STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF PROFESSIONAL ) REGULATION, CONSTRUCTION INDUSTRY ) LICENSING BOARD, )

)

Petitioner, )

)

vs. ) CASE NO. 82-2398

)

JOHN M. SNEED, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, William E. Williams, held a public hearing in this cause on February 11, 1983, in Miami, Florida.

APPEARANCES

For Petitioner: Harold M. Braxton, Esquire

45 Southwest 36th Court Miami, Florida 33135

For Respondent: David A. Rosenblatt, Esquire

920 South Dade land Boulevard Miami, Florida 33176

Respondent, John M. Sneed ("Respondent") , is charged in a four-count Administrative Complaint dated July 15, 1982, with violations of Sections 455.227(1)(a) , 489.119(2) and (3) and 489.129(1)(c) , (d) , (e) , (f) , (g) ,

1. , (j) , and (k) Florida Statutes.

   
   

   Final hearing in this cause was scheduled for February 11, 1983, by Notice of Hearing dated October 12, 1982. At the final hearing, Petitioner called James Kozak, Richard Wagner, Kay Ballas, John M. Sneed, and William F. McDonald as its witnesses.

   
   

   Petitioner offered petitioner's Exhibits 1 through 9, which were received into evidence. Respondent called William Duncan as his only witness, and offered no exhibits for inclusion in the record.

   
   

   Both Petitioner and Respondent have submitted proposed findings of fact for consideration by the Hearing Officer. To the extent that those proposed findings of fact are not included in this recommended order, they have been specifically rejected as being either irrelevant to the issues involved in this cause, or as not having been supported by evidence of record.

   FINDINGS OF FACT

   
   

   1. At all times material to this proceeding, Respondent was a registered roofing contractor, having been issued License No. RC0034672, in the name of John M. Sneed, Beall and Associates Roofing Corp., 7650 Southwest 135th Street, Miami, Florida 33156.

      
      

   2. Sometime during the month of October, 1951, Jerry Stamos entered into an oral agreement with Bill Parry and Billy Duncan, to have Parry and Duncan reroof Stamos's home at 441 Castonia Avenue, Coral Gables, Florida. The contract price for the reroofing work was $4,000.

      
      

   3. At no time was either Duncan or Parry licensed to perform roofing work. As a result, after Mr. Stamos was unable to obtain a building permit in his own name to perform the work, Duncan contacted Respondent, and requested that Respondent pull the building permit for the job.

      
      

   4. On October 20, 1981, Respondent obtained City of Coral Gables, Department of Building and Zoning Permit No. A48375 to perform the work on the Stamos's property. At the time the building permit was pulled by Respondent, no work had commenced on the job.

      
      

   5. Duncan and Parry were paid a total of $4,000 for the job, $100 in cash;

      $2,000 on October 13, 1981; and an additional $1,900 on October 22, 1981.

      
      

   6. Shortly after the building permit was pulled and work had been commenced on the property by Duncan and Parry, Duncan and Parry stopped work on the roof and never returned. Respondent was on the job site on at least one occasion when work was being performed.

      
      

   7. No notice was furnished to Mr. Stamos concerning cessation of work on the project, nor was he ever given an explanation of why work stopped and was never recommenced by Parry, Duncan, or Respondent.

      
      

   8. Respondent never supervised any of the work performed by Parry or Duncan, nor did he ever call for any inspection of the project by the City of Coral Gables, Department of Building and Zoning.

      
      

      The South Florida Building Code, Section 3401.1(b) provides as follows:

      
      

      INSPECTION. The Building Officials shall be notified by the permit holder and ample time for mandatory inspections to be made as follows:

      1. At the time the anchor sheet is being mopped to non-nailable decks.

      2. At the completion of mechanically fastening the anchor sheet to nailable decks and before mopping.

      3. During the operation of shingling or tiling.

      4. Upon completion of the roof covering.

   9. On December 1, 1981, Respondent contacted the City of Coral Gables, Department of Building and Zoning, and cancelled the permit previously obtained by him on October 20, 1981. At that time, Respondent represented to city officials that construction had never started on the project, although he knew that representation to he false.

      
      

   10. The building project remained unfinished for a period in excess of ninety days before Mr. Stamos had the job finished by another contractor.

       
       

       CONCLUSIONS OF LAW

       
       

   11. The Division of Administrative Hearings has jurisdiction over the subject matter of and the parties to this proceeding. Section 120.57(1) , Florida Statutes.

       
       

   12. Section 455.227(1)(a) , Florida Statutes, empowers the Florida Construction Industry Licensing Board to revoke, suspend, reprimand, censure, or otherwise discipline a licensee upon finding that the licensee ". . . has made misleading, deceptive, untrue, or fraudulent representations in the practice of his profession. .

       
       

   13. Section 489.129(1), Florida Statutes, provides, in pertinent part, as follows:

       
       

       1. The board may revoke, suspend, or impose an administrative fine

          not to exceed $1,000, place the contrac- tor on probation, reprimand or censure, a contractor if the contractor is found guilty of any of the following acts:

          1. Violation of chapter 455.

          2. Willful or deliberate disregard and violation of the applicable building codes or laws of the state or of any municipalities or counties thereof.

          3. Aiding or abetting any uncertified or unregistered person to evade any pro- vision of this act.

          4. Knowingly combining or conspiring with an uncertified or unregistered person by allowing one's certificate or registra-

             tion to be used by an uncertified or unregis- tered person with intent to evade the provisions of this act. When a certificate holder or registrant allows his certificate or registration to be used by one or more companies without having any active partici- pation in the operations, management, or control of said companies, such act consti- tutes prima facie evidence of an intent to evade the provisions of this act.

          5. Acting in the capacity of a con- tractor under any certificate or registra- tion issued hereunder except in the name of the certificate holder or registrant as

             set forth on the issued certificate or registration, or in accordance with the

             personnel of the certificate holder or registrant as set forth in the application for the certificate or registration, or as later changed as provided in this act.

          6. Diversion of funds or property received for prosecution or completion of a specified construction project or opera- tion when as a result of the diversion

          the contractor is or will be unable to ful- fill the terms of his obligation or contract.

          1. Failure in any material respect to comply with the provisions of this act.

          2. Abandonment of a construction project in which the contractor is engaged or under contract as a contractor. A project is to be considered abandoned after 90 days if the contractor terminates said project without notification to the prospective owner and without just cause. . .

          
          

   14. It is specifically concluded that, based upon the foregoing Findings of Fact, Respondent has violated the aforementioned provisions of Section 455.227(1)(a) , and Section 489.129(1)(c), (e), (f), (g), (h), and (k), Florida Statutes. Additionally, Respondent has violated the provisions of Section 489.129(1)(j) , Florida Statutes, by failing to qualify a business as provided in Sections 489.119(2) and (3), Florida Statutes.

       
       

   15. However, it is specifically concluded that Petitioner has failed to establish the violation alleged in Count III concerning Respondent's failure to obtain inspections as required by the South Florida Building Code. The evidence in this cause fails to establish that construction ever reached the point during Respondent's involvement where the provisions of the South Florida Building Code required the request for and performance of such inspections.

       
       

   16. Accordingly, based upon the foregoing Findings of Fact and Conclusions of Law, it is

RECOMMENDED:

That a final order be entered by the Department of Professional Regulation, Construction Industry Licensing Board, finding Respondent guilty of the violations alleged in Counts I, II, and IV of the Administrative Complaint, and further that Respondent's license as a registered roofing contractor be suspended for a period of six (6) months.

DONE AND ENTERED this 4th day of April, 1983, at Tallahassee, Florida.

WILLIAM E. WILLIAMS

Hearing Officer

Division of Administrative Hearings The Oakland Building

2009 Apalachee Parkway

Tallahassee, Florida 32301

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 4th day of April, 1983.

COPIES FURNISHED:

Harold M. Braxton, Esquire

45 S.W. 36th Court Miami, Florida 33135

David A. Rosenblatt, Esquire 9200 South Dadeland Boulevard Miami, Florida 33176

James Linnan, Executive Director Construction Industry Licensing

Board

Department of Professional Regulation

Post Office Box 2 Jacksonville, Florida 32202

Fred M. Roche, Secretary Department of Professional

Regulation

130 North Monroe Street Tallahassee, Florida 32301

================================================================= AGENCY FINAL ORDER

=================================================================

STATE OF FLORIDA

DEPARTMENT OF PROFESSIONAL REGULATION CONSTRUCTION INDUSTRY LICENSING BOARD

DEPARTMENT OF PROFESSIONAL REGULATION,

Petitioner,

vs. CASE NO. 22104

DOAH CASE NO. 82-2398

JOHN M. SNEED

Beall and Associates Roofing Corp. 7650 S.W. 135th Street

Miami, Florida 33156,

Respondent.

/

FINAL ORDER

Respondent. John M. Sneed, holds Florida license No. RC 0034672 as a registered roofing contractor. petitioner filed an Administrative Complaint seeking suspension. revocation, or ocher disciplinary action against the license.

Respondent requested a formal hearing and one was held before the Division of Administrative Hearings. A Recommended Order has been forwarded to the Board pursuant to Sec. 120.57(1). F.S. it is attached to and made a part of this Order.

The Construction Industry Licensing Board met on July 7. 1983, in Orlando.

Florida, to take final agency action.

The Board has reviewed the entire record in the case.

The Board adopts the Findings of Fact and Conclusions of Law of the Recommended Order.

The Board concludes that these violations are so serious as to justify a higher penalty than that recommended. It is, therefore. ORDERED that Respondent's license is hereby SUSPENDED for five years. Respondent shall pay a fine of Two Thousand Dollars within thirty days.

DONE AND ORDERED in Jacksonville, Florida, this 18th day of July, 1983.

FLORIDA CONSTRUCTION INDUSTRY LICENSING BOARD

Henry Bachara, Chairman

Docket for Case No: 82-002398

Orders for Case No: 82-002398