STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

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

)

Petitioner, )

)

vs. ) CASE NO. 89-3291

)

JOHN W. FARRALL, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, Veronica E. Donnelly, held a formal hearing in the above-styled case on November 15, 1989, in Fort Myers, Florida.

APPEARANCES

For Petitioner: Jack M. Larkin, Esquire

806 Jackson Street

Tampa, Florida 33602

For Respondent: John W. Farrall, pro se

316-2 Tudor Drive

Cape Coral, Florida 33904 STATEMENT OF THE ISSUES

Whether the Respondent was validly disciplined by a local government, which causes Respondent to be in violation of Section 489.129(1)(i), Florida Statutes.

Whether disciplinary action should be taken against Respondent's certified roofing contractor's license and general contractor's license based upon the alleged violation of Section 489.129(1)(i), Florida Statutes, as contained in the Administrative Complaint.

PRELIMINARY STATEMENT

The Department of Professional Regulation (the Department) filed an Administrative Complaint before the Construction Industry Licensing Board (the Board) alleging that Respondent, John W. Farrall (Farrall) had violated state law in his capacity as a licensed general contractor and a licensed certified roofing contractor. The Department seeks to have disciplinary sanctions imposed on Respondent Farrall.

In an Election of Rights Form signed February 2, 1989, the Respondent Farrall disputed the allegations of fact contained in the Administrative Complaint and requested a formal hearing.

During the hearing, the Petitioner called one witness and introduced two exhibits into evidence. The Respondent testified in his own behalf and submitted one exhibit, which was admitted into evidence.

A transcript of the hearing was not ordered. Both parties filed proposed recommended orders. Rulings on the proposed findings of fact are in the Appendix to the Recommended Order.

It was represented to the Hearing Officer during the proceedings that the Department had offered to favorably consider the Respondent's assistance in the criminal case against an officer in the roofing company as mitigation in his own disciplinary case. As the attorney presently handling the case was unaware of these negotiations, the Respondent was given additional time to locate the previous attorney for the Department in order to resolve the matter.

When the Respondent filed his proposed recommended order, he informed the Hearing Officer by letter that he had obtained the prior attorney's name but had been unable to locate him. The Respondent was granted additional time to locate the attorney, and the attorney's current business telephone number was provided by the Hearing Officer in the order. As the extension of time for providing the possible mitigation has expired without a response from the Respondent, such matters were not considered in the Recommended Order.

FINDINGS OF FACT

1. At all times material to these proceedings, Respondent Farrall was licensed as a certified general contractor in Florida, and held license number CG C040234. In addition, the Respondent was licensed as a certified roofing contractor and held license number CC C024398. Mr. Farrall was the qualifying agent for Sunmaster Roofing Company.

   
   

2. On May 25, 1987, Sunmaster Roofing Company entered into a contract with Clarence A. Miller and Emily Miller to reroof their residence in Naples, Florida.

   
   

3. After the project was completed, Mr. and Mr. Miller filed a complaint with the Collier County Contractors' Licensing Board on December 7, 1987. Essentially, the complaint alleged as follows: 1) that the contractor abandoned the job without adequately completing construction; 2) that the roof materials were incorrectly installed; 3) that the contractor failed to obtain a building permit; and 4) that the contractor failed to adequately perform the contract due to his failure to correct faulty workmanship on the job.

   
   

4. On December 11, 1987, copies of the complaint and a notice of hearing was sent to Respondent Farrall by certified mail to two different addresses. The items were promptly received at both locations.

   
   

5. On January 15, 1988, the Respondent acknowledged that he was personally aware of the hearing scheduled for January 20, 1988. The Respondent requested a continuance until after January 29, 1988, because he had to attend to urgent family matters which required his presence in Canada.

   
   

6. A continuance was not granted, and the hearing proceeded as scheduled. The Respondent was aware that the hearing was not continued prior to his departure for Canada.

7. On January 20, 1988, a hearing was held, and the local board received evidence regarding the Miller complaint.

   
   

8. As a result of the hearing, the local board found that the Respondent violated specific county ordinances in the following manner: by abandoning the job without legal excuse; disregarding or violating the building code by failing to obtain a building permit; and by failing to make good, faulty workmanship obviously performed in evasion of performance of the contract.

   
   

9. The Respondent was disciplined by the Collier County Contractors' Licensing Board on January 20, 1988. His permit privileges were suspended in Collier County until the contractor makes restitution and appears before the Board for reinstatement.

   
   

10. The Respondent was given fifteen days to appeal the decision.

    
    

11. The Respondent personally received a copy of the disposition of the hearing by certified mail on January 28, 1988. An appeal was not taken of the decision.

    
    

    CONCLUSIONS OF LAW

    
    

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

    
    

13. Section 489.129, Florida Statutes, empowers the Florida Construction Industry Licensing Board to revoke, suspend, or otherwise discipline the licenses of the Respondent if he is found to be guilty of any of the acts enumerated in Section 489.129, Florida Statutes.

    
    

14. A proceeding to discipline a license is penal in nature. Bach v. Florida Board of Dentistry, 378 So.2d 34 (Fla. 1st DCA 1980). In such contests, the Petitioner has the burden of proof and must establish by clear and convincing evidence that the Respondent committed the violations set forth in the Administrative Complaint. Ferris v. Turlington, 510 So.2d 292 (Fla. 1987).

    
    

15. In this proceeding, the Respondent is charged with having violated Section 489.129(1)(i), Florida Statutes, because of a disciplinary action taken by the Collier County Contractors' Licensing Board. When a licensee is charged with a violation of state law for having been disciplined by a municipality or county, the statute requires that the state board review the underlying local action.

    
    

16. While it is clear from the evidence presented at hearing that the Respondent was found to have violated Collier County Ordinance 85-42, Sections 4.1.3, 4.1.6, and 4.1.11, there was no showing that the discipline attempted to be imposed by the Collier County's Contractors' Licensing Board was authorized in the ordinances. The local board's jurisdiction to impose discipline was not established in the evidence presented at hearing, and no authority to impose discipline was cited in the local board's written decision rendered on January 20, 1988. Without evidence of the local's board's authority, a determination cannot be made that the local board was authorized to impose discipline.

    
    

17. As the proof adduced at the formal administrative hearing did not establish that the Respondent was validly disciplined on the local level, the Respondent cannot be found guilty of the violation which was the subject of the

administrative hearing. Department of Professional Regulation, Construction Industry Licensing Board v. Charles R. Schelah, Case No. 88-3442 (R.O. 6-9-89).

RECOMMENDATION

Based upon the foregoing, it is recommended that the charges set forth in the Administrative Complaint against the Respondent, John W. Farrall, in Case No. 89-3291 be DISMISSED.

RECOMMENDED this 15th day of February, 1990, in Tallahassee, Leon County, Florida.

VERONICA E. DONNELLY

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 15th day of February, 1990.

APPENDIX TO RECOMMENDED ORDER, CASE NO. 89-3291

The proposed findings of fact set forth in Petitioner's proposed recommended order are addressed as follows:

1. Rejected. Irrelevant to the charges filed.

   
   

2. Rejected. Irrelevant to the charges filed.

The proposed findings of fact filed by the Respondent are addressed as follows:

1. Accept the first two sentences. See HO #1. The rest of paragraph 1 is rejected as improper argument which is not based upon material evidence presented at hearing.

   
   

2. Accepted. See HO #2.

3. Rejected. The issue in this proceeding involves the discipline by the local government board and not the underlying facts upon which the board based its findings. Immaterial.

COPIES FURNISHED:

Jack M. Larkin, Esquire 806 Jackson Street

Tampa, Florida 33602

John W. Farrall 316-2 Tudor Drive

Cape Coral, Florida 33904

Fred Seely, Executive Director Construction Industry Licensing

Board

111 East Coastline Drive, Room 504 Jacksonville, Florida 32202

Kenneth E. Easley, Esquire General Counsel

Department of Professional Regulation 1940 North Monroe, Suite 60

Tallahassee, Florida 32399-0792

Docket for Case No: 89-003291

Orders for Case No: 89-003291