Swebilius v. Florida Const. Industry Licensing Bd., II-92
| Decision Date | 09 January 1979 |
| Docket Number | No. II-92,II-92 |
| Citation | 365 So.2d 1069 |
| Parties | Peter C. SWEBILIUS, Sr., Petitioner, v. FLORIDA CONSTRUCTION INDUSTRY LICENSING BOARD, Respondent. |
| Court | Florida District Court of Appeals |
Paul H. Hagglund of Hagglund, Matthews & Hagglund, New Smyrna Beach, for petitioner.
Barry S. Sinoff of Jacobs, Sinoff, Edwards, Alford & Burgess, Jacksonville, for respondent.
Swebilius appeals from an order of the Florida Construction Industry Licensing Board which suspended his license for a period of six months. Swebilius was sued by two persons with whom he had contracted to build a home. A judgment was recovered by them in which it was recited that the foundation and side walls were not built according to plans, and that the overall quality of the house was substandard. Following the judgment, the Board filed an administrative complaint, alleging Swebilius had violated § 501.204, Fla.Stat. (1975) and certain rules of the Department of Legal Affairs, Ch. 2-15.03, in the construction of the home by deviating materially from the plans without consent of the intended purchasers.
Findings were entered by the hearing examiner which found that mitigating circumstances allowed the contractor's deviation from the plans and specifications. It was concluded the evidence did not show that the petitioner had violated Ch. 468 to the extent his license should be suspended since the only violation, pertaining to the construction of the chimney shape of the house, was technical. The order recommended only that Swebilius be reprimanded, which was rejected by the Board's suspension order.
Swebilius raises several points in his appeal, the first being that the Board did not have subject matter jurisdiction to prosecute the complaint because § 468.112(1) provides that the Board must first forward a complaint to a local board, if one exists, otherwise the state Board "shall take jurisdiction." Swebilius observes that there was a local board in existence in Volusia County; therefore the Licensing Board had no jurisdiction. Under the Volusia County Code, the County Trades Examining Board has the authority to revoke or suspend a contractor's certificate of competency if, after hearing, it is found the contractor has violated any of the provisions of the code, which include in general the same prohibitions as are contained in Ch. 468.
The pertinent portion of § 468.112(1) provides in part:
On its own motion or the verified written complaint of any person, the board may investigate the action of any contractor certified or registered under this part and hold hearings pursuant to chapter 120; provided, however, when any complaint involves a contractor certified or registered under this part for acts or omissions occurring in any area of the state which has a local board, the board shall forward the complaint to the municipality, city, or county where the alleged violation occurred for its action. Where no local board exists, the board shall take jurisdiction.
The act is clear in its terms that only in the event a local board does not exist is FCI conferred jurisdiction to investigate, hold hearings, and if need be, suspend or revoke a license. The Licensing Board does not contest the existence of a local board; 1 it argues rather that Swebilius is estopped from raising the jurisdictional issue because it was first asserted on this appeal and not during any of the administrative level proceedings. While we are aware of the authority which the Board relies upon, i. e., Florida State Racing Commission v. McLaughlin, 102 So.2d 574 (Fla.1958); Krasnosky v. Krasnosky, 282 So.2d 186 (Fla. 1st DCA 1973); North Miami General Hospital, Inc. v. Kovens, 318 So.2d 567 (Fla. 3d DCA 1975), we believe that the issue has not been waived.
The Licensing Board, created by statute, § 20.30(5)(b), and Ch. 468, Part II, has only those powers which are conferred upon it by the legislature in order to carry out the aims for which it was established. See State v. Atlantic C. L. R. Co., 56 Fla. 617, 47 So. 969 (1908). Moreover an agency may not enlarge its jurisdiction; nor can jurisdiction be conferred upon the agency by agreement or consent of the parties. Gulf American Corp. v. Florida Land Sales Board, 206 So.2d 457 (Fla. 2d DCA 1968).
The Licensing Board, in suspending Swebilius' license, was functioning in a quasi-judicial manner. Cases involving a court's subject matter jurisdiction are...
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