STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF PROFESSIONAL )

REGULATION, CONSTRUCTION )

INDUSTRY LICENSING BOARD, )

)

Petitioner, )

)

vs. ) CASE NO. 88-1624

)

HANK C. WILLIAMS, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to Notice, an Administrative Hearing was held before William R. Cave, Hearing Officer with the Division of Administrative Hearings, on January 19, 1989, in Tallahassee, Florida. The issue for determination is whether the Respondent's license as a registered roofing contractor in the state of Florida should be revoked, suspended or otherwise disciplined under the facts and circumstances of this case.

APPEARANCES

For Petitioner: Elizabeth R. Alsobrook, Esquire

Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32399-0750

For Respondent: No appearance

STATEMENT OF THE ISSUES

By an Administrative Complaint filed with the Division of Administrative Hearings on April 1, 1988, Petitioner seeks to revoke, suspend or otherwise discipline the license of the Respondent, Hank C. Williams as a registered roofing contractor in the state of Florida. As ground therefor, it is alleged that Respondent, without first obtaining, or assuring that a permit had been obtained, began work on a job and failed to obtain the required inspections on the job in violation of the local ordinance which is a violation of Section 489.129(1)(d)(j) and (m), Florida Statutes.

PRELIMINARY STATEMENT

In support of its charges, Petitioner presented the testimony of Joseph Klosterman:, Charles McDermott, Lana Tutterow and Julius Morris by the filing of their depositions taken prior to the hearing and Petitioner's First Request For Admissions directed to Respondent which were deemed admitted under Rule 1.370, Florida Rules of Civil Procedure, for Respondent's failure to timely respond to the request for admissions or to appear and show good cause why they should not be deemed admitted. Petitioner's exhibits 1, 2, 3 and 4A - 4D were received

into evidence. Respondent failed to appear and offer any testimony or documentary evidence in his behalf.

The Petitioner submitted posthearing Proposed Findings of Fact and Conclusions of Law. The Respondent did not submit any posthearing Proposed Findings of Fact and Conclusions of Law. A ruling on each proposed finding of fact submitted by the Petitioner has been made as reflected in the Appendix to this Recommended Order.

FINDINGS OF FACT

Upon consideration of the evidence submitted at the hearing, the following relevant facts are found:

1. At all times material to this proceeding, Respondent was a licensed registered roofing contractor in the state of Florida with license number RC 0035217, qualifying Hank's Cool Coating & Roofing (Hank's) with the state of Florida, Department of Professional Regulation.

   
   

2. On May 8, 1987, Respondent undertook and completed a roofing job for Pauline Capps in Ft. Pierce, Florida for the sum of $785.

   
   

3. Neither the Respondent nor Pauline Capps ever applied for or obtained a permit for the roofing job for Pauline Capps and no permit was ever issued for this roofing job. By ordinance, St. Lucie County requires a permit be issued before any roofing work is begun in that county and, failure to obtain a permit for a roofing job is a violation of that ordinance.

   
   

4. Neither the Respondent nor Pauline Capps ever requested or obtained an inspection and no inspection was ever performed on the Pauline Capps roofing job. By ordinance, St. Lucie County requires, at a minimum, an initial and final inspection on any roofing work performed in that county and, failure to request the required inspections is a violation of that ordinance.

   
   

5. A registered roofing contractor, even though licensed by the state of Florida, must possess a St. Lucie County, County Certificate of Competency, as a roofing contractor, in order to legally contract roofing work in St. Lucie County, Florida. Respondent's County Certificate of Competency for St. Lucie County, Florida, as a roofing contractor, expired on September 30, 1986, and remained expired during all times material to this proceeding.

   
   

   CONCLUSIONS OF LAW

   
   

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

   
   

7. Section 429.129(1), Florida Statutes, empowers the Florida Construction Industry Licensing Board (Board) to revoke, suspend or otherwise discipline the license of a registered roofing contractor found guilty of any one of the acts enumerated in Section 489.129(1)(a-m), Florida Statutes.

   
   

8. Respondent is charged with the violation of Section 489.129(1)(d)(j) and (m), Florida Statutes, which provides as follows:

   
   

   (d) Willful or deliberate disregard and violation of the applicable building codes

   or laws of the state or any municipalities or counties thereof.

   * * *

   (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. (emphasis supplied).

   
   

9. In disciplinary proceedings, the burden is upon the regulatory agency to establish facts upon which its allegations of misconduct are based. Balino

   v. Department of Health and Rehabilitative Services, 348 So.2d 349 (1 DCA Fla. 1977). Petitioner has sustained its burden to show that Respondent violated the local ordinance and thereby violated Section 489.129(1)(d)(j) and (m), Florida Statutes.

   
   

10. Pursuant to Sections 489.105(4) and 489.119, Florida Statutes, Respondent, as qualifying agent for Hank's, had the authority and responsibility to act for, and to supervise the repair of, Pauline Capps' roof. And, in that capacity, he was responsible for assuring that a permit for the job had been obtained and that the necessary inspections had been made by the proper building authority as required by the St. Lucie County Code of Ordinances, Building and Building Regulations.

RECOMMENDATION

RECOMMENDED that the Board enter a Final Order revoking the Respondent, Hank C. Williams' registered roofing contractor's license, number RC 0035217.

RECOMMENDED this 20th day of February, 1989, in Tallahassee, Leon County, Florida.

WILLIAM R. CAVE

Hearing Officer

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 20th day of February, 1989.

APPENDIX TO RECOMMENDED ORDER, CASE NO. 88-1624

The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on all of the Proposed Findings of Fact submitted by the Petitioner in this case.

Rulings on Proposed Findings of Fact Submitted by the Petitioner

1. Not necessary to this Recommended Order.

2. Adopted in Finding of Fact 1.

3. Adopted in Finding of Fact 2.

4. Adopted in Finding of Fact 3.

5. Adopted in Finding of Fact 4.

6.- 7. Adopted in Findings of Fact 3 and 4.

8. Adopted in Finding of Fact 5.

9.- 10. Rejected as being a restatement of testimony and not a finding of fact.

COPIES FURNISHED:

Fred Seely, Executive Director Construction Industry Licensing Board Department of Professional Regulation Post Office Box 2

Jacksonville, Florida 32201

Kenneth Easley, Esquire General Counsel

Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32399-0750

Elizabeth R. Alsobrook, Esquire Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32399-0750

Mr. Hank C. Williams

334 Notlem Drive

Ft. Pierce, Florida 34982 and

302 Dixon Drive

Ft. Pierce, Florida 33482

Docket for Case No: 88-001624

Orders for Case No: 88-001624