Petition for Writ of Certiorari to Review Quasi-Judicial Action: Agencies, Boards, and Commissions of Local Government: ADMINISTRATIVE Code Enforcement construction license Code enforcement board is not required to follow strictly all rules of evidence in conducting its administrative hearings Competent substantial evidence including documentary evidence and testimony of investigator supported  hearing officer’s findings and conclusions

Hearing officer did not depart from the essential requirements of law by imposing the fine on Petitioner as an individual.  Petition denied.  Helms v. Pinellas County Construction Licensing Board, No. 09-000042AP-88B (Fla. 6th Cir. App. Ct. August 18, 2010).

 

NOT FINAL UNTIL TIME EXPIRES FOR REHEARING AND, IF FILED, DETERMINED

 

IN THE CIRCUIT COURT FOR THE SIXTH JUDICIAL CIRCUIT

IN AND FOR PINELLAS COUNTY, FLORIDA

APPELLATE DIVISION

 

 

DAVID HELMS,

                  Petitioner,                                                                        Ref. No.:  09-000042AP-88B

v.                                                                                             UCN:  52009AP000042XXXCV

 

PINELLAS COUNTY CONSTRUCTION

LICENSING BOARD,

                  Respondent.

_________________________________/

 

ORDER DENYING PETITION FOR WRIT OF CERTIORARI

            THIS CAUSE is before the Court on a Petition for Writ of Certiorari filed by Petitioner David Helms on August 14, 2009.  Respondent, Pinellas County Construction Licensing Board (“PCCLB”), filed a response.  Petitioner appeals a Special Master Final Order rendered by the PCCLB imposing a fine plus investigative costs for contracting to perform contractor’s work without a license.  Upon consideration, this Court finds that the Petition for Writ of Certiorari must be denied for the reasons set forth below.

            Petitioner is the principal of two construction companies but does not hold a construction license individually.  The first corporation, Signature Built Construction Inc. (“Construction Inc.”), is qualified to engage in contracting by the license of a separate contractor. [1]  The second corporation, Signature Built by David Helms, Inc. (“Signature Built”), is not qualified by any license to engage in contracting. 

            On October 18, 2005, Signature Built by David Helms entered into a contract to build a residential home for John and Linda Wolbert.  The first page of the contract identifies Signature Built by David Helms, Inc., as the “Builder” or “Seller.”  The contract further states:  “Signature Built Construction Inc., license numbers CBC1251933/QB32131 is the Contractor/Builder of record for Signature Built by David Helms, Inc. and is joined under this agreement.”  At the end of 2007, Signature Built filed a construction lien on the property for an unpaid balance.  Upon a complaint by the Wolberts, the PCCLB investigated and issued a citation for violation of Pinellas County Code (“Code”) section 22–14(1).           

Helms appealed the citation issued by the PCCLB, and the Special Master conducted a hearing on July 15, 2009.   Upon consideration of the testimony of the PCCLF investigator, Sunbiz business records, the construction contract, and documents related to the contract, the Special Master concluded that these documents showed Signature Built had contracted without a license in violation of section 22–14 and that Helms’s other company, Construction Inc., was not a party to the contract. 

In reviewing the Special Master’s order, this Court is limited to determining (1) whether procedural due process has been accorded, (2) whether the essential requirements of law have been observed, and (3) whether the administrative findings are supported by competent substantial evidence.  Vichich v. Dep’t Highway. Safety & Motor Vehicles, 799 So. 2d 1069, 1073 (Fla. 2d DCA 2001).  It is not the job or function of the circuit court to reweigh evidence and make findings when it undertakes a review of an administrative decision.  Dep’t of Highway Safety & Motor Vehicles v. Satter, 643 So. 2d 692, 695 (Fla. 5th DCA 1994).  The hearing officer assigned to hear the case by the department is “the trier of fact and in the best position to evaluate the evidence.”  Dep’t of Highway Safety & Motor Vehicles v. Favino, 667 So. 2d 305, 309 (Fla. 1st DCA 1995), cited in Dep’t of Highway Safety & Motor Vehicles v. Silva, 806 So. 2d 551 (Fla. 2d DCA 2002).

Petitioner argues that the Special Master did not observe the essential requirements of law by admitting and considering two unauthenticated Sunbiz internet business record printouts, as well as other hearsay evidence, over the Petitioner’s objection.  Florida Statutes governing local code enforcement boards state that “[f]ormal rules of evidence shall not apply, but fundamental due process shall be observed and shall govern the proceedings.”  § 162.07(3), Fla. Stat.  As a code enforcement board within the meaning of the statute, the PCCBA is not required to follow strictly all rules of evidence in conducting its administrative hearings.

Petitioner next argues that the Special Master lacked competent substantial evidence to support his findings and conclusions.  Specifically, Petitioner contends that Construction Inc., a licensed contractor, was a party to the Agreement and obtained all permits for the work.  Petitioner cites to the Agreement’s statement that Construction Inc. “is the Contractor/Builder of record for Signature Built . . . and is joined under this agreement.”  Change orders to the contract referenced Construction Inc.’s license numbers but identified Signature Built as the builder.  The Claim of Lien and the Final Affidavit of Contractor filed on the property also named Signature Built as the contractor and were signed by Petitioner as the President of Signature Built.   No signature block appears for Construction Inc. on any of the documents submitted.  Such documents and the testimony of the investigator provide competent and substantial evidence on which the hearing officer could have based his decision.

Petitioner argues finally that the Special Master departed from the essential requirements of law by imposing the administrative fine on Petitioner even though he signed the contract in his corporate capacity.  Section 22-14 of the Code enumerates violations for “any person or entity” to contract without being in compliance with licensing statutes, allowing for both corporate and personal responsibility, and section 22-12 references procedures for “any person” cited for a violation.  The underlying Florida licensing statute also states that “[n]o person shall” do the enumerated acts in that statute.  § 489.127, Fla. Stat.  Therefore, this court finds that the hearing officer did not depart from the essential requirements of law by imposing the fine on Petitioner as an individual in accordance with the plain meaning of the statute.

            Accordingly, it is

            ORDERED AND ADJUDGED that the Petition for Writ of Certiorari is DENIED.

            DONE AND ORDERED in Chambers, at St. Petersburg, Pinellas County, Florida, this ________ day of August 2010.

 

Original order entered on August 18, 2010 by Circuit Judges Amy M. Williams, Peter Ramsberger, and Pamela A.M. Campbell.

 

 

Copies furnished to:

Warren J. Knaust, Esquire

2167 Fifth Avenue North

St. Petersburg, FL 33713

Attorney for Petitioner

 

Jason C. Ester, Esquire

Assistant County Attorney

315 Court Street, Sixth Floor

Clearwater, FL 33756

Attorney for Respondent



       [1]Construction Inc. is qualified by Louise Wold-Parente, who is a licensed contractor and the company’s qualifying agent.