STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF PROFESSIONAL ) REGULATION, CONSTRUCTION )

INDUSTRY LICENSING BOARD, )

)

Petitioner, )

)

vs. ) CASE NO. 87-5584

)

JOHN C. GREER, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a hearing was held in this cause on April 5, 1988, in Tampa, Florida, before Diane A. Grubbs, a Hearing Officer of the Division of Administrative Hearings.

APPEARANCES

For Petitioner: David L. Swanson, Esquire

Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32399-0750

For Respondent: Mark E. Timmes, Esquire

Norris, McMichael, Wilcox & Mora, P.A. Suite 1870, Barnett Plaza

101 East Kennedy Boulevard Tampa, Florida 33602-5133

ISSUES

1. Whether respondent committed gross negligence, incompetence, or misconduct in connection with the construction of the Lagos home;

   
   

2. Whether respondent failed to properly supervise the job site activities during the construction of the home; and

   
   

3. If so, whether respondent's license should be suspended or revoked, or whether some other penalty should be imposed.

BACKGROUND

On November 2, 1987, petitioner filed an Administrative Complaint which alleged that respondent was a registered roofing contractor, that the contracting business respondent was associated with and responsible for undertook a contracting job which consisted of building Peter N. Lagos a home in Tampa, Florida, for a price of $225,048. The complaint alleged that respondent gave a guarantee to the customer and thereafter failed to reasonably honor the

guarantee, and alleged that respondent committed gross negligence, incompetence, or misconduct in connection with the job in violation of Section 489.129(1)(m), Florida Statutes.

Respondent disputed the allegations of fact contained in the Administrative Complaint and requested a hearing pursuant to Section 120.57(1), Florida Statutes. On December 21, 1987, petitioner referred the matter to the Division of Administrative Hearings for further proceedings.

At the hearing, petitioner's motion to amend the administrative complaint was granted with no objection from respondent. The complaint was amended by deleting paragraph 5, which alleged that respondent failed to reasonably honor the guarantee, and substituting the allegation that respondent failed to properly supervise the job site activities in violation of Sections 489.129(1)(m) and (j), 489.119, and 489.105(4), Florida Statutes. The parties also stipulated that the license number listed in the complaint is the license number currently held by respondent but that the license he held at the time material to the complaint was that of a registered residential contractor, license number RR0030014, and that respondent was never licensed as a registered roofing contractor. The parties also stipulated that the complaint was in error when it alleged that respondent built the house for the customer in that the home was purchased after it was constructed, and there was never a construction contract for the home.

Petitioner presented the testimony of Peter Lagos, the purchaser of the home; Peter Scott, an expert on the proper methods of construction; Glenn Kirkland, an expert on the proper methods of construction and duties and responsibilities of a contractor; and Joseph Belt, an expert on the proper methods of construction and the duties and responsibilities of a contractor. Petitioner's exhibits 1-3 were introduced into evidence. Respondent presented the testimony of George Phillipson, an expert in the identification and repair of building roofing leaks; and the respondent testified on his own behalf as an expert on proper building procedures.

A transcript of the proceedings has been filed, and both parties filed proposed findings of fact and conclusions of law. A ruling on each of the proposed findings of fact is contained in the Appendix to this order.

FINDINGS OF FACT

1. At all times material to this complaint, respondent was a registered residential contractor in the State of Florida, having been issued license number RR0030014, and served as the qualifying agent for John C. Greer, Incorporated. Respondent is now a certified contractor holding license number CB-C035168.

   
   

2. In December, 1984, or January, 1985, John C. Greer, Inc., completed construction of a residential home located at 13907 Shady Shores Drive in Tampa, Florida. The respondent was the qualifying agent for John C. Greer, Inc., during the construction of the home and as such was responsible for its proper construction.

   
   

3. On September 28, 1985, approximately nine months after the home was completed, Peter N. Lagos and Carol B. Lagos signed an agreement to purchase the home from John C. Greer, Inc., for $225,048.80. Respondent was not involved in the sale of the home. Indeed, respondent had left John C. Greer, Inc., in late

   May or early June of 1985 and Cathy Greer, respondent's wife and a certified residential contractor, was in charge of the business operations.

   
   

4. The home is a two-story house consisting of 2700 or 2800 square feet of living space and a two-car garage. The first floor is concrete block construction and the second floor is frame construction with cedar siding. At the rear of the house on the first floor there is a lanai, or porch, which is covered by a flat-deck roof system. One end of the flat-deck roof system

   serves a dual function. It is the roof for the lanai and for a portion of the breakfast nook which extends into the lanai, and it is the floor for the balcony, or deck, which is connected to the second floor master bedroom.

   Sliding glass doors provide access from the master bedroom onto the deck.

   
   

5. The portion of the roof which also functions as a deck was installed and intended to be perfectly flat with a zero pitch so that the deck could be utilized. The remainder of the roof system has a slight pitch.

   
   

6. Before purchasing the home, Mr. Lagos noted that there were one or two fist-sized holes in the lanai ceiling and smaller holes in the breakfast nook ceiling by the air conditioning duct. He also observed stains on the ceiling by the recessed lights in the breakfast nook. The second floor deck had standing water near the sliding glass doors and also in a corner of the deck. Mr. Lagos was advised that a sheetrock man would repair the holes and everything would be corrected. Mr. Lagos reinspected the home prior to closing and was apparently satisfied with the repair work that was done. The Lagos' closed on the house on October 23, 1985, and moved in the next day.

   
   

7. On the first night the Lagos' were in their new home it rained and water came out of the air conditioning register and through the lights in the breakfast nook. Mr. Lagos contacted John C. Greer, Inc. to correct the problem. Repairs were made in the first week of November, 1985, and the leaking stopped. The Lagos' had no apparent problem with leakage between November of 1985 and December of 1986.

   
   

8. At the end of December, 1986, there was a substantial amount of rain. Mr. Lagos noticed that the ceiling in the lanai started to show signs of strain and buckling, and intermittently a small amount of water would seep through the breakfast nook ceiling near the lights. Mr. Lagos notified the Greers of the problem.

   
   

9. By December, 1986, when Mr. Lagos notified the Greers of the problem, John C. Greer, Inc., had been dissolved. The corporation had built its last house in 1985 and had been dissolved after the one-year warranty period on the homes built by the corporation had expired. Therefore, when the problem with the Lagos house occurred there was no corporation, no qualifying agent, no liability insurance and no workers compensation insurance. Since there was no way for the corporation itself to correct the problem, the Greers advised Mr. Lagos to contact some contractors and get estimates of what it would cost to correct the problem. 1/

   
   

10. Mr. Lagos contacted Joseph Belt and Glen Kirkland, who are both certified general contractors, to provide estimates for the cost of repair. However, the repair work was ultimately performed by George Phillipson in 1988 at no cost to the Lagos'. There has been no further leaking and Mr. Lagos testified that Phillipson did "a beautiful job." 2/

11. There were several potential causes of the leak: (1) water ponding on the second story flat deck lanai roof; (2) improperly installed flashing; (3) water intrusion through the cedar siding and the lack of a vapor barrier behind the cedar siding.

    
    

12. Initially, it was thought that there might be a leak in the roof itself or that the leak was caused by improper drainage of water from the roof. In March of 1987, 3/ Mr. Peter Scott, a professional engineer, inspected the flat deck roof while he was at the Lagos home to perform other work. Although it hadn't rained for two or three days before Mr. Scott observed the roof, there was still standing water on the roof deck. Regardless of any leaking, standing water on a roof is a problem because eventually the water will cause the roof membrane to deteriorate. Whether the form of the roof construction is ridge, pitch or flat, water should run to a drainage point where it will be collected and conveyed to the ground. Mr. Scott was of the opinion that a contractor building a flat deck should be especially concerned about storm water drainage. Besides the eventual destruction of the membrane, if water continues to collect on a roof it can rise above the flashing and cause leaking. However, in this case there was no evidence to establish that the standing water ever rose to that level.

    
    

13. Although the ponding of the water on the second floor roof deck presented a problem, it was not the cause of the leak. The roof was tested by flooding and no leaking occurred.

    
    

14. Mr. Kirkland testified that it appeared that some flashing had been improperly installed However, Mr. Kirkland admitted that when he inspected the roof deck area, someone had already taken apart the wall section and flashing. Therefore, he did not necessarily observe the flashing as it originally had been installed. Mr. Belt, who had the cedar siding removed to make an inspection, testified that there was no problem with the flashing and that the flashing appeared to be in reasonable shape. Mr. Phillipson also found that there was no problem with the flashing. Other than Mr. Kirkland's testimony that some flashing had been improperly installed, which testimony is rejected, there was no evidence suggesting that there was a problem with the flashing.

    
    

15. The evidence established that the leakage of water into the house was caused by rainwater coming through the cedar siding. The cedar siding was attached directly to the wood frame. Both Mr. Kirkland and Mr. Belt were of the opinion that a vapor barrier should have been installed behind the siding. A vapor barrier is a film or sheeting that is placed over the frame and above the flashing. However, there was no code provision requiring that a vapor barrier be used in conjunction with the siding; the only code requirement was that the wall be moisture tight.

    
    

16. George Phillipson inspected the Lagos home in early January, 1988. He observed standing water about a half an inch deep in an area approximately two feet by three feet in one corner of the deck roof. There was some siding separation, and the ceiling of the lanai showed indications of leakage. The ceiling was made of sheetrock, or greenboard. There was a brown stain about a foot in diameter on the ceiling, and in front of it the tape seam had separated. Because there were no signs of buckling, which would have been present if there had been a great deal of water intrusion, Phillipson concluded that he should look for a minor defect or irregularity as the source of the leak. Phillipson removed a two-foot by four-foot section of the sheetrock and examined the area

    of leakage from below. He also had the roof pulled back to check the plywood base. The plywood showed no signs of damage and the integrity of the built-up roofing was good.

    
    

17. From his investigation of the house, Mr. Phillipson concluded that the leak was due to water coming through the cedar siding. Mr. Phillipson was of the opinion that the cedar had shrunk to some degree causing the caulking at the joints to separate. In a driving rain, water could get through the siding and into the wall cavity. When the deck was constructed a sill was placed on the plywood, including the inside of the wall cavity, and nailed down. Mr. Phillipson concluded that the water coming through the siding worked its way down to a nail which had pierced the sill and plywood and dripped down through the nail hole to the ceiling below.

    
    

18. Mr. Phillipson concluded that the standing water on the roof deck had nothing to do with the leak. The standing water was located across the deck, approximately ten feet from the area where the leak occurred. From the location of the standing water, Mr. Phillipson concluded that it might have been caused by a ceiling joist failing to settle. Phillipson explained that often a piece of lumber is slightly bowed. The board is placed with the arch up, so that the middle will be higher. Normally, the board will settle or level itself. Sometimes, however, due to a knot in the center of the board or some other reason, the board does not settle and the area above the middle of the board remains slightly elevated.

    
    

19. George Phillipson's testimony regarding the cause of the leak was the most persuasive of all the witnesses. He examined the problem areas more thoroughly than either Mr. Kirkland or Mr. Belt and he provided an analysis of the problems. Mr. Kirkland didn't do an in-depth analysis of the problem, and there was no need for him to do so. Although he looked at the house and prepared an estimate for Mr. Lagos, he admitted that his estimate was not based on any analysis of what was necessary to correct the problems, but was based on "all the things that Pete [Lagos] had requested us to perform." (T-62) When Kirkland was asked whether all the work included in the estimate was necessary he responded, "It would have brought the house up to the standards that Pete was looking for. At the time he explained to me what he'd wanted . . . . I don't think that it would have been necessary to do that to correct just that leak problem, to do everything that the proposal had covered. But he did ask me specifically for that. He pointed out exactly what he wanted me to do." (e.s.)(T-64) Since Mr. Lagos told Mr. Kirkland exactly what was to be done, there would have been no reason for Mr. Kirkland to analyze the source of the leakage or the reason for the ponding. Indeed, at one point Mr. Kirkland indicated that the leak was coming from the area of the roof where water was ponding, and he also suggested that there was a problem with the flashing. The totality of the evidence shows that Mr. Kirkland was incorrect on both of these theories. Further, Mr. Kirkland admitted that his opinion that work had not been completed properly was based on information relayed to him by Mr. Lagos rather than his own observations. (T-55)

    
    

20. Mr. Belt's and Mr. Kirkland's testimony concerning the correct pitch for the roof is not accepted. Mr. Belt was of the opinion that the roof was improperly constructed because it did not have a minimum slope of 1/4" to one foot. Mr. Belt believed that this slope was required by code. However, the code section requiring a minimum slope of 1/4" to a foot referred only to liquid applied coatings. With other roofing materials a zero slope is acceptable. A liquid applied coating was not used on the Lagos roof, and it was not improper to construct the roof with a zero pitch.

21. Nevertheless, there was clearly a problem with the drainage on the roof. Although the roof was intended to be a flat roof with zero pitch, at least a portion of the roof had a negative pitch slope back toward the house. Water did not drain properly. Respondent testified that the amount of ponding fell within industry standards and testified that the Home Buyers' Warranty Booklet (REx.#1) and the Home Owners Warranty Corporation Insurance/Warranty Documents (REx.#2) were the commonly relied upon performance standards in the industry. However, the Home Buyers' Warranty Booklet states that "[s]tanding water on flat built-up roof" is a deficiency and that the construction standard is that "water should drain from flat built-up roof, with minimum collecting." The Home Owners Warranty document states that "[s]tanding water on flat roof" is a possible deficiency and that the performance standard is, "[w]ater shall drain from flat roof except for minor ponding immediately following rainfall or when roof is specifically designed for water retention."

    
    

22. The ponding water on the roof deck was a persistent problem. Mr. Scott observed standing water two or three days after it had rained. There was water ponding on the roof when Mr. Lagos first looked at the house in 1985 and there was a standing pond of water on the roof when Mr. Phillipson inspected the house at the beginning of 1988. The area of negative pitch was observed by Mr. Kirkland and Mr. Belt. The standing water on the roof was a deficiency and did not meet construction performance standards. With closer supervision this deficiency could have been prevented or corrected.

    
    

23. The other problem with the house was that it leaked. The leak was a minor leak and was sporadic. It did not cause any damage except the staining of the lanai ceiling. Had vapor barriers been installed behind the cedar siding, the leak probably wouldn't have occurred. Nevertheless, there was no requirement that vapor barriers be installed behind the cedar siding. Cedar is quite suitable for an exterior wall and normally would be sufficient in and of itself to prevent the intrusion of water. Further, the placement of a vapor barrier directly behind the cedar siding could result in the cedar deteriorating more quickly. At the time of construction, it was not foreseeable that the leak which ultimately occurred would occur. Therefore, the installation of the cedar siding directly over the studs does not reflect incompetence or negligence in the construction of the home.

    
    

24. Respondent's practice was to be on every construction job for which he was responsible at least once a week. Although this amount of time, in the abstract, may be sufficient to properly supervise construction activity, in this case the construction activities were not supervised as closely as they should have been. Respondent's own testimony revealed that he was not fully aware of the manner in which the house was constructed. He stated that he did not "know for a fact" whether or not the siding was installed directly over the studs.

    (T-105) He stated that he had not seen it. Although respondent stated that there was an effort to ensure that the deck would be flat, so that it could be utilized to the maximum, it is apparent that respondent failed to supervise the work closely enough to ensure that there was no negative pitch to the roof and that water would drain properly.

    
    

25. At the time of the hearing, respondent had been selected Home Builder of the Year in Hillsborough County by the 1200 member builders' association. There was no evidence that respondent had ever had any prior complaints made against him or any disciplinary action taken against him.

    CONCLUSIONS OF LAW

    
    

26. The Division of Administrative Hearings has jurisdiction over the subject matter of and the parties to this proceeding. Section 120.57(1), Florida Statutes (1987).

    
    

27. Section 489.129(1), Florida Statutes (1987), gives the Construction Industry Licensing Board the power to take disciplinary action against a licensed contractor and provides, in pertinent part, as follows:

    
    

    1. 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 a contractor on probation, or reprimand or censure a contractor if the contractor, or if the business entity or any general partner, officer, director, trustee, or member of a business entity for which the contractor is a qualifying agent, is found guilty of any of the following acts:

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

       (m) Upon proof that the licensee is guilty of fraud or deceit or of gross negligence, incompetency, or misconduct in the practice of contracting.

       
       

28. By its amended Administrative Complaint, petitioner alleged that respondent committed gross negligence, incompetence, or misconduct in connection with the construction of the Lagos house, in violation of Section 489.129(1)(m), and alleged that respondent failed to properly supervise the job site activities in violation of Subsections 489.129(1)(m) and (j), Florida Statutes, and Sections 489.119 and 489.105(4), Florida Statutes.

    
    

29. Petitioner has the burden of proving by clear and convincing evidence that the respondent committed the acts alleged. Ferris v. Turlington, 510 So.2d 292 (Fla. 1987).

    
    

30. Petitioner failed to establish by clear and convincing evidence that respondent was guilty of gross negligence, incompetency, or misconduct in the practice of contracting. The evidence did not establish that it was either negligent or incompetent to attach the cedar siding directly to the frame of the house. The fact that there was a minor and sporadic leak which became evident substantially after the home was completed, does not, in and of itself, establish that there was any negligence or incompetency in the construction of the home.

    
    

31. The evidence did establish that the deck roof was deficient in that water did not properly drain from the deck in an area that had a slight negative pitch. However, this deficiency was not a result of gross negligence or incompetence. "Gross negligence" has been defined by the Supreme Court as "the omission or commission of an act with a conscious indifference to the consequences so far as other persons are concerned." Faircloth v. Hill, 85 So.2d 870, 872 (Fla. 1956). The evidence presented did not establish that the ponding resulted from gross negligence in the construction of the Lagos home. "Incompetency" refers to inadequate knowledge, ability, or skill, and there was

    no evidence to support a conclusion that respondent lacked the knowledge or skill to properly construct the home. Finally, "misconduct" is defined as "intentional wrongdoing; secif: deliberate violation of a law or standard esp. by a government official: Malfeasance." Webster's Ninth New Collegiate Dictionary (1984). There was no evidence of intentional wrongdoing or any deliberate violation of a construction standard. Therefore, petitioner failed to establish that respondent is subject to discipline pursuant to Section 489.129(1)(m) , Florida Statutes.

    
    

32. The respondent was the qualifying agent for John C. Greer, Inc., at the time of the construction of the Lagos house. Section 489.119 requires an applicant who proposes to engage in construction as a corporation or other business entity to apply through a qualifying agent. The qualifying agent must be legally qualified to act for the business entity in all matters connected with the contracting business and must have authority to supervise the construction undertaken by the business. The qualifying agent is the person that has "the requisite skills, knowledge, and experience, and has the responsibility, to supervise, direct, manage, and control the contracting activities of the business entity." Section 489.105(4), Florida Statutes.

    
    

33. The obvious purpose of Section 489.119, requiring a corporation to apply through a qualifying agent, and Section 489.105(4), which sets forth the responsibilities and qualifications of a qualifying agent, is to ensure that construction projects undertaken by a corporation are supervised by a licensed individual. These sections place upon the qualifying agent a statutorily imposed duty to properly supervise the construction activities of the corporation. Alles v. Department of Professional Regulation, Construction Industry Licensing Board, 423 So.2d 624 (Fla. 5th DCA 1982). The evidence presented in this case established that respondent did not adequately supervise the construction of the Lagos home. The problem with the pitch and drainage on the deck roof would have been noticed and prevented or corrected with closer supervision. Therefore, petitioner has established that respondent failed in a material respect to comply with the provisions of Chapter 489, in violation of Section 489.129(1)(j), by failing to properly supervise the construction activities of John C. Greer, Inc., in the construction of the Lagos home.

    
    

34. Rule 21E-17.001, Florida Administrative Code, sets forth the normal penalty ranges for specified violations. There are no guidelines for the penalty to be imposed for a qualifying agent's failure to properly supervise the activities of the business entity Rule 21E-17.002 sets forth aggravating and mitigating circumstances. In considering those factors, it is apparent that no aggravating factors are present in the instant case. The customer has suffered no monetary or other damage, there were no violations of building codes, the problems with the home have been corrected, the ponding of water on the roof was a minor deficiency which caused no actual damage, there was no danger to the public, and the evidence did not reveal a complete lack of supervision of the job site activities. There was no evidence presented of any prior complaints against respondent.

RECOMMENDATION

Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that a final order be entered finding that respondent failed to

properly supervise the job site activities of John C. Greer, Inc., in the

construction of the Lagos home and reprimanding respondent for this offense.

DONE AND ORDERED this 20th day of July, 1988, in Tallahassee, Leon County, Florida.

DIANE A. GRUBBS

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 20th day of July, 1988.

ENDNOTES

1/ Because the written warranty had expired, Mr. Greer did not believe that the Greers necessarily had any obligation to have the repairs done; however, he was willing to try to resolve the problem.

2/ Although Phillipson inspected the home and determined what needed to be done to make the repairs necessary to satisfy Mr. Lagos, the actual work was apparently performed by Curtis Moore Construction under the direction of Phillipson.

3/ Mr. Scott testified that he looked at the roof in March of 1986; however, he also mentioned that Mr. Lagos was at that time complaining of leaks which appeared to be coming from the roof-deck system. Since Mr. Lagos had no problem with leakage from November, 1985, to December, 1986, Mr. Scott must have viewed the deck in March, 1987.

APPENDIX

Rulings on petitioner's proposed findings of fact:

1 and 2. Accepted generally though no cite to record.

3. Rejected for lack of competent evidence to support the finding and no cite to record.

4-5. Accepted generally though no cite to record.

1. Accepted generally, as stated in paragraph 8.

2. Accepted generally, except as to date (see footnote 3).

3. Accept that this proposed finding states Kirkland's opinion and observations; however, Kirkland's observations regarding flashing and vapor barrier rejected for reason stated in paragraph 14.

4. Accepted generally as to what Belt opined; however, Belt's opinion as to installation of vapor barrier and negligence or incompetency rejected.

5. Accepted.

6. Rejected insofar as it suggests that respondent's testimony concerning installation of siding without vapor barrier should be rejected. Further, HUD

   document was introduced as part R.Ex.#3.

7. Rejected in that respondent admitted only that "there may be an occasional need for a topical moisture barrier if the outside wall system itself doesn't do a

   100 percent job of being your moisture barrier." At the time of construction respondent thought that the wall would be waterproof. Therefore, finding is not relevant.

8. Accepted to the degree that respondent's testimony as to extent or location of ponding was not relied upon.

9. Rejected, I found Mr. Phillipson to be the most competent witness.

15-16. Accepted as true but irrelevant to issues presented.

Tivac is not a "vapor barrier" and there was no evidence presented establishing its availability in 1984.

Respondent's proposed findings of fact:

1. Rejected as finding of fact as unnecessary. 2-3. Accepted generally.

1. Accepted in "Background" section.

2. Accepted generally, respondent recognized as an expert in Background section.

7-15. Accepted generally.

16. Accepted that vapor barriers not required behind cedar siding. The distinction between "vapor barriers" and "moisture barriers" was never described. There were no "recommended construction diagrams" introduced into evidence.

17-19. Accepted generally that ponding only occurred on part of the roof deck.

1. Accepted with greater detail in paragraph 21.

2. Accepted.

22-23. Rejected, Mr. Phillipson opined that the cause of the ponding was probably due to the bow in a joist which failed to settle. Thus the area of negative pitch would have been noticeable at the time of construction. Further, there was no evidence that any settling had occurred.

24. Accepted, though price not included in the Recommended Order because it was not relevant to the issues.

COPIES FURNISHED:

DAVID L. SWANSON, ESQUIRE

DEPARTMENT OF PROFESSIONAL REGULATION

130 NORTH MONROE STREET TALLAHASSEE, FLORIDA 32399-0750

MARK E. TIMMES, ESQUIRE

MORRIS, MCMICHAEL, WILCOX & MORA, P.A. SUITE 1870, BARNETT PLAZA

101 EAST KENNEDY BOULEVARD TAMPA, FLORIDA 33602-5133

MR. FRED SEELY EXECUTIVE DIRECTOR

CONSTRUCTION INDUSTRY LICENSING BOARD POST OFFICE BOX 2

JACKSONVILLE, FLORIDA 32201

WILLIAM O'NEIL, III, ESQUIRE DEPARTMENT OF PROFESSIONAL REGULATION

130 NORTH MONROE STREET TALLAHASSEE, FLORIDA 32399-0750

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

AGENCY FINAL ORDER

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

STATE OF FLORIDA DEPARTMENT OF PROFESSIONAL REGULATION CONSTRUCTION INDUSTRY LICENSING BOARD

DEPARTMENT OF PROFESSIONAL REGULATION,

Petitioner,

-vs- CASE NO.: 85097

DOAH CASE NO.: 87-5584

JOHN C. GREER, JR.,

License Number: CB C035168

Respondent.

/

FINAL ORDER

THIS MATTER came before the Construction Industry Licensing Board pursuant to Section 120.57(1)(b)(9), Florida Statutes, on October 13, 1988, in Tampa, for consideration of the Recommended Order (a copy of which is attached hereto and incorporated herein by reference) issued by the hearing officer in the above styled case. The Petitioner was represented by Douglas A. Shropshire. The Respondent was neither present nor represented by counsel.

Upon consideration of the hearing officer's Recommended Order, including the exceptions filed and the arguments of the parties and after a review of the complete record in this matter, the Board makes the following findings:

FINDINGS OF FACT

1. The hearing officer's findings of fact are hereby approved and adopted.

   
   

2. There is competent, substantial evidence to support the hearing officer's findings of fact.

CONCLUSIONS OF LAW

1. The Board has jurisdiction of this matter pursuant to the provisions of Section 120.57(1), and Chapter 489, Florida Statutes.

   
   

2. Respondent's exceptions numbered 3 in his filed exceptions to the hearing officer's Recommended Order is rejected as unsupported by the record, the remaining exceptions filed are approved and adopted and fully incorporated herein by reference.

   
   

3. The hearing officer's conclusions of law, are hereby approved and adopted except where they are in contradiction to those exceptions referenced to in paragraph 2 above filed by the Respondent and adopted by this Board.

3. The Board finds that there is competent substantial evidence to support the Hearing Officer's findings and conclusions of law.

WHEREFORE, IT IS HEREBY ORDERED AND ADJUDGED:

That the above-referenced Administrative Complaint be and hereby is DISMISSED.

Pursuant to Section 120.59, Florida Statutes, the Parties are hereby notified that they may appeal this Order by filing one copy of a Notice of Appeal with the Clerk of the Department of Professional Regulation, 130 N. Monroe Street, Tallahassee, Florida 32301, and by filing the filing fee and one copy of the Notice of Appeal with the District Court of Appeal within thirty

(30) days of the effective date of this Order.

This Order shall become effective upon filing with the Clerk of the Department of Professional Regulation.

DONE AND ORDERED this 1st day of December, 1988.

E. E. SIMMONS, CHAIRMAN Construction Industry Licensing Board

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a true and correct copy of the foregoing Final Order has been provided by certified mail to

John C. Greer, Jr.

2115 Magdalene Manir Drive Tampa, Florida 33613

and by hand delivery/United States Mail to the Board Clerk, Department of Professional Regulation and its Counsel, 130 North Monroe Street, Tallahassee, Florida 32301, on or before 5:00 p.m., this 12th day of December, 1988.

Docket for Case No: 87-005584

Orders for Case No: 87-005584