STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

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

)

Petitioner, )

)

vs. ) CASE NO. 82-2395

)

ROLAND C. RAY, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, WILLIAM B. THOMAS, held a formal hearing in this case on November 16, 1982, in Ocala, Florida. The transcript was filed on December 22, 1982. The Petitioner requested time within which to submit proposed findings of fact and conclusions of law, and 15 days after the filing of the transcript was allowed.

Proposed findings were received from the Petitioner within the time allowed, as extended, and these have been largely adopted. Nothing was submitted by or on behalf of the Respondent. By stipulation, the time for issuance of this Recommended Order was extended to February 14, 1983.

APPEARANCES

For Petitioner: John O. Williams, Esquire

547 North Monroe Street, Suite 204 Tallahassee, Florida 32301

For Respondent: Roland C. Ray, in pro per

305 North Pennsylvania Avenue Winter Park, Florida 32789

By Administrative Complaint issued on July 12, 1982, the Department of Professional Regulation charged the Respondent, Roland C. Ray, with violation of Section 489.129 (1)(k), Florida Statutes, in that he abandoned a construction project. The Petitioner also charged the Respondent with violation of Section 489.129(1)(i), Florida Statutes, in that Citrus County disciplined his license.

The complaint further charged that the Respondent violated Section 489.129(1)(g), Florida Statutes, in that he acted in the capacity of a contractor under a name other than as registered.

Finally, the Respondent was charged with violation of Section 489.119(2) and (3), Florida Statutes, in that he failed to properly qualify a company under which he was doing business.

In support of the allegations in the Administrative Complaint, the Petitioner presented the testimony of an officer of a Brooksville savings and loan association, and of the unlicensed contractor whom the Respondent engaged to complete a residence which the Respondent had began to build. Four exhibits were offered and received in evidence.

In response to the allegations in the Administrative Complaint, the Respondent testified on his own behalf, and introduced one exhibit which was received in evidence.

FINDINGS OF FACT

1. The Respondent is a registered general contractor, having been issued license number RG 0012013.

   
   

2. On October 3, 1980, the Respondent, d/b/a Five Ray Enterprises, Inc., entered into a contract with David and Laytha Danley to construct a residence near Brooksville, Florida, for the sum of $61,621.00. This contract was a construction management type of agreement in which the Respondent was to be paid a fee for his services. The Respondent commenced construction, and completed between 85 percent and 95 percent of the project before discontinuing an active role in the work during June of 1981.

   
   

3. The Respondent's base of operations was in Winter Park, nearly 100 miles from the construction site, and he was having some personal problems. Therefore, the Respondent agreed with Al Nickola to have Nickola supervise the completion of construction, which involved some painting, grading, finish electrical work and the installation of appliances.

   
   

4. The Respondent knew that Al Nickola was unlicensed as a contractor when he entered into the agreement with Nickola to complete the construction.

   
   

5. Before he discontinued his work on the project, the Respondent received all the inspections except for the Certificate of Occupancy. His agreement with Nickola was to complete the work which was left and to obtain the Certificate of Occupancy.

   
   

6. The Respondent did not properly qualify Five Ray Enterprises, Inc., under which name he contracted to build the residence for the Danleys.

   
   

7. On September 9, 1981, the Citrus County Hoard of Examiners revoked the Respondent's license for abandonment of the Danley construction project. However, the minutes of the Board meeting at which this action took place, do not reflect whether or not a full examination was made of all the facts. They simply indicate that the Respondent did not appear at the meeting as requested.

   
   

   CONCLUSIONS OF LAW

   
   

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

   
   

9. The Construction Industry Licensing Board is charged with carrying out the provisions of Chapter 489, Florida Statutes. Part I of this Act sets the standards for licensure in the field of construction contracting, and provides for disciplinary proceedings when the prescribed standards have been violated.

   Pursuant to Section 489.129(1)(k), Florida Statutes, the Board is authorized to revoke or suspend the certificate or registration of a contractor, or to impose an administrative fine not exceeding $1,000, or other sanctions, if a contractor is found guilty of abandonment of a construction project.

   
   

10. However, this statute further requires proof that the abandonment was without notification to the owner, and there was no evidence presented to support a finding that the Danleys either did or did not know of or approve of the Respondent's cessation or work on their residence. Accordingly, the Respondent is found to be not guilty on the charge of abandonment.

    
    

11. Section 489.129(1)(g), Florida Statutes, authorizes the above penalties upon proof that a contractor acted in the capacity of a contractor under a name other than as certified or registered. Section 489.119(2) and (3), Florida Statutes, authorizes the above penalties upon proof that a contractor failed to properly qualify a company.

    
    

12. Since the Respondent contracted with the Danleys under the company name of Five Ray Enterprises, Inc., these statutes were violated when the Respondent failed to properly qualify the company.

    
    

13. Section 489.129(1)(i), Florida Statutes, authorizes the above penalties upon proof that a contractor has been disciplined by any municipality or county. The Respondent, having had his license revoked by Citrus County, is guilty of violating this statute.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Respondent, Roland C. Ray, be found guilty of one

violation of Section 489.129(1)(g), Florida Statutes, and one violation of Section 489.119(2) and (3), Florida Statutes, and that he be assessed an administrative fine of $250 on each charge for a total fine of $500. It is further

RECOMMENDED that the Respondent be found guilty of violating Section 489.129(1)(i), Florida Statutes, and that his license be suspended until such time as the Respondent has obtained reinstatement of his Citrus County license. And it is further

RECOMMENDED that the Respondent be found not guilty of violating Section 489.129(1)(k), Florida Statutes.

THIS RECOMMENDED ORDER entered on this 11th day of February, 1983, in Tallahassee, Florida.

WILLIAM B. THOMAS, 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 11th day of February, 1983.

COPIES FURNISHED:

John O. Williams, Esquire

547 North Monroe Street Suite 204

Tallahassee, Florida 32301

Roland C. Ray

305 North Pennsylvania Avenue Winter Park, Florida 32789

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

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

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

STATE OF FLORIDA

DEPARTMENT OF PROFESSIONAL REGULATION CONSTRUCTION INDUSTRY LICENSING BOARD

DEPARTMENT OF PROFESSIONAL REGULATION,

Petitioner,

1. DPR Case No. 0018288

   DOAH Case No. 82-2395

   ROLAND C. RAY RG 0012013

   Post Office Box 5877 Orlando, Florida 32855

   
   

   Respondent.

   /

   FINAL ORDER

   
   

   This case came for final action by the Construction Industry Licensing Board on April 7, 1983, in Tampa, Florida. An administrative hearing held pursuant to Section 120.57(1), Florida Statutes, resulted in the issuance of a Recommended Order (attached hereto as Exhibit A) which was reviewed by the Board.

   
   

   Upon consideration, 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 approved as modified herein.

THEREFORE

It is ORDERED and ADJUDGED that the Respondent pay an administrative fine in the total amount of $500, and that the registered general contractor's license of the Respondent be and the same is hereby SUSPENDED for a period of one year or until such time as the Respondent has obtained reinstatement of his Citrus County license, whichever occurs first.

DONE AND ORDERED this 22nd day of April, 1983.

FLORIDA CONSTRUCTION INDUSTRY LICENSING BOARD

HENRY BACHARA, Chairman

FILED

DEPARTMENT OF PROFESSIONAL REGULATION FLORIDA CONSTRUCTION INDUSTRY LICENSING BOARD

BOARD CLERK

CLERK BURT GERMAN

DATE 4/22/83

Docket for Case No: 82-002395

Orders for Case No: 82-002395