STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF PROFESSIONAL )

REGULATION, CONSTRUCTION )

INDUSTRY LICENSING BOARD, )

)

Petitioner, )

)

vs. ) CASE NO. 84-2083

)

FRANKLIN A. MARCIANO, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice the Division of Administrative Hearings, by its duly designated Hearing Officer, K. N. Ayers, held a public hearing in the above- styled case on September 6, 1984, at Clearwater, Florida.

APPEARANCES

For Petitioner: Charles Tunnicliff, Esquire

Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32301

For Respondent: Frank A. Marciano, pro se

11327 43rd Street, North Clearwater, Florida 33520

By Administrative Complaint filed May 21, 1984, the Department of Professional Regulation, Petitioner, seeks to revoke, suspend, or otherwise discipline the license of Franklin A. Marciano, Respondent, as a roofing contractor. As grounds therefor it is alleged that Respondent performed roofing work in Pinellas Park where he was not licensed to work, and employed Edgar Plumtree to pull the permits needed; that Plumtree, who had purchased the roofing company of Joseph A. Saturno, forged Saturno's name on the permit application; that Respondent applied 90# mineral-surfaced roll roofing to several long flat valleys contrary to the provisions of the Southern Standard Building Code, adopted for use in Pinellas County; that in completing the job Respondent applied hot or cold asphalt over the existing roof with some of the gravel still in place, and did not replace the gravel with new gravel in violation of Pinellas County Building Code; and that he thereby willfully and deliberately disregarded the building codes of Pinellas County.

At the hearing Petitioner called four witnesses, Respondent called three witnesses, and fifteen exhibits were admitted into evidence.

FINDINGS OF FACT

1. At all times here relevant Respondent was licensed as a roofing contractor and qualifying agent and owner of Handyman Service Company, Pinellas Park, Florida.

   
   

2. In November or December 1982, representatives of Sandalwood Club Association contacted Richard Fabrizi, who was acting as sales agent for Handyman Service Company, about some repairs desired at their condominiums. Fabrizi advised Respondent and several meetings were held with Sandalwood representatives after which contract proposals for work desired by Sandalwood were presented by Respondent. It became apparent that complete reroofing of the Sandalwood condominiums was needed; however, the association did not have sufficient funds at that time for such a project. As a result of the negotiations a repair contract was entered into between Handyman and Sandalwood Club whereby Handyman contracted to perform certain work for $16,000 (Exhibit 1).

   
   

3. At about the time this contract was entered into Pinellas Park became incorporated and established its own building department. Respondent was qualified to perform roofing contracting in Clearwater, in whose jurisdiction Sandalwood was placed before Pinellas Park, but he had not qualified to contract in Pinellas Park. When this was realized, Respondent engaged the services of Edgar Plumtree, a licensed contractor, to pull permits and supervise the roofing at Sandalwood.

   
   

4. The permit for this work (Exhibit 2) was signed by Joseph A. Saturno, contractor, but no evidence was presented regarding Saturno or how his name came to appear on Exhibit 2.

   
   

5. Expert testimony was presented that the work proposed to be performed in Exhibit 1 constituted much more than repair work; however, Respondent's witness's testimony that the contract was intended by all parties to be a temporary repair, guaranteed for three years, was unrebutted.

   
   

6. Expert testimony that the use of 90# mineral-coated roofing material in valleys did not comply with the Southern Standard Building Codes, which has been made applicable to Pinellas Park, was modified on cross-examination by testimony that such material could be used for repairs if approved by the building inspector. The evidence was unrebutted that the building inspector approved the use of the 90# roofing in the valleys.

   
   

7. The expert witness further found violation of codes when a coating material was placed over aggregate surface on a flat roof or aggregate was reused without cleaning; however, on cross-examination this witness acknowledged that rerocking was not a code violation if sold as a repair in lieu of new roof. He did not consider the scope of the work shown in Exhibit 1 to be compatible with a minor repair, despite the intent of the parties to so treat this work.

   
   

8. The work on the Sandalwood project was completed in March 1983. Sandalwood was in the process of issuing a contract to replace the shingles on their sloping roofs and in May 1983 Respondent met with Sandalwood Condominium Association as one of the bidders was unhappy with the roofing repairs done by Handyman. Due to brittle shingles the tie-ins were unsatisfactory. An appointment was set up with representatives of the Pinellas Park Building Inspector, Sandalwood representatives, and Handyman representatives. Handyman was also bidding on the shingle replacement contract. On May 26, 1983, this

   meeting was held including the successful bidder (Baker) on the shingle roof replacement contract. The building inspector, Respondent, Baker, and Sandalwood representatives went on the roofs. The building inspector suggested Baker do the tie-ins from the work done by Handyman, for which the latter agreed to pay, but Baker declined. Thereafter, the flashing between the shingle roofs and the flat roofs was installed by Handyman and the shingles by Baker. Exhibit 6 indicates the shingles do not properly cover the flashing.

   
   

9. Respondent's testimony that the work performed by Handyman was exactly what Sandalwood requested them to perform was not rebutted.

   
   

   CONCLUSIONS OF LAW

   
   

10. The Division of Administrative Hearings has jurisdiction over the parties to and the subject matter of these proceedings.

    
    

11. Section 489.129(1), Florida Statutes, provides the board may revoke, suspend, or deny the issuance or renewal of the certificate or registration of a contractor and impose an administrative fine not to exceed $5,000, place the contractor on probation, or reprimand or censure the contractor if the contractor is found guilty of any of the following acts which Respondent has been charged:

    
    

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

    * * *

    (g) Acting in the capacity of a contractor under any certificate or registration 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.

    * * *

    (j) Failure in any material respect to comply with the provisions of this act.

    
    

12. Section 489.117(2), Florida Statutes, provides:

    
    

    (2) Registration allows the registrant to engage in contracting only in the counties, municipalities, or development districts where he has complied with all local licensing requirements and only for the type of work covered by the registration.

    
    

13. The burden of proof is on the Petitioner. Balino v. Department of Health and Rehabilitative Services, 348 So.2d 349 (Fla. 1st DCA 1977). Revocation of license proceedings are penal in nature. State ex rel. Vining v. Florida Real Estate Commission, 281 So.2d 487 (Fla. 1973).

14. Whether the burden of proof is by a preponderance of the evidence or by clear and convincing evidence depends upon the nature of the sanctions sought. Petitioner here seeks to revoke, suspend, or otherwise discipline the license or Respondent. Under these circumstances, Bowling v. Department of Insurance, 394 So.2d 165 (Fla. 1st DCA 1981) requires the evidence weigh as substantially on a scale suitable for evidence as the penalty does on the scale of penalties.

    
    

15. The Supreme Court of the United States holds that the standard of proof is a constitutional due process requirement. In Robinson v. Department of Professional Regulation, Board of Dentistry, 447 So.2d 930 (Fla. 3rd DCA 1984), the Third District Court of Appeal held procedural due process goes to evidentiary standards of proof in license revocation proceedings. This corresponds to the United States Supreme Court's holding in Santowski v. Kramer, 102 S.Ct. 1333, 1396 (1981) that:

    
    

    This court has mandated an intermediate standard of proof--"clear and convincing evidence"--when the individual interests in a state proceeding are "particularly important" and "more substantial than mere loss of money," Addington v. Texas, 441 U.S. 424, 99

    S.Ct. 1808.

    * * *

    Standards of proof, like other "procedural due process rules [,] are shaped by the risk of error in the truth finding process as applied to the generality of cases, nor the rare exceptions." Matthew v. Eldridge, 96 S.Ct. at 907.

    
    

16. Certainly loss of a valuable license to engage in business as a contractor is more than a "mere money judgment"; accordingly, the findings here made are predicated upon a showing of clear and convincing evidence.

    
    

17. From the evidence presented it is clear that Respondent carried out a contract to do roof repairs in Pinellas Park for which he was not licensed, in violation of Section 489.117(2) and 489.129(1)(j) above-quoted. However, it is also uncontradicted that the Sandalwood Condominiums had only recently been placed in the City of Pinellas Park and this fact became known to Respondent after he had executed the contract.

    
    

18. The evidence is insufficient to support a finding that Respondent willfully or deliberately disregarded and violated the applicable building codes. At most, the provisions of the contract are somewhat equivocal as to what Respondent is to do and the evidence presented supports a finding that Handyman performed the repairs requested and desired by Sandalwood.

    
    

19. From the foregoing it is concluded that Respondent is guilty of violating Section 489.129(1)(j) by performing a roofing contract in a municipality for which he was not licensed but, at the time he executed the contract Respondent was under the reasonable belief that Sandalwood was still located in Clearwater where he was licensed. It is further concluded that the evidence is insufficient to sustain a finding that Respondent violated the other provisions of Chapter 489, Florida Statutes, as alleged.

RECOMMENDATION

It is RECOMMENDED that Franklin A. Marciano be issued a letter of reprimand for completing a roofing repair contract in a municipality in which he was not licensed.

DONE AND ENTERED this 19th day of October 1984 at Tallahassee, Florida.

K. N. AYERS Hearing Officer

Division of Administrative Hearings The Oakland Building

2009 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 19th day of October 1984.

COPIES FURNISHED:

Charles Tunnicliff, Esquire Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32301

Frank A. Marciano

11327 43rd Street, North Clearwater, Florida 33520

Fred M. Roche, Secretary

Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32301

James Linnan, Executive Director

Board of Construction Industry Licensing Board Department of Professional Regulation

Post Office Box 2 Jacksonville, Florida 32202

Docket for Case No: 84-002083

Orders for Case No: 84-002083