STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF PROFESSIONAL )

REGULATION, Construction Industry ) Licensing Board, )

)

Petitioner, )

)

vs. ) CASE NO. 82-1598

)

JOHN W. ROHRBACK, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, SHARYN L. SMITH, held a formal hearing in this case on January 18, 1983, in Fort Lauderdale, Florida. The following appearances were entered:

APPEARANCES

For Petitioner: Michael J. Cohen, Esquire

Suite 101 Kristin Building 2715 East Oakland Park Blvd.

Fort Lauderdale, Florida 33306

For Respondent: John Rohrback, pro se

10282 Northwest 31st Street Coral Springs, Florida 33065

The issue involved for determination in this case is whether the Respondent John w. Rohrback's license as a general contractor should be revoked, suspended or otherwise disciplined for the acts alleged in the Administrative Complaint dated March 5, 1982. At the final hearing, the Petitioner voluntarily dismissed counts 4-9 of the Administrative Complaint.

FINDINGS OF FACT

The following facts were either stipulated to by the parties or not disputed by the Petitioner:

1. The Respondent John W. Rohrback is a certified general contractor having been issued license numbers CC CA02372 and CC CO02372. Respondent is also a registered plumbing contractor having been issued license number RF 0036563 and a registered mechanical contractor having been issued license number PM 0015083. Respondent's last known address is 10282 Northwest 31st Street, Coral Springs, Florida 33065.

   
   

2. On January 21, 1980, Statewide Insulation and Solar Systems, Inc., which was qualified at that time by Respondent, contracted with Fred Abbuehl to

   pressure clean, rebuild and recondition the existing roof on the Abbuehl dwelling located at 2927 Buckley Avenue, Lake Worth, Florida 33461.

   
   

3. The contract price of $3,006 was paid in full and the job was completed.

   
   

4. No permit was obtained for the project in violation of Section 105.1, Palm Beach County Building Ordinance.

   
   

5. The Respondent Rohrback attempted to obtain a permit for the Abbuehl project but was informed by an employee of the local building department that a permit was not required since no structural work was involved.

   
   

6. On May 21, 1980, Statewide Insulation and Solar Systems, Inc., which was qualified at that time by the Respondent, contracted with John F. Masden to coat Masden's roof, located at 3491 Poinciani Street, Naples, Florida 33942.

   
   

7. The work was completed, however, no permit was obtained for the project in violation of Section 107.2, Standard Building Code as adopted by Collier County in Section 81.21, Collier County Ordinance.

   
   

8. On May 15, 1979 and April 10, 1980, Statewide Insulation and Solar Systems, Inc., which was qualified at that time by Respondent, contracted with Ruth Arensberg to do roofing on Arensberg's home, located at 904 East Telland Boulevard, LeHigh Acres, Florida.

   
   

9. The contract price for the 1979 contract was 8,969 while the price of the 1980 contract was 2,226. The total amount was paid in full.

   
   

10. The permits for the Arensberg job, which were obtained from the Lee County Building Department, were signed by the Respondent and submitted by Thomas Garland, a job superintendent.

    
    

11. The work was completed, however, the roof leaked during rainstorms.

    
    

12. On December 4, 1980, Ruth Arensberg filed a formal complaint with Lee County, Division of Code Enforcement.

    
    

13. The Respondent Rohrback failed to appear or acknowledge the summons to answer the complaint at the formal hearing scheduled on February 19, 1981.

    
    

14. Thereafter, Lee County suspended the Respondent's permit pulling privileges in Lee County on February 19, 1981.

    
    

    CONCLUSIONS OF LAW

    
    

15. The Division of Administrative Hearings has jurisdiction over the parties and subject matter of this dispute. Section 120.57(1), Florida Statutes.

    
    

16. The Respondent Rohrback is charged with violating Sections 489.129(1)(d) and (i), Florida Statutes (1979), which empower the Construction Industry Licensing Board to take disciplinary action against a licensee found guilty of the following:

    
    

    (d) [willful or deliberate disregard

    and violation of the applicable building

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

    (i) [d]isciplinary action by any municipality or county, which action shall be reviewed by the state board before the state board takes any disciplinary action of its own.

    
    

17. Counts one and two of the Administrative Complaint charge the Respondent Rohrback with "willfully or deliberately" disregarding and violating local building codes by failing to pull building permits in violation of local building codes.

    
    

18. The terms "willful or deliberate" are generally used to characterize conduct which involves premeditation or knowledge rather than carelessness or inadvertence. See 57 Am Jur.2d, Negligence, Sections 101-105. An act or omission is "willfully" done if it is intentionally done with the specific intent to do something the law forbids, with bad purpose either to disobey or disregard the law. See Blacks Law Dictionary, Fifth Edition (1979), "willful" at 1434.

    
    

19. In the instant case, the Petitioner has failed to allege or prove that the conduct which the Respondent stipulated to constitutes "willful or deliberate" disregard of local building codes in violation of Section 489.129(1)(d), Florida Statutes (1979). In count one, the Respondent attempted to obtain a permit but was told one was unnecessary for the job described. The Respondent testified that he had no knowledge of the permit involved in count two, but did take steps to stop the work done without his knowledge and without proper permits when it came to his attention. In both of these counts, the conduct alleged and stipulated to by the parties does not as a matter of law constitute "willful or deliberate" disregard and violation of local building codes required by Section 489.129(1)(d), Florida Statutes (1979). Accordingly, the Petitioner has failed to carry its burden of proof as to counts one and two.

    
    

20. In count three, the Respondent Rohrback is being subjected to a disciplinary proceeding based on disciplinary action imposed by Lee County which resulted in the countywide suspension of his permit pulling privileges on February 19, 1981. The Respondent stipulated that his license was in fact suspended by Lee County on February 19, 1981, based on a formal complaint filed by Ruth Arensberg. Therefore, the Petitioner has met its burden of proof as to count three.

    
    

21. In determining an appropriate penalty, consideration has been given to the unrefuted testimony of the Respondent that he received no actual notice of the Arensberg charges and would have corrected the problem with her roof had it been brought to his attention. Additionally, the Respondent has taken positive steps to correct other complaints concerning the work of companies he qualified when he became aware of the same. Under such circumstances, revocation or suspension of his state license based on a violation of count three would be punitive and unwarranted.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED:

That the Respondent John W. Rohrback be found guilty of violating Section 489.129(1)(i), Florida Statutes (1979) and his general contractor's license be placed on probation for six (6) months.

DONE and ORDERED this 7th day of April, 1983, in Tallahassee, Florida.

SHARYN L. SMITH, 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 7th day of April, 1983.

COPIES FURNISHED:

Michael J. Cohen, Esquire Suite 101 Kristin Building 2715 East Oakland Park Blvd.

Fort Lauderdale, Florida 33306

John W. Rohrback

10282 Northwest 31st Street Coral Springs, Florida 33065

James Linnan, Executive Director Construction Industry Licensing Board

Post Office Box 2 Jacksonville, Florida 32202

Fred Roche, Secretary Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32301

Docket for Case No: 82-001598

Orders for Case No: 82-001598