The contractor pulled an “express change out permit” for work that included the installation a new HVAC unit, new electrical, and new ductwork. While the contractor asserted five challenges to the suspension, it was ultimately upheld by the court that found competent evidence supported the suspension and the length of the suspension.
Spiro Paizes v. Sarasota County Mechanical Contractors Licensing and Examining Board, arises from a contract to install a new HVAC split system at a homeowner’s property. The contractor was ultimately charged with three alleged violations of the Sarasota County Building Code. While the county eventually only proved two of the violations, it still suspended the contractor’s operating certificate and permit pulling privileges in the county. The contractor appealed the suspension on five separate grounds.
The first ground was that the SCMCLE Board acted outside its legal authority when it revoked his permitting privileges in the county because only a “construction regulation board” is allowed to impose sanctions under section 489.113(4)(b), Florida Statutes, and that, in Sarasota County, that board is the Board of Adjustment and Appeals. The court did not agree with this argument, first noting that Chapter 489, Florida Statutes, does not limit a municipality to creating just one local construction regulation board. The court then concluded that while Sarasota County did have a Board of Adjustment and Appeals that was charged with administering the building code in Sarasota County, the power to suspend, revoke, or deny operating certificates and permit pulling privileges was given to the SCMCLE Board. Thus, the court concluded, the SCMCLE Board was operation and acting as a lawful construction regulation board under Chapter 489, Florida Statutes, when it suspended the contractor’s permit pulling privileges.
The second ground argued by the contractor was that the SCMCLE Board decision was not supported by competent, substantial evidence that he “willfully “commenc[ed] an HVAC addition/alteration with new ductwork and relocated air returns and electrical addition/alteration for the addition of a new HVAC system exceeding the scope of [the] permit.” In evaluating this argument, the court found that the following evidence was in the record relating to the SCMCLE Board’s decision:
The contractor entered into a contract with the homeowners to re-roof their home, install a new split HVAC unit, and perform a variety of repairs, including all labor and materials for $23,733.00.
The contract required the contractor to acquire a permit for the re-roof and new split HVAC
The new HVAC unit was to have new electrical wires run with disconnects
New air ducts and returns were to be installed to code to accommodate the new location and missing ducts
The contractor denied installing any electrical wiring other than the whip connection between the condenser and the disconnect and denied installing any new ductwork. In contrast, the homeowner testified that there was no existing HVAC or electrical equipment on the side of the home prior to the contractor’s work and provided an email from the contractor stating “[w]e installed a new concrete pad for the outside condenser unit and will be finishing the new electrical wiring with all the duct work as well. Coper lines will be run with the connections soldered on, etc.” A code enforcement officer also testified regarding photographs showing the new HVAC system and electrical work, and that the permit applied for was an “express permit intended for a change out, size for size, of existing air conditioning equipment for new equipment,” which was not what occurred here.
The court ultimately concluded that this was sufficient evidence to support the suspension of the contractor’s permitting privileges.
The third basis that the contractor asserted to challenge the suspension of its permitting privileges was that there was not competent substantial evidence to support the claim that he had previously been “found guilty in another county or municipality within the last 12 months of fraud or a willful building code violation if such fraud or violation would have been a violation if committed in Sarasota County.” Specifically, the contractor argued that a prior violation in Manatee County for an expired permit was not willful.
In evaluating the evidence to support this claim, the court noted that the contractor had been notified by the MAnatee Coutny Counstruction TRades Board of the violation, but failed to appear for the hearing, and that there were several violations found by the Manatee County Board relating to an HVAC permit, and that it took over a year for the contractor to comply with the Manatee County Board’s order to pay a fine and properly close the permit. While the contractor contended that the delay was caused by the homeowners being out of the country and there being no way access the property to inspect it, the court determined there was sufficient evidence to support this claim.
As a fourth basis to attack the suspension of his permitting privileges, the contractor argued that the SCMCLE Board was selectively enforcing the relevant codes against him due to hostilities that existed between the contractor and the building official. As evidence of this, the contractor pointed to the fact that the homeowner had not been fined for using other, unlicensed contractors at their home. The court noted that homeowners are treated differently under Chapter 489, Florida Statutes, and that a lack of fines imposed on a homeowner was not evidence of differential treatment; rather a lack of fines to other contractors would have been evidence of that and the contractor failed to provide any such evidence. Accordingly, the Court concluded that there was no evidence of differential treatment.
Finally, the contractor argued that the 18 month suspension was grossly excessive and disproportionate to the violations found. The court found that because the suspension was within the ranges provided by the code, and was for two violations, rather than just one, the suspension was appropriate.
The key takeaway from this is that permitting should be taken seriously, and the failure to apply for, use, and update permits so they appropriately reflect the work can result in severe consequences. Further, once a contractor is in the cross-hairs of an investigation, anything can come up and result in further suspensions, including other violations from other counties. Contractors should make every effort to avoid issues in permitting and to ensure that proper permits are used on projects where required.