STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

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

)

Petitioner, )

)

vs. ) CASE NO. 82-709

)

JAMES K. RODDY, )

)

Respondent. )

)

RECOMMENDED ORDER

This matter came on for hearing in Hollywood, Florida, on June 30 and September 21, 1982, before the Division of Administrative Hearings and its duly appointed Hearing Officer, R. T. Carpenter. The parties were represented by:

For Petitioner: Michael J. Cohen, Esquire

2715 East Oakland Park Boulevard Fort Lauderdale, Florida 33306

For Respondent: James K. Roddy, pro se

11360 Southwest 47th Terrace Miami, Florida 33165

This matter arose on Petitioner's Administrative Complaint charging that Respondent failed to fulfill contractual obligations to a customer, failed to obtain a building permit and failed to call for a required inspection. The alleged violations relate to a roofing job Respondent performed for Mildred Buckaloo in 1976.

Subsequent to the June 30, 1982, hearing, Petitioner moved to reopen proceedings to introduce rebuttal testimony. Respondent did not object and a further hearing was held. Respondent participated in the initial hearing, but was not present at the further proceedings.

Petitioner submitted proposed findings of fact and conclusions of law following the initial hearing. The proposed findings are adopted herein to the extent they are relevant and consistent with the evidence. It should be noted that Petitioner amended its proposed disposition to license revocation based on Respondent's alleged false testimony.

Petitioner filed a request for admissions with Respondent, essentially requesting that all material facts alleged in the Administrative Complaint be admitted. Although failure to reply could be considered an admission of all allegations, 1/ Respondent did appear and deny some allegations. Therefore, the controverted facts herein are based on the evidence presented at hearing.

FINDINGS OF FACT

1. Respondent is a certified roofing contractor having been issued license number RC0021181. His address as stated at the June 30, 1982, hearing is 11360 SW 47th Terrace, Miami, Florida 33165.

   
   

2. On or about August 2, 1976, Mildred Buckaloo contracted with Respondent, who was then doing business as Roddy Roofing Company, to re-roof her residence in Miami. Respondent completed the job with some agreed changes in the contract. The customer was not satisfied with the job and Respondent returned in September to reinstall lead flashing and replace a facia board.

   
   

3. Ms. Buckaloo subsequently complained that the roof leaked, and accused Respondent of improper sexual advances. Respondent agreed to return to the job site, but sought to be accompanied by a third person. This was never arranged and Ms. Buckaloo's death apparently resulted in the dispute remaining unresolved.

   
   

4. Respondent admitted that he failed to obtain a building permit for the Buckaloo job as required by Section 301.1(k), Metropolitan Dade County Code. Respondent claims that although he has no documents, he did obtain the project inspection required by Section 201.1(3)(b) of this Code. In this regard, Respondent stated that he ran into Dade County building inspector Gene Kirby in a restaurant and got Kirby to come to the job site and make the inspection.

   
   

5. Building inspector Kirby testified at the second hearing and denies making the inspection. He did not know Respondent in 1976 but believes he first met him around 1980. Due to the long period of time which has elapsed since the alleged inspection, it cannot be found that either witness lied. However, the absence of any record to document the inspection indicated that it was not performed.

   
   

   CONCLUSIONS OF LAW

   
   

6. Subsection 489.129(1), Florida Statutes (1981) 2/ , provides in part:

   
   

   1. The board may revoke, suspend, or deny the issuance or renewal of the certificate or registration of a contractor or impose an

      administrative fine not to exceed $1,000, place the contractor on probation, reprimand or censure a contractor if the contractor is found guilty

      of any of the following acts:

      (d) Willful or deliberate disregard and violation of the applicable building codes or laws of the state or or any municipalities or counties thereof.

      
      

7. In failing to obtain either a building permit for the Buckaloo job or the inspection required by the Dade County Metropolitan Code, Respondent deliberately disregarded the applicable building code in violation of the above provision. Respondent is therefore guilty of the charges contained in Count II of the Administrative Complaint.

   
   

8. Count I of the Administrative Complaint, which alleges contract violation, was not supported by competent evidence and must be dismissed. In proceedings such as this which are penal in nature, violations may not be found on problematic evidence. 3/

RECOMMENDATION

From the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That Petitioner enter its Final Order suspending Respondent's

roofing contractor's license for a period of six months.

DONE and ENTERED this 1st day of October, 1982, in Tallahassee, Florida.

R. T. CARPENTER, Hearing Officer Division of Administrative Hearings The Oakland Building

2009 Apalachee Parkway

Tallahassee, Florida 32301

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 1st day of October, 1982.

ENDNOTES

1/ See Rule 1.270(a) Florida Rules of Civil Procedure. 2/ Previously Subsection 468.112(2), F.S.(1975).

3/ Bowling v. Department of Insurance, 394 So.2d 165, 172 (Fla. 1st DCA 1981).

COPIES FURNISHED:

Michael J. Cohen, Esquire

2715 E. Oakland Park Boulevard Fort Lauderdale, Florida 33306

James K. Roddy

11360 S.W. 47th Terrace Miami, Florida 33165

================================================================= AGENCY FINAL ORDER

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

STATE OF FLORIDA

DEPARTMENT OF PROFESSIONAL REGULATION CONSTRUCTION INDUSTRY LICENSING BOARD

DEPARTMENT OF PROFESSIONAL REGULATION

Petitioner,

vs. DPR Case No. 0008219

DOAH Case No. 82-709

JAMES K. RODDY, RC 0021181

11360 S.W. 47th Terrace Miami, Florida 33165,

Respondent.

/

FINAL ORDER

This case came for final action by the Construction Industry Licensing Board on March 11, 1983, in Jacksonville, Florida. An administrative hearing held pursuant to Section 120.57(1), F.S., resulted in the issuance of a Recommended Order (attached hereto as Exhibit A) which was reviewed by the Board. Upon consideration of the Recommended Order, Petitioner's Exceptions and the complete record of the proceeding, it is ORDERED:

1. The findings of fact in the Recommended Order are approved and adopted and incorporated herein by reference.

   
   

2. The conclusions of law in the Recommended Order are approved and adopted and incorporated herein by reference.

   
   

3. The recommendation in the Recommended Order is rejected as inappropriate under the circumstances.

THEREFORE, it is ordered and adjudged that the Respondent be and is hereby officially reprimanded for his actions, and that he pay a $250 administrative fine.

DONE and ORDERED this 29th day of March 1983.

FLORIDA CONSTRUCTION INDUSTRY LICENSING BOARD

JOHN HENRY JONES PRESIDENT

Docket for Case No: 82-000709

Orders for Case No: 82-000709