. Petersburg, the use of a piece of plastic bottle is not an acceptable means of repairing a broken sewer line. A seal must be watertight to prevent leakage of sewage from the line into the surrounding ground. Within those parameters, small repairs may be made by patch, but larger repairs require the replacement of the broken pipe section. It is so found.

   CONCLUSIONS OF LAW

   
   

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

9. The Board has charged Respondent with misconduct with regard to two separate plumbing repairs made by the plumbing

   contractor who was operating at the time under the aegis of Respondent's license. The first case deals with the repairs to Ms. Ruttledge's sink. Respondent is alleged to have failed to make a proper repair to the line and to have failed to make the proper corrections even after having been paid for the work. The second deals with the patch to Mr. Arendt's sewer line.

   Respondent is alleged to have made an improper patch using inappropriate materials and following inappropriate procedures.

10. Petitioner has the burden to establish the misconduct of the Respondent by clear and convincing evidence. Department of Banking and Finance v. Osborne Stern & Co., 670 So. 2d 932 (Fla. 1996).

11. Section 24(2), Chapter 89-504, Laws of Florida, outlines those acts which constitute cause for disciplinary action against certified or registered contractors in Florida. This provision states, inter alia, that disciplinary action may be taken against a contractor when it can be shown that he:

    Commit[ed] mismanagement or misconduct in the practice of contracting that causes financial harm to a customer. Final mismanagement or misconduct occurs when:

    
    

    (2) the contractor has abandoned a customer's job and the percentage of completion is less than the percentage of the total contract price paid to the contractor at the time of abandonment, unless the contractor is entitled to retain such funds under the terms of the contract or refunds the excess funds within 30 days after the date the job is abandoned.

12. Section 489.129(1), Florida Statutes, also outlines the various acts which constitute grounds for discipline of a certificate holder or registrant. These include such actions as:

    (d) Performing any act which assists a person or entity in engaging in the prohibited uncertified and unregistered practice of contracting, if the certificate holder or registrant knows or has reasonable grounds to know that the person or entity was uncertified or unregistered.

    
    

    * * *

    
    

    (j) Abandoning a construction project in which the contractor is engaged under contract as a contractor. A project may be presumed abandoned after 90 days if the contractor terminates the project without just cause or without proper notification to the owner, including the reason for termination, or fails to perform work without just cause for 90 consecutive days.

    * * *

    
    

    (m) Committing incompetency or misconduct in the practice of contracting.

    
    

13. The evidence or record clearly indicates that, as to Ms. Ruttledge's property, EMP was paid in full for the sink repair, but that the repair work was not properly completed resulting in a continuing leak. Repeated calls to EMP failed to result in a satisfactory resolution of the problem. This constitutes a violation of both Subsections 489.129(1)(j) and (m), Florida Statutes.

14. The evidence also clearly establishes that EMP repaired the blockage in Mr. Arendt's sewer line using both inappropriate materials and in an inappropriate manner. This constitutes a

    violation of both Subsections 489.129(j) and (m), Florida Statutes.

15. Respondent contends that because he had sold the company to his two employees previous to both incidents, and because he was advised before the first incident that his certificate had been suspended, he was not licensed at the time of both incidents of misconduct and is, therefore, not responsible for them. In this he is mistaken.

16. The evidence of record clearly indicates that long before either incident, as far back as the mid-1980's, Respondent turned operation of EMP over to the two employees, but continued to maintain his license as the qualifier for the company. This status continued even after he sold the business in the late 1980's. Respondent may have sincerely believed that the suspension of his license in August 1999 released him from responsibility for misconduct or incompetence committed by those operating under his license. He is mistaken however.

17. The suspension of a license is not equivalent to the revocation of a license. While the effect of the latter is to remove licensure status, the former merely changes the status of the license, but the license holder remains licensed, and misconduct committed while a license is in suspended status is not rendered inactionable because of the suspended status of the license. Therefore, Respondent is subject to discipline for

    misconduct committed under the color of his license even though the license was suspended at the time.

18. In fact, the evidence also shows that when notified of the misconduct relating to the Arendt property, he stepped in and ensured the work was properly done by EMP. This indicates that he maintained some control over the company operations, limited though it may have been.

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 in this case revoking Respondent's certification (License C-985(RF0040714))as a plumbing contractor in Pinellas County without prejudice to apply for re-certification after one year.

DONE AND ENTERED this 9th day of August, 2000, in Tallahassee, Leon County, Florida.

ARNOLD H. POLLOCK

Administrative Law Judge

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

(850) 488-9675 SUNCOM 278-9675

Fax Filing (850) 921-6847 www.doah.state.fl.us

Filed with the Clerk of the Division of Administrative Hearings this 9th day of August, 2000.

COPIES FURNISHED:

William J. Owens, Executive Director Pinellas County Construction

Licensing Board

11701 Belcher Road, Suite 102

Largo, Florida 33773-5116

Ernest J. Martin

5050 34th Street North

St. Petersburg, Florida 33714

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within 15 days from the date of 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: 00-001233

Orders for Case No: 00-001233