01-003022PL Department Of Business And Professional Regulation, Construction Industry Licensing Board vs. Romuald Edward Price Status: Closed Recommended Order on Thursday, November 8, 2001.

Summary: Respondent guilty of violating Section 489.129(1)(o), Florida Statutes, because he failed to secure a local permit before proceeding on a job.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF BUSINESS AND )

PROFESSIONAL REGULATION, )

CONSTRUCTION INDUSTRY LICENSING )

BOARD, )

)

Petitioner, )

)

vs. ) Case No. 01 - 3022PL

)

ROMUALD EDWARD PRICE, )

)

Respondent. )

)

RECOMMENDED ORDER

A formal hearing was conducted in this case on

September 28, 2001, by video teleconference between Tallahassee,

Florida, and Daytona Beach, Florida, before the Division of

Administrative Hear ings by its Administrative Law Judge,

Suzanne F. Hood.

APPEARANCES

For Petitioner: Brian A. Higgins, Esquire

Department of Business and

Professional Regulation

1940 North Monroe Street

Tallahassee, Florida 32399 - 2202

For Respondent: Bruce Johns, Esquire

944 South Ridgewood Avenue

Daytona Beach, Florida 32114

STATEMENT OF THE ISSUES

The issues are whether Respon dent violated Sections

489.129(1)(i) and 489.129(1)(o), Florida Statutes, and if so,

what discipline should be imposed.

PRELIMINARY STATEMENT

On May 7, 2001, Petitioner Department of Business and

Professional Regulation, Construction Industry Licensing Bo ard

(Petitioner), filed an Administrative Complaint against

Respondent Romuald Edward Price (Respondent). Count I of said

complaint alleged that Respondent had violated Section

489.129(l)(i), Florida Statutes, by failing to comply with the

provisions of P art I, Chapter 489, Florida Statutes, in that

Respondent had not notified Petitioner in writing of

Respondent's current mailing address and phone number as

required by Section 489.124(2), Florida Statutes. Count II of

said complaint alleged that Responden t had violated Section

489.129.(1)(o), Florida Statutes, by proceeding on a job without

obtaining applicable local building department permits and

inspections.

On June 20, 2001, Respondent requested a formal

administrative hearing to contest the allegat ions in the

Administrative Complaint. Petitioner referred the case to the

Division of Administrative Hearings on July 26, 2001.

After receiving Petitioner's Unilateral Response to the

Initial Order on August 1, 2001, Administrative Law Judge

Charles C. A dams issued a Notice of Hearing on August 8, 2001.

Said notice scheduled the formal hearing for September 28, 2001.

Subsequently, the Division of Administrative Hearings

transferred the case to the undersigned.

On September 21, 2001, Petitioner filed a Unilateral

Prehearing Stipulation.

During the hearing, Petitioner presented the testimony of

three witnesses and offered five exhibits, which were accepted

into evidence. Respondent testified on his own behalf but

offered no exhibits for admission into evidence.

The court reporter filed a copy of the hearing Transcript

on October 25, 2001. Petitioner filed its Proposed Recommended

Order on November 5, 2001. As of the date of this Recommended

Order, Respondent has not filed proposed findings of fact a nd

conclusions of law.

FINDINGS OF FACT

1. At all times material to this proceeding, Respondent

was licensed as a Certified Plumbing Contractor, holding License

No. CF C056847. Respondent has maintained an active license

since October 19, 1995.

2. At all times material to this proceeding, Respondent

conducted his business under the name of Ron Price Plumbing and

Tile. On May 18, 2000, Respondent's business was located at

2043 Mike Street, South Daytona, Florida.

3. On May 18, 2000, Respondent gave E dward Carlson a

written proposal to perform some repair work in a bathroom at

Mr. Carlson's residence, which was located in Daytona Beach,

Volusia County, Florida. The letterhead on the written proposal

indicates that Respondent's business address was 204 3 Mike

Street, Daytona Beach, Florida. The written proposal states

that for the sum of $1,200, Respondent would perform the

following work : (a) remove floor and bottom two rows of tile;

(b) install PVC pan and drain; (c) install dura rock to walls;

(d) install four - by - four wall tile; (e) install second floor;

(f) install two - by - two floor tile; (g) use white grout; and (h)

haul away refuse. Mr. Carlson accepted this proposal.

4. Respondent did not pull a permit from the City of

Daytona Beach Building De partment before commencing the work in

Mr. Carlson's bathroom. The City of Daytona Beach, Florida,

requires a permit for the type of work performed by Respondent,

even though very few plumbers or contractors actually take the

time to pull one. Specifical ly, City of Daytona Beach Ordinance

104.1.4.1 requires a permit for minor repairs exceeding $500.

5. Respondent, subsequently, completed the work in

Mr. Carlson's bathroom. Mr. Carlson inspected the work and paid

Respondent $1,200 as agreed. Ther e is no credible evidence that

Respondent's work was substandard or that he damaged

Mr. Carlson's property in any respect.

6. Thereafter, Respondent moved his business to 6089

Airport Road, Port Orange, Volusia County, Florida. As of

Septemb er 1, 2000, Petitioner's records correctly reflect

Respondent's current address of record at the new business

location.

7. Petitioner expended $312.48 in total cost, excluding

attorney's fees, for investigating, filing, and pursuing the

complaint agains t Respondent through the administrative

complaint process.

CONCLUSIONS OF LAW

8. The Division of Administrative Hearings has

jurisdiction over the parties and the subject matter of this

proceeding. Sections 120.569 and 120.57(1), Florida Statutes.

9. Petitioner has the burden of proving the following by

clear and convincing evidence: (a) Respondent failed to notify

Petitioner of his current mailing address and phone number; and

(b) Respondent proceeded on a job without obtaining the

applicable loc al building department permit. Ferris v.

Turlington , 510 So. 2d 292 (Fla. 1987).

10. Section 489.124 (2), Florida Statutes, states as

follows:

Each certificateholder or registrant of

the department shall be solely responsible

for notifying the depa rtment in writing of

the certificateholder's or registrant's

current mailing address and phone number.

If the mailing address is not the

certificate holder's or registrant's

physical address, the certificateholder or

registrant shall also supply the physi cal

address.

11. Section 489.129(1), Florida Statutes, states as

follows in pertinent part:

(1) The Board may take any of the

following actions against any certificate

holder or registrant: place on probation or

reprimand the licensee, revoke, suspe nd, or

deny the issuance or renewal of the

certificate, registration, or certificate of

authority, require financial restitution to

a consumer for financial harm directly

related to a violation of a provision of

this part, impose an administrative fine not

to exceed $5,000 per violation, require

continuing education, or assess cost

associated with investigation and

prosecution, if the contractor, financially

responsible officer, or business

organization for which the contractor is a

primary qualifying agent , a financially

responsible officer, or a secondary

qualifying agent responsible under s.

489.1195 is found guilty of any of the

following acts:

* * *

(i) Failing in any material respect to

comply with the provisions of this part or

violating a rule or lawful order of the

board.

* * *

(o) Proceeding on any job without

obtaining applicable local building

department permits and inspections.

(4) In recommending penalties in any

proposed recommended final order, the

department shall fo llow the penalty

guidelines established by the board by rule.

The department shall advise the

administrative law judge of the appropriate

penalty, including mitigating and

aggravating circumstances, and the specific

rule citation.

12. Petitioner has not proven by clear and convincing

evidence that Respondent violated Sections 489.124(2) and

489.129(1)(i), Florida Statutes. Respondent's business was

located at 2043 Mike Street, South Daytona, Florida, on May 18,

2000. He subsequently moved his business to 6089 Air Port Road,

Port Orange, Florida. Petitioner's records correctly reflect

the new address of record for Respondent's business as of

September 2000.

13. Petitioner has proven by clear and convincing evidence

that Respondent violated Section 489. 129(1)(o), Florida

Statutes. Respondent failed to pull a required permit from the

City of Daytona Beach, Florida, before beginning the job for

Mr. Carlson. The failure of other plumbers or tile men to apply

for permits before performing similar jobs doe s not excuse

Respondent's behavior.

14. Pursuant to Section 455.2273(5), Florida Statutes,

recommended penalties must follow the penalty guidelines

established by the Florida Construction Industry Licensing

Board. Rule 61G4 - 17, Florida Administrative C ode, sets forth

the guidelines that are pertinent to this proceeding.

15. Rule 61G4 - 17.001, Florida Administrative Code, states

as follows in pertinent part:

The following guidelines shall be used in

disciplinary cases, absent aggravating or

mitigatin g circumstances and subject to

other provisions of this Chapter.

* * *

(10) 489.129(1)(j) [1] : Failing in any

material respect to comply with the

provisions of Part I of Chapter 489.

* * *

(f) 489.124: Failure to keep business

and fi nancial records as required. First

violation, $100 to $1,000 fine and/or

reprimand to probation; repeat violation,

$500 to $5,000 fine and/or probation or

suspension.

* * *

(16) 489.129(1)(p) [2] : Proceeding on any

job without obtaining applica ble local

building department permits and/or

inspections.

* * *

(c) Job finished without a permit having

been pulled, or no permit until caught after

job, or late permit during the job resulting

in missed inspection or inspections. First

viol ation, $500 to $1,500 fine; repeat

violation, $1,000 to $2,500 fine and

suspension or revocation.

16. Rule 61G4 - 17.002, Florida Administrative Code, states

as follows in relevant part:

Circumstances which may be considered for

the purpose of mitigati on or aggravation of

penalty shall include, but are not limited

to the following:

(1) Monetary or other damage to the

licensee's customer, in any way associated

with the violation, which damage the

licensee has not relieved, as of the time

the penalty is being assessed. (This

provision shall not be given effect to the

extent it would contravene federal

bankruptcy law.)

(2) Actual job - site violations of

building codes, or conditions exhibiting

gross negligence, incompetence, or

misconduct by the lic ensee, which have not

been corrected as of the time the penalty is

being assessed.

(3) The severity of the offense.

(4) The danger to the public.

(5) The number of repetitions of

offenses.

(6) The number of complaints filed

against the licensee .

(7) The length of time the licensee has

practiced.

(8) The actual damage, physical or

otherwise, to the licensee's customer.

(9) The deterrent effect of the penalty

imposed.

(10) The effect of the penalty upon the

licensee's livelihood.

(11 ) Any efforts at rehabilitation.

(12) Any other mitigating or aggravating

circumstances.

17. There are no aggravating circumstances in this case.

Petitioner presented evidence of a Closing Order in DBPR Case

Number 94 - 16335 in which Petitioner found probable cause to

believe that Respondent was working as a contractor/plumber

without a license. The Closing Order alone is insufficient to

support a conclusion that Respondent is a repeat offender.

18. There are a couple of mitigating factors. First ,

Respondent has not been the subject of a disciplinary action

since he became licensed in 1995. Second, there is no credible

evidence that Respondent caused Mr. Carlson any actual damage,

physical or otherwise.

RECOMMENDATION

Based on the foregoing Fi ndings of Fact and Conclusions of

Law, it is

RECOMMENDED:

That Petitioner enter a final order finding Respondent

guilty of violating Section 489.129(1)(o), Florida Statutes,

imposing an administrative fine in the amount of $500, and

assessing investigati ve costs in the amount of $312.48.

DONE AND ENTERED this 8th day of November, 2001, in

Tallahassee, Leon County, Florida.

___________________________________

SUZANNE F. HOOD

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 8th day of November, 2001.

ENDNOTES

1/ The ref erence to Section 489.129(1)(j), Florida Statutes, in

this subsection of Rule 61G4 - 17.001, Florida Administrative

Code, is incorrect because Section 489.129(1)(i), Florida

Statutes, is the statutory provision that addresses compliance

with Part I of Chapte r 489, Florida Statutes.

2/ The reference to Section 489.129(1)(p), Florida Statutes, in

this subsection of Rule 61G4 - 17.001, Florida Administrative

Code, is incorrect because Section 489.129(1)(o), Florida

Statutes, is the statutory provision that add resses working on a

job without pulling the applicable local building permit.

COPIES FURNISHED :

Brian A. Higgins, Esquire

Department of Business and

Professional Regulation

1940 North Monroe Street

Tallahassee, Florida 32399 - 2202

Bruce Johns, Esquir e

944 South Ridgewood Avenue

Daytona Beach, Florida 32114

Suzanne Lee, Executive Director

Construction Industry Licensing Board

Department of Business and

Professional Regulation

1940 North Monroe Street

Tallahassee, Florida 32399 - 1039

Hardy L. Rober ts, III, General Counsel

Department of Business and

Professional Regulation

1940 North Monroe Street

Tallahassee, Florida 32399 - 1039

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.