05-001973PL Pinellas County Construction Licensing Board vs. Robert Neal Davis Status: Closed Recommended Order on Friday, September 30, 2005.

Summary: Respondent failed to apply for a permit, record a Notice of Commencement, and obtain the required inspections. Recommend a fine of $400.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

PINELLAS COUNTY CONSTRUCTION )

LICENSING BOARD , )

)

Petitioner, )

)

vs. ) Case No. 05 - 1973PL

)

ROBERT NEAL DAVIS , )

)

Respondent. )

)

RECOMMENDED ORDER

Administrative Law Judge (ALJ) Daniel Manry conducted the

administrative hearing of this case telephonically on

September 2, 2005, on behalf of the Division of Administrative

Hearings (DOAH).

APPEARANCES

For Petitioner: Donald S. Crowell, Esquire

Pinellas County Attorney

315 Court Street, Six th Floor

Clearwater, Florida 33756

For Respondent: Robert Neal Davis, pro se

9770 130th Avenue, North

Largo, Florida 33773

STATEMENT OF THE ISSUES

The issues presented are whether Petitioner should

discipline Respondent's license as a roofing contractor for

kno wingly and willfully performing roof repairs without first

obtaining a permit and recording a Notice of Commencement and

without obtain ing interim and final inspections of the work ,

and, if so, whether the proposed penalty is reasonable.

PRELIMINARY STATEMENT

On March 30, 2005, Petitioner filed a two - count

Administrativ e Complaint against Respondent. Respondent timely

r equested an administrative hearing. Petitioner referred the

matter to DOAH to assign an ALJ to conduct the hearing.

At the hearing, Petitioner presented the testimony of two

witnesses and submitted no exhibits for admission into evidence.

Respondent did n ot testify, called no witnesses, and submitted

23 exhibits for admission into evidence. The identity of the

witnesses and exhibits, and the rulings regarding each, are

reported in the official record of the hearing. Neither party

requested a transcript o f the hearing.

Petitioner timely filed its proposed recommended order

(PRO) on September 12, 2005. Respondent filed post - hearing

submissions on September 12 and 13, 2005.

FINDINGS OF FACT

1. Petitioner is the local agency responsible for

disciplining c ontractors licensed by Petitioner . At all times

material to this proceeding, Petitioner licensed Respondent as a

roofing contractor pursuant to license number C - 2779.

2. Sometime after October 8, 2004, Respondent knowingly

and willfully repaired the roof (roof repair) of a private

residence located in the City of Dunedin (the City) without

first obtaining a permit and recording a Notice of Commencement,

both of which are required by the City. Respondent performed

the work, valued at approximately $4,200, on a residence located

at 778 San Christopher Drive, Dunedin, Florida.

3. Respondent failed to obtai n interim and final

inspections of the roof repair . Respondent did not request the

City Building Department (the Department) to perform interim

inspect ions or final inspections, and the Depa rtment did not

perform any inspections of the roof repair .

4. Respondent met with Rodney S. Fischer, Executive

Director for Petitioner, to discuss the allegations against

Respondent . During that conversation, Resp ondent admitted to

performing the relevant roof repair without a permit.

5. Respondent offered several reasons for the failure to

obtain a permit and recording a Notice of Commencement prior to

performing the roof repair . The work performed was to repa ir

damage from a previous hurricane. Time was of the essence

because another hurricane was approaching. T he homeowner was in

the hospital and was not able to replace Respondent with another

roof contractor.

6. Respondent objects to the disclosure of inf ormation

required by the City in the permit application and Notice of

C ommencement . Respondent claims that requirements for

disclosure of the value of the work to be performed discloses to

competitors the pricing structure utilized by Respondent and

provi des an unfair competitive advantage for large roofing

contractors.

7. The evidence is insufficient to support a finding that

the unauthorized roof repair caused harm to the homeowner or to

any other member of the public. Neither the homeowner nor a

priv ate citizen filed a complaint against Respondent. The

homeowner obtained a permit after Respon dent completed the roof

repair and is not subject to penalty.

8. The evidence is insufficient to support a finding that

any previous discipline has been imposed on Respondent's

license. As Petitioner admits in its PRO, Respondent has had

similar complaints against his license in the past relating to

the failure to pull permits for jobs requiring permits.

Complaints are not synonymous with convictions and discip line.

9. The purpose of the relevant requirement for a permit is

to protect the health, safety, and welfare of persons that come

into contact with the work. The requirement is also imposed to

ensure the integrity of the structure through interim

inspecti ons. There is no evidence that the roof repair is

faulty or is likely to harm the health, safety, and welfare of

the homeowner or others.

10. The City requires a Notice of Commencement to be filed

prior to the issuance of a permit in order to ensure that all

material suppliers and subcontractors are put on notice that

notices to the owner of a property must be provided in

accordance with the construction lien provisions o f Chapter 713,

Florida Statutes (2004). The requirement ensures that a

property owne r will not be required to pay twice for materials

or services rendered. There is no evidence that the homeowner

paid twice for the roof repair.

CONCLUSIONS OF LAW

11. Respondent does not challenge the validity of a rule

promulgated by Petitioner. Howeve r, Respondent does challenge

the validity of rules pro mulgated by the City that interpret

relevant law to impose the contested permitting requirements on

roofing contractors. The challenged rules include unpromulgated

rules contained in forms such as the permit application form

that the City requires Respondent to complete in order to obtain

a permit .

12. DOAH has no jurisdiction over the City. The City is

not a party to this proceeding. Chapter 120, Florida Statutes

(2004), does not authorize a proce dure similar to impleader by

which Respondent would be able to join the City in this

proceeding.

13. Respondent did not file a petition seeking an

administrative determination o f the validity of the relevant

C ity rules in accordance with Section 120.56 , Florida Statutes

(2004). Nor did Respondent show that the City is an agency,

within the meaning of Subsection 120.52(1), Florida Statutes

(2004) , that would be subject to the relevant rule challenge

provisions.

14. Subsection 120.57(1)(e), Florida Stat utes (2004),

authorizes Respondent to challenge an unadopted rule in a

proceeding conducted pursuant to Subsection 120.57(1), Florida

Statutes. Assuming arguendo that the basis of the proposed

agency enforcement action is comprised, in part or in whole, o f

unadopted rules, the City, rather than Petitioner, is the

"agency" required to satisfy the requirements in Subsection

120.57(1)(e), Florida Statutes (2004). As previously noted,

however, the City is not a party to this proceeding.

15. If it were dete rmined that Subsection 120.57(1)(e),

Florida Statutes (2004), requires Petitioner to "prove - up" the

prescribed statutory requirements, the evidence shows that the

contested permitting requirements satisfy the statutory

definition of a rule. § 120.52(15), Fla. Stat. (2004). The

City requirements for a permit, Notice of Commencement, and

interim and final inspections satisfy the statutory test of

general applicability. The contested requirements implement

statutory requirements discussed hereinafter and do not fall

within any exception in Subsections 120.52(15)(b) and (c),

Florida Statutes (2004).

16. The contested requirements do not exceed the powers,

functions, and duties delegate d by the legislature to

Petitioner , within the meaning of Subsection 120.5 7(1)(e)2.a . ,

Florida Statutes (2004). Nor do the contested requirements

violate any prohibition in Subsections 120.57(1)(e)2 . b. - f . ,

Florida Statutes (2004). Ch. 75 - 489, §§ 10, 23(2), and (3)(a)

and (g), Laws of Fla .

17. Petitioner is the agency respon sible for disciplinary

enforcement of construction licensing requirements in Pinellas

County , Florida . Ch. 75 - 489, §§ 10 , 23(2)(a), and 24 , Laws of

Fl a . Respondent is a licensee subject to the proposed

disciplinary action. Ch. 75 - 489, §11(1) and (1)(c), Laws of

Fla.

18. DOAH has jurisdiction over the parties and the subject

matter of this proceeding. §§ 120.569 and 120.57(1), Fla. Stat.

(2004) ; Ch. 75 - 489, § 12(6) , Laws of Fl a . DOAH provided the

parties with adequate notice of the administrative heari ng.

19. Petitioner has the burden of proof in this proceeding.

Petitioner must prove by clear and convincing evidence that

Respondent committed the acts alleged in the Administrative

Complaint and the reasonableness of the proposed penalty.

Ferris v. Tu rlington , 510 So. 2d 292 (Fla. 1987).

20. Petitioner satisfied its burden of proof. Petitioner

showed by clear and convincing evidence that Respondent

performed the roof repair within Pinellas County without first

applying for and obtaining a permit, rec ording a Notice of

Commencement, and completing required inspections in violation

of Sectio ns 104.1, 104.1.9, and 105.6, The Florida Building

Code, and Section 713.13, Florida Statutes (2004). Ch. 75 - 489,

§ 23(3)(a) and (g), Laws of Fla.

21. Peti tioner 's PRO proposes to impose an administrative

fine of $ 1,000 per count pursuant to Chapter 75 - 489, § 23(4 )(c),

Laws of Florida . However, the authorized fine is limited to

$500 per count. Ch. 75 - 489, § 23(4)(c), Laws of Fla.

2 2. There is no evidence of agg ravating circumstances in

this proceeding. The evidence shows that Respondent willfully

committed the alleged acts, but willfulness is a definitional

requirement rather than an aggravating circumstance.

23. Several mitigating circumstances are evidence d in the

record. The record reveals no prior convictions , for similar

offenses or other offenses . Testimony from City officials that

Respondent has engaged in prior consistent acts, i.e . , roof

repair without the requisite permit or inspections , is not cl ear

and convincing evidence of prior convictions and discipline .

24. Other mitigating factors includ e the hospitalization

of the homeowner , the need to repair prior hurricane damage, and

an impending second hurricane. The evidence demonstrates that

Res pondent reduced the harm that otherwise would have resulted

to the homeowner if the roof had not been repaired before the

second hurricane. The homeowner is not the complaining witness,

and there is no evidence of harm to the public.

RECOMMENDATION

Base d upon the foregoing Findings of Fact and Conclusions

of Law , it is

RECOMMENDED that Petitioner enter a final order finding

that Respondent is guilty of the violations alleged in the

Administrative Complaint and i mposing an administrative fine in

the tota l amount of $4 00.

DONE AND ENTERED this 30th day of September, 2005, in

Tallahassee, Leon County, Florida.

S

DANIEL MANRY

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee P arkway

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 30th day of September, 2005.

COPIES FURNISHED :

Robert Neal Dav is

9770 130th Avenue, North

Largo, Florida 33773

Donald S. Crowell, Esquire

Pinellas County Attorney

315 Court Street, Sixth Floor

Clearwater, Florida 33756

Rodney S. Fischer, Executive Director

Pinellas County Construction Licensing Board

11701 Belche r Road, Suite 102

Largo, Florida 33773 - 5116

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 w ith the agency that

will issue the Final Order in this case.