STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

HUG, INC., )

)

Petitioner, )

)

vs. ) CASE NO. 80-2339

) SAFE-LINE, INC., DEPARTMENT OF ) TRANSPORTATION, and PEERLESS ) INSURANCE COMPANY, )

)

Respondents. )

)

RECOMMENDED ORDER

Pursuant to notice, Respondent's, Safe-Line, Inc. ("SAFE- LINE"), motion to quash the Administrative Complaint filed in this case by Petitioner, Bug, Inc., was heard on February 16, 1981. Since that motion requires final disposition, this ruling is submitted to Respondent, Department of Transportation ("DEPARTMENT"), in the form of a recommended order.

APPEARANCES

For Petitioner: William D. Moore, Esquire

700 Barnett Bank Building Tallahassee, Florida 32301

For Respondents: J. Lawrence Johnston, Esquire Safe-Line, Inc. Post Office Box 1170

Tallahassee, Florida 32302

Department of Ella Jane P. Davis, Esquire Transportation Haydon Burns Building, Mail Station 58

Tallahassee, Florida 32301 FINDINGS OF FACT

1. By its Administrative Complaint filed on November 24, 1980, Petitioner generally alleges that SAFE-LINE is qualified to perform construction work for the DEPARTMENT, that Petitioner is a subcontractor that performed work for SAFE- LINE under a specific DEPARTMENT construction project, and that, in connection with that project, SAFE-LINE, to Petitioner's injury, violated DEPARTMENT Rule 14-22.12(3)(c), Florida Administrative Code. By way of relief, Petitioner seeks entry of a DEPARTMENT order "striking Safeline, Inc. from the list of contractors qualified to do construction for the Department of Transportation." (Petitioner's Administrative Complaint.)

   
   

2. The Complaint fails to allege compliance with the notice requirements of Section 120.60(6), Florida Statutes (1979); at oral argument, counsel acknowledged that, as of this date, the DEPARTMENT has not yet complied with those requirements.

   CONCLUSIONS OF LAW

   
   

3. SAFE-LINE, by virtue of its certification by the DEPARTMENT as a qualified contractor, currently holds a DEPARTMENT license. See, Sections 120.52(7), 337.14, Fla. Stat. (1979).

   
   

4. By its Administrative Complaint, Petitioner seeks revocation of SAFE- LINE's license. Hence, Section 120.60(6), Florida Statutes, governs this proceeding:

   
   

   "No revocation, suspension, annulment, or withdrawal of any license is lawful unless, prior to the institution of agency proceed- ings, the agency has given reasonable notice by certified mail or actual service to the licensee of facts or conduct which warrant the intended action and the licensee has been given an opportunity to show that he has complied with all lawful requirements for the retention of the license."

   
   

   A complaint filed in a license revocation proceeding without compliance with the notice requirements of Section 120.60(6) is subject to dismissal on motion of the licensee. Florida Real Estate Commission v. Frost, 373 So.2d 939 (Fla. 4th DCA 1979).

   
   

5. The purpose in requiring notice prior to filing a license revocation complaint is to allow explanation or repudiation by the licensee which would render the complaint ill-founded. It serves as an additional legislative safeguard against the filing of ill-founded complaints which can irreparably injure licensees. Sheppard v. Board of Dentistry, 385 So.2d 143 (Fla. 1st DCA 1980).

   
   

6. Only the DEPARTMENT may lawfully institute a proceeding to revoke a contractor's certificate of qualification. Section 337.14(4), Fla. Stat. (1979). Prior to instituting such a proceeding, it must comply with the notice requirements of Section 120.60(6), supra. In this case, since the DEPARTMENT has not initiated the proceeding, the notice requirements have not been met. Upon timely motion, the Administrative Complaint must therefore be dismissed.

RECOMMENDATION

Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED:

That the Administrative Complaint filed by Petitioner on November 20, 1980, be dismissed by final agency order.

DONE AND ORDERED this 17th day of February, 1981, in Tallahassee, Florida.

R. L. CALEEN, JR. Hearing Officer

Division of Administrative Hearings The Oakland Building

2009 Apalachee Parkway

Tallahassee, Florida 32301

Telephone: (904) 488-9675

FILED with the Clerk of the Division of Administrative Hearings this 17th day of February, 1981.

COPIES FURNISHED:

William D. Moore, Esquire Ella Jane P. Davis, Esquire 700 Barnett Bank Building Department of Transportation Tallahassee, Florida 32301 Haydon Burns Building, MS 58

Tallahassee, Florida 32301

J. Lawrence Johnston, Esquire Post Office Box 1170 Tallahassee, Florida 32302

Docket for Case No: 80-002339

Orders for Case No: 80-002339