STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF PROFESSIONAL )

REGULATION, CONSTRUCTION )

INDUSTRY LICENSING BOARD, )

)

Petitioner, )

)

vs. ) CASE NO. 82-2616

)

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 filed March 5, 1982.

At the final hearing, Petitioner's Exhibits 1-3 and Respondent's Exhibits 1-5 were offered and admitted into evidence without objection. John W. Rohrback, the Respondent, testified on his own behalf.

FINDINGS OF FACT

At the final hearing the following factual allegations contained in the Administrative Complaint 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 C002372, CG CA 02372, PM 0015083 and RF 0036563. The last known address of the Respondent Rohrback is 10282 N.W. 31st Street, Coral Springs, Florida 33065.

2. The Respondent Rohrback, while doing business as Statewide Insulation and Solar Systems, Inc., failed to initially obtain building permits which are required by ordinance on the following job sites:

   
   

   1. Mrs. Blanche Nelson, 454 N.E. 4th Street, Boca Raton.

   2. Mrs. Dorothy Menzel, 784 N.E. 71st, Lot 27, Block C, Boca Harbor. Work started May 17, 1980. Permit taken out on May 19, 1980.

   3. Mrs. Meinhard, 1230 S.W. 7th Street, Lot 6, Block 29, Boca Raton Square. Work started on May 7, 1980. Permit taken out on May 19, 1980.

   4. Ms. Mary Greenhauer, 986 S.W. 14th Street, Lot 20, Block 63, Boca Raton Square. Work started on May 3, 1980. Permit issued on May 19, 1980.

      
      

3. Although the Respondent Rohrback eventually received the permits for these projects, he also initially failed to obtain a license to do contracting in the City of Boca Raton as required by ordinance.

   
   

4. On or about August 11, 1980, the City of Boca Raton Contractor's Board suspended the Respondent Rohrback indefinitely from doing business in the city for:

   
   

   1. using alternate materials and methods without clearance;

   2. not obtaining building permit;

   3. not filing a proper permit; and

   4. not filing proper proof of a certificate of competency.

      
      

5. At the time of the hearing before the local contractor's board, the Respondent Rohrback had settled and obtained releases with two of the listed individuals. He was told to settle the remaining two cases, obtain releases and appear before the local Board at a later date. The Respondent appeared on the designated date and discovered that the Board had met the previous day and suspended his license.

   
   

6. The Respondent Rohrback contacted the Boca Raton city attorney and a representative of the Department to present the signed releases and cancelled checks he eventually obtained from the four listed individuals in order to obtain a reversal of the local Board's action suspending his license. At the time of hearing, the Respondent had been unsuccessful in obtaining a reversal of the Board's decision.

   
   

7. Additionally, the Respondent Rohrback acted as qualifying agent for

   D.R.K. Company from July 1, 1979 through February 1981. During this period of time, D.R.K. utilized deceptive practices in order to obtain contracts from various individuals. By certified letter dated June 12, 1980, the Respondent informed D.R.K. and pertinent licensing boards that he was withdrawing as qualifying agent for D.R.K. and Statewide Insulation and Solar Systems, Inc., and revoking any presigned permits or letters of authorization that may have been signed by John W. Rohrback.

8. However, the Respondent did not actually attempt to revoke his authorization until October 28, 1980, when a letter was sent to Milton Rubin, administrative assistant to the Florida Construction Industry Licensing Board, outlining the problems he had encountered with D.R.K. and Statewide.

   
   

9. On or about February 19, 1981, the Lee County Board of County Commissioners suspended the Respondent Rohrback's privilege to pull building permits.

   
   

   CONCLUSIONS OF LAW

   
   

10. The Division of Administrative Hearings has jurisdiction over the parties and the subject matter of this dispute.

    
    

11. The Respondent Rohrback is charged by a three-count Administrative Complaint with violating Sections 489.129(1)(i), by operation of 489.129(1)(d), 489.129(1)(c) by operation of 455.227(1)(a) and 489.129(1)(i), Florida Statutes (1979), which empower the Board to impose specified sanctions if a contractor is, inter alia, found guilty of any of the following acts:

    
    

    1. [v]iolation of chapter 455.

    2. [w]illful 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.

    
    

12. Regarding count one, it is undisputed that the Respondent Rohrback's license was disciplined by the City of Boca Raton Contractor's Board. The Petitioner has met its burden of demonstrating that the Respondent violated Section 489.129(1)(i), Florida Statutes (1979). However, insufficient evidence was produced to show that the Respondent "willfully or deliberately" disregarded applicable building codes or laws of the state or of any municipalities or counties thereof. See generally, 57 Am Jur.2d, Negligence, ss. 101-107, for a discussion of willful, wanton or reckless conduct. The uncontradicted testimony of the Respondent was that he applied for all four permits and after difficulties with local officials over payment for a countywide occupational license, was finally issued the required permits after paying a double fee.

    
    

13. Regarding the acknowledged violation of Section 489.129(1)(i), Florida Statutes (1979), a careful examination of the Administrative Complaint reveals that the Respondent was not specifically charged with such violation. Rather, the Administrative Complaint charges a "violation of Section 489.129(1)(d), based on a 'willful' violation of Section 489.129(1)(i)." (e.s) Accordingly, the Petitioner has not sustained its burden of proof as to this count.

    
    

14. In count two, the Respondent is alleged to have violated Sections 489.129(1)(c) and 455.227(1)(a), Florida Statutes (1979), in that he made misleading, deceptive, untrue or fraudulent representations in the practice of contracting. Additionally, he is alleged to have violated Section 501.204 (1), Florida Statutes (1979), in that his actions constitute deceptive acts or practices in the practice of contracting.

15. It is undisputed that the Respondent personally made no false, misleading, deceptive or fraudulent statements to Ms. Hendricks. In fact, the Respondent has never met the lady or spoken to her prior to her execution of the contract in question. Instead, the Petitioner has urged that the Respondent, by acting as qualifying agent for the company which made false and deceptive statements to Ms. Hendricks, assumed responsibility for misrepresentations admittedly committed by this company in order to induce Ms. Hendricks to enter into a contract.

    
    

16. An examination of Chapter 489, Florida Statutes fails to reveal any specific provision of law which imposes strict or absolute responsibility on a qualifying agent for the errors or omissions of a business organization engaged in contracting. While a qualifier could generally be responsible in tort or contract for the acts of a corporation which he qualifies, license disciplinary proceedings constitute, at least conceptually, an entirely different type of proceeding. Such proceedings have repeatedly been held to be penal in nature, the involved statutes are subject to a strict construction and all doubts concerning the exercise of administrative disciplinary power are resolved against the agency. Section 489.119(2), Florida Statutes (1979), which involves business organizations and qualifying agents, imposes by necessary implication, a duty on qualifying agents concerning their ".... authority to supervise construction undertaken by a business organization." Thus, it could be asserted that this act, by necessary implication, imposes a duty on qualifiers to supervise the actual work performed and the failure of the contractor to adequately supervise construction could result in disciplinary action. Section 489.119, Florida Statutes, does not address, either expressly or impliedly, the responsibility of a qualifier for acts other than supervision of construction. Since the legislature has failed to specifically or by necessary implication make qualifying agents responsible for the unauthorized acts of organizations which they have qualified, other than the supervision of construction, the Petitioner has not produced sufficient evidence to establish the violation alleged in count two. See Alles v. Department of Professional Regulation, 423 So.2d 624 (Fla. 5th DCA 1982).

    
    

17. Moreover, in the instant case the Respondent took steps to dissociate himself from the business organizations which he qualified when he had actual knowledge of business practices with which he disagreed. The letters the Respondent sent to involved persons demonstrate that he was concerned about the business activities of D.R.K. and Statewide Insulation, and sought to correct the same. If the Respondent could be faulted in this case, such fault would center on his failure to immediately and clearly dissociate himself from these companies. The Respondent's explanation of why he continued the relationship was plausible and was not the result of a desire on the Respondent's part to assist these companies in their unsavory business practices.

    
    

18. Count three realleges matters which will be addressed in the Recommended Order entered in Case No. 82-1598.

RECOMMENDATION

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

That a Final Order be entered dismissing the Administrative Complaint filed against the Respondent John W. Rohrback in Case No. 82-2616.

DONE and ORDERED this 28th day of March, 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 28th day of March, 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: 82-002616

Orders for Case No: 82-002616