STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

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

)

Petitioner, )

)

vs. ) CASE NO. 87-3892

)

LOUIS GORDON, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, this cause was heard by Linda M. Rigot, the assigned Hearing Officer of the Division of Administrative Hearings, on December 16, 1987, in Miami, Florida.

Petitioner Department of Professional Regulation, Construction Industry Licensing Board, was represented by Jonathan R. King, Esquire and Peter Fleitman, Esquire, Tallahassee, Florida; and Respondent Louis Gordon represented himself.

Petitioner filed an Administrative Complaint against Respondent alleging a violation of the construction contracting laws, and Respondent timely requested a formal hearing. Accordingly, the issues for determination herein are whether Respondent is guilty of the allegations contained within the Administrative Complaint, and, if so, what disciplinary action should be taken, if any.

Petitioner presented the testimony of Celia Gipson, and the Respondent testified on his own behalf. Additionally, Petitioner's Exhibits numbered 1-6 were admitted in evidence. Both parties submitted post-hearing proposed findings of fact. A ruling on each proposed finding of fact can be found in the Appendix to this Recommended Order.

FINDINGS OF FACT

1. At all times material hereto, Respondent has been a registered roofing contractor having been issued License No. RC 0041149.

   
   

2. Respondent's address of record is Miami, Florida.

   
   

3. The Dade County Construction Trades Qualifying Board is authorized to discipline tradesmen and contractors in Dade County, Florida.

   
   

4. By letter dated September 17, 1986, the Metropolitan Dade County, Florida, Building & Zoning Department advised Respondent that a formal hearing would be held before the Dade County Construction Trades Qualifying Board on 35

   charges arising out of Respondent's roofing and painting activities. A formal hearing was conducted on November 13, 1986, at which time 24 of the 35 charges were dismissed, and the formal hearing was continued.

   
   

5. By letter dated January 21, 1987, the Metropolitan Dade County, Florida, Building & Zoning Department advised Respondent that the continuation of his formal hearing would be held on February 12, 1987, at which time 4 additional charges, enumerated in that letter, would also be heard. At the conclusion of the formal hearing on February 12, 1987, 12 more of the charges were dismissed.

   
   

6. Out of the total of 39 charges filed against Respondent, Respondent was found guilty of 3 charges. The Construction Trades Qualifying Board ordered that the business and personal certificates of Respondent be revoked and that Respondent be fined a total of $5,000.

   
   

7. Respondent was present and had the opportunity to be heard at the formal hearing conducted on November 13, 1986, and on February 12, 1987.

   
   

8. After Respondent was advised of the disciplinary action imposed by the Construction Trades Qualifying Board, he paid the fine imposed upon him. He also made restitution to the two homeowners involved. One of the homeowners was complaining about a leak in the roof that Respondent had installed. Respondent gave the homeowner another new roof at no cost. The other homeowner had refused to pay for the installation of the roof, and Respondent had placed a lien against the property. Respondent cancelled the lien on the property so that that homeowner received the new roof for free.

   
   

9. Respondent's licenses were reinstated by the Dade County Construction Trades Qualifying Board, and Respondent remains in good standing with that local agency. Respondent has been previously disciplined by the Florida Construction Industry Licensing Board as a result of an informal proceeding held on January 9, 1986. The final order from that proceeding assessed a $250 fine against Respondent.

   
   

   CONCLUSIONS OF LAW

   
   

10. The Division of Administrative Hearings has jurisdiction over the subject matter hereof and the parties hereto. Section 120.57(1), Florida Statutes.

    
    

11. The single-count Administrative Complaint charges Respondent with having violated section 489.129(1)(i), Florida Statutes, by having been the subject of "Disciplinary action by any municipality or county, which action shall be reviewed by the state board before the state board takes any disciplinary action of its own." Petitioner has proven that Respondent was the subject of disciplinary action by a county and that Respondent was accorded procedural due process in that local disciplinary action.

    
    

12. Petitioner recommends, therefore, in its proposed recommended order that Respondent's registered roofing license be revoked. Such a recommendation is unduly harsh and inappropriate under the circumstances of this case. The evidence is uncontroverted that Respondent was found guilty on 3 out of 39 charges filed against him, that a fine was imposed against him which he paid, that he made complete restitution to both customers involved in those complaints, and that he is currently licensed and in good standing in Dade County, Florida. To revoke Respondent's state licensure when his license is in

good standing with the local board imposing disciplinary action would be unjust as would be suspension of Respondent's state licensure. Accordingly, imposition of an administrative fine is the appropriate penalty in this cause. Since Respondent has already paid a fine of $5,000 to the local regulatory agency for the same conduct, and given two customers free roofs, a $500 fine is sufficient in this cause.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions of Law, it is,

RECOMMENDED that a Final Order be entered finding Respondent guilty of the allegations contained in the Administrative Complaint filed herein and imposing against him an administrative fine in the amount of $500 to be paid by a date certain.

DONE and RECOMMENDED this 29th day of February, 1988, at Tallahassee, Florida.

LINDA M. RIGOT, 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 29th day of February, 1988.

APPENDIX TO RECOMMENDED ORDER, CASE NO. 87-3892

1. Petitioner's proposed finding of fact numbered 1 has been rejected as not constituting a finding of fact but rather as constituting a conclusion of law. The remainder of Petitioner's proposed findings of fact have been adopted either verbatim or in substance in this Recommended Order.

2. Respondent's proposed findings of fact are contained in a letter which, essentially, is simply an attempt to reargue the facts underlying the local disciplinary action and to establish the fact that he is an excellent roofer. Only those sentences which relate to the restitution made to the two customers by giving them free roofs have been adopted in this Recommended Order, and the remainder of the sentences have been rejected as being irrelevant to the issue involved in this proceeding.

COPIES FURNISHED:

Fred Seely, Executive Director Construction Industry Licensing Board Post Office Box 2

Jacksonville, Florida 32201

Jonathan Ring, Esquire Peter Fleitman, Esquire

Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32399-0750

Louis Gordon

14870 Southwest 205th Avenue Miami, Florida 33187

William O'Neil, Esquire

Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32399-0750

Docket for Case No: 87-003892

Orders for Case No: 87-003892