STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

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

)

Petitioner, )

)

vs. ) CASE NO. 83-418

)

EDWARD RYAN, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, WILLIAM B. THOMAS, held a formal hearing in this case on April 29, 1983, in Miami, Florida. The transcript was received on May 16, 1983, and the parties requested 20 days thereafter to submit proposed findings of fact and conclusions of law. These were filed during this time period as extended, and they have been considered. Where not adopted, they were found to be irrelevant or immaterial, or not supported by the weight of the credible evidence, and have been rejected.

By stipulation at the hearing, the time for issuance of this Recommended Order was extended to 30 days after the filing of proposed findings and conclusions, or until August 4, 1983.

APPEARANCES

For Petitioner: Michael J. Cohen, Esquire

2715 East Oakland Park Boulevard, Suite 101 Fort Lauderdale, Florida 33306

For Respondent: Martin Lemlick, Esquire

900 Bay Drive, Suite 110 Miami Beach, Florida 33141

By Administrative Complaint issued on September 2, 1982, the Respondent was charged with violating applicable local building codes and laws by failing to fulfill contractual obligations and by failure to pull building permits in a timely manner, by refusing to honor a warranty given by him, by making misleading and untrue statements relative to a warranty given by him, and by continued misconduct in the practice of contracting.

In support of the Complaint, the Petitioner presented two witnesses, both of whom had contracted for home improvements to be made by the company for which the Respondent was the sole qualifier, and the Respondent who testified as an adverse witness in spite of having been advised of his right not to give evidence against himself. Six exhibits were offered in evidence, five of which were received. The sixth was not received.

The Respondent presented no evidence.

On February 14, 1983, the Petitioner served its Request for Admissions on the Respondent by mail, and on February 17, 1933, a copy was filed in this Division. No response to this pleading was made by the Respondent as required by Rule 1.370 of the Florida Rules of Civil Procedure. Until the date of the final hearing the Respondent was not represented by counsel. At the hearing he testified under oath that he had not received the Request for Admissions, and there was no reason to doubt this. Therefore, the factual and documentary subjects of the Request for Admissions were not deemed admitted for failure of the Respondent to answer. Counsel for the Petitioner had apparently expected a ruling deeming the subject matter of the Request for Admissions to be admitted, thereby eliminating further proof of these matters, but the credible denial of the Respondent under oath that he did not receive the Request for Admissions precluded such a ruling.

FINDINGS OF FACT

1. The Respondent, Edward Ryan, is a certified building contractor. From late in the year 1979 to February 15, 1982, the Respondent was the sole qualifier for Behr Contracting, Inc., a company located in Coconut Grove and later in Miami, Florida.

   
   

2. On July 30, 1981, Annie Allen entered into a contract with Behr Contracting, Inc., for improvements to her house totalling $6,720. This contract bears the signature of Annie Allen, but is not signed by the Respondent as a representative of Behr Contracting, Inc.

   
   

3. Except for two references to one occasion, however (Tr.31, Tr.53) , Annie Allen was dealing with persons other than the Respondent (Tr.38, Tr.41, Tr.43, Tr.44, Tr.45, Tr.48). She admitted (Tr.53) that the Respondent's face looks familiar, but she could not state for certain that she was dealing with the Respondent.

   
   

4. The work done by Behr Contracting, Inc., on Annie Allen's house was not done to her satisfaction.

   
   

5. On March 14, 1981, Odie Williams entered into a contract with Behr Contracting, Inc., for improvements to her house totalling $12,600.

   
   

6. The Respondent was not the salesman who solicited this contract, nor was it signed by the Respondent as a representative of Behr Contracting, Inc. Odie Williams first spoke with the Respondent on the telephone in 1982 (Tr.70) after the work on her house had been completed, and after an August 17, 1982, letter from Behr Contracting, Inc., to Odie Williams. In August, 1982, the Respondent was no longer associated with Behr Contracting, Inc.

   
   

7. Except for this conversation, Odie Williams was dealing with persons other than the Respondent (Tr.63, Tr.70, Tr.73, Tr.78, Tr.83).

   
   

8. The work done by Behr Contracting, Inc., on the house of Odie Williams was not done to her satisfaction.

   
   

9. The Respondent admitted that he went to the house of Annie Allen in December of 1981 or in January of 1982 in response to her complaint that a door

   knob had fallen off her front door. On this occasion Mrs. Allen was not at home.

   
   

10. The Respondent contends that there was no requirement for the pulling of a building permit for the work done on the Allen house. There is no evidence in the record to the contrary.

    
    

11. The Respondent admitted that he had one contact with Odie Williams, which occurred after he had left Behr Contracting, Inc.

    
    

12. The Respondent contends that either a building permit was pulled for the work done on the Williams house, or that no permit was required; he cannot recall which was the case. There is no evidence in the record to the contrary.

    
    

    CONCLUSIONS OF LAW

    
    

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

    
    

14. The Construction Industry Licensing Board is empowered to take disciplinary action against a contractor who is found guilty of any of the acts specified in Section 489.129(1)(c), (d), and (m) , Florida Statutes. These subsections provide:

    
    

    489.129(1)(c)

    Violation of Section 455.227(1)(a).

    The licensee has made misleading, de ceptive, untrue, or fraudulent representa- tions in the practice of his profession.

    
    

    489.129(1)(d)

    Willful or deliberate disregard and violation of the applicable building codes or laws of the state or of any municipali- ties or counties thereof.

    
    

    489.129(1)(m)

    Upon proof and continued evidence that the licensee is guilty of fraud or deceit or of gross negligence, incompetency, or

    misconduct in the practice of contracting.

    
    

15. The evidence presented by the Petitioner does not connect the Respondent with either the Allen contract or the Williams contract with Behr Contracting, Inc. Nor is this evidence sufficiently convincing to demonstrate the Respondent's connection with the work done on the Allen house or on the Williams house after the contracts were executed. There is no evidence that the Respondent made any warranty to either Annie Allen or to Odie Williams because he did not sign either of these contracts and did not own Behr Contracting, Inc., which was the contracting party. Neither is there any evidence that a building permit was required on either the Allen job or on the Williams job, or that if one was required, it was not pulled. Finally, the petitioner failed to present any evidence that the Respondent was aware that there was any dissatisfaction on the part of Annie Allen or Odie Williams with the work on their houses, or that there were any defects which had not been repaired, except

for a door knob which fell off. Accordingly, from the evidence presented, the Respondent is not guilty of the charges against him.

RECOMMENDATION

From the foregoing Findings of fact and Conclusions of Law, it is RECOMMENDED that the Administrative Complaint against the Respondent,

Edward Ryan, be dismissed.

THIS RECOMMENDED ORDER entered on this 4th day of August, 1983, in Tallahassee, Florida.

WILLIAM B. THOMAS, 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 August, 1983.

COPIES FURNISHED:

Michael J. Cohen, Esquire

2715 East Oakland Park Boulevard Suite 101

Fort Lauderdale, Florida 33306

Martin Lemlick, Esquire 900 Bay Drive

Suite 110

Miami Beach, Florida 33141

James Linnan, Executive Director Construction Industry Licensing Board Post Office Box 2

Jacksonville, Florida 33302

Fred Roche, Secretary

Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32301

Docket for Case No: 83-000418

Orders for Case No: 83-000418