STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF PROFESSIONAL )

REGULATIONS, CONSTRUCTION )

INDUSTRY LICENSING BOARD, )

)

Petitioner, )

)

vs. ) CASE NO. 83-1072

)

KENNETH ROWLAND, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a hearing was held before Arnold H. Pollock, Hearing Officer with the Division of Administrative Hearings, on July 20, 1983, in Orlando, Florida. The issue for determination was whether the Respondent's license as a registered residential contractor should be disciplined because of violations of Florida Statutes as alleged in the Administrative Complaint.

APPEARANCES

For Petitioner: Douglas A. Shropshire, Esquire

Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32301

For Respondent: Kenneth Rowland, pro se

4403 North Powers Drive Orlando, Florida 32808

INTRODUCTION

In the Administrative Complaint filed on September 22, 1982, Respondent is alleged to have violated various provisions of Chapter 468, Florida Statutes.

On March 25, 1983, approximately six months later, Respondent submitted his request for a formal hearing, disputing the allegations of fact contained in the Administrative Complaint.

Petitioner presented the testimony of Angela Luz Close; Bobby Hunter, Sr.; and the Respondent, Kenneth Rowland; and Petitioner's Exhibits 1 through 6.

Respondent testified in his own behalf.

FINDINGS OF FACT

1. At all times pertinent to the issues presented, Respondent was a registered residential contractor under license number RR 0024559, issued to Kenneth Rowland qualifying Phoenix Construction Services, Inc., issued in April 1975.

2. On May 12, 1977, Angela Close entered into a contract with C & C Roofing Company of Longwood, Florida, to enclose and make a room of the carport on her home located at 215 Ulysses Drive, Apopka, Florida. The contract, which detailed the work to be done, called for a contract price of $2,500 and stipulated the work was to be completed in approximately three weeks from start date. The amount of $1,150 was to be paid when the job was started, and the balance was to be paid upon completion and acceptance. This agreement was signed by Angela Close and J. D. Carver.

   
   

3. Ms. Close had given the contract to Carver because she worked with his wife at Seminole Community College and had been advised by her that Carver was in financial difficulty and needed the work. The contract was signed at Close's house, where Carver came with his wife, bringing the contract to be signed.

   
   

4. Carver did the preliminary measuring work, but when actual construction began, Respondent was present and accomplished the majority of the work. On May 26, 1977, 14 days after the contract was signed, Respondent pulled a building permit #99146 to accomplish the work called for in the contract, from the Orange County Building Department.

   
   

5. Several weeks after the work was started, Respondent asked Ms. Close for some additional progress payments on the job. Since she had already paid Carver in full according to the terms of the contract with him, she refused to pay Respondent, telling him she had paid all that was called for under the terms of her contract with Carver. When she said this, Respondent appeared quite surprised to learn of the contract and angry as well. On June 30, 1977, Respondent wrote a letter to the Orange County Building Department notifying that office that he had stopped work on that project because of nonpayment and requesting his name and license number be removed from the permit. As a result, the permit was cancelled on July 7, 1977.

   
   

6. In an interview with Bobby J. Hunter, Sr., an investigator for the Department of Professional Regulation (DPR) several years later, Respondent indicated he agreed to do the job in question for Ms. Close, a friend of Carver, for $3,500. He pulled the permit and commenced work without ever talking to Ms. Close or without having a contract from her to do it, relying on the word of Carver that it was proper to do so. He received several payments from Ms. Close, transmitted through Carver. Two were in cash, and one was a check.

   
   

7. When Respondent found out that Ms. Close had a contract with Carver for

   $2,500 and had paid him in full, he realized he would not receive funds to satisfy the work he had put in on the job, and he ceased work. The investigative report prepared by Mr. Hunter includes summaries of the interviews with both Carver and Respondent which state that Carver and Respondent were partners. Rowland, in his testimony at the hearing, denied any partnership relation. In light of the fact that these summaries are second-hand hearsay, contradicted by sworn testimony of the Respondent that he was not a partner of Carver, I resolve that dispute in favor of the Respondent and find that he was not a partner of Carver.

   
   

8. Respondent contends under oath, and I so find, that he pulled the permit to do the work without knowledge of the prior contract between Close and Carver, as a favor to Carver who was reportedly a friend of Close. It was his understanding that, though Carver made the arrangements, it was his, Respondent's contract with Close for the figure he had quoted to Carver after his first survey of the job site, $3,500. He had been told by Carver not to

   talk with Close, as she did not speak English well, and he admitted to having made a grand mistake in proceeding without a contract from the owner Close.

   
   

9. Carver's reliability is not the best. Mr. Hunter, investigator for DPR, indicated that Carver made some false statements to him in other cases. As a result, though Carver alleges he and Respondent were partners, and even Respondent's statement to Hunter seems to so indicate, there was, in reality, no partnership requiring Respondent to qualify C & C Roofing on his license, though there was plans to do so in the future.

   
   

   CONCLUSIONS OF LAW

   
   

10. The Division of administrative Hearings has jurisdiction of the parties and the subject matter of these proceedings.

    
    

11. In paragraph 6 of the complaint, Respondent is alleged to have acted in the capacity of a contractor in a name other than as registered [Section 469.112(2)(d)]; that he failed to properly qualify a company under which he was doing business [Section 468.107(2) and (3)]; that he aided and abetted an unlicensed person to evade the provisions of the contracting license law [Section 468.112(2)(b)]; and that he knowingly combined with an unlicensed person and allowed his registration to be used by an unlicensed person with the intent to evade the provisions of the law, violation of Sections 468.112(2)(e), all, alleged violations of Florida Statutes (Supp. 1978).

    
    

12. It is noted that all statutory references are to the 1978 Supplement to Florida Statutes (1977). The 1978 Supplement contains laws enacted by the Florida Legislature during its Regular Session from April 4 to June 2, 1978, and its Special Session from June 7 to June 8, 1978. Ordinarily, a statute enacted subsequent to the date of conduct complained of cannot subsequently penalize or make unlawful that action if said conduct was not illegal or prohibited at the time of enactment. However, I have compared the provisions of the 1978 Supplement with the provisions of the basic 1977 legislation and find it identical. Therefore, I conclude, as a matter of law, that the allegations of the wrong year in the Administrative Complaint are not prejudicial to the rights of the Respondent.

    
    

13. Notwithstanding the above, I conclude that no misconduct on the part of this Respondent has been proven. The evidence in the form of Hunter's summary of his interview with Carver is the grossest form of hearsay evidence and is not considered sufficient to offset Respondent's denial that he was a partner with Carver. Since Respondent was not in partnership with Carver, he was under no obligation to qualify any company other than his own, Phoenix Construction Services, Inc., which was already qualified. His testimony clearly shows, also, that he was not doing business under the name of C & C Roofing; that it was his opinion that Carver (C & C) was acting as agent for Ms. Close. Consequently, he cannot be shown to have acted in any name other than his own. His testimony, supported by that of Ms. Close, clearly shows that he was surprised and angered by Carver's actions--reactions not at all consistent with a conspiracy or aiding and abetting. In fact, Respondent, while admitting his mistakes, in no way admitted, nor was there any showing, that he was working for or in partnership with Carver.

    
    

14. This State has consistently recognized the importance of ensuring that before an individual is deprived of his opportunity to earn a livelihood in the manner for which he was trained, the evidence or wrongdoing on which that deprivation is based must be substantial, Bowling v. Department of Insurance,

    394 So.2d 165 (Fla. 1st DCA 1981). Here, the evidence against Respondent simply does not satisfy the burden of proof which the law imposes.

    
    

15. The Petitioner has submitted a Proposed Recommended Order which includes proposed findings of fact and conclusions of law. The proposed findings and conclusions have been adopted only to the extent that they are expressly set out in the Findings of Fact and Conclusions of Law above. They have been otherwise rejected as contrary to the better weight of the evidence, not supported by the evidence, irrelevant to the issues, or legally erroneous.

RECOMMENDATION

Based on the foregoing, it is RECOMMENDED

That Petitioner enter a final order dismissing the Administrative Complaint.

RECOMMENDED this 19th day of August, 1983, in Tallahassee, Florida.

ARNOLD H. POLLOCK

Hearing Officer

Division of Administrative Hearings 2009 Apalachee Parkway

Tallahassee, Florida 32301

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 19th day of August, 1983

COPIES FURNISHED:

Douglas A. Shropshire, Esquire Department of Professional

Regulation

130 North Monroe Street Tallahassee, Florida 32301

Mr. Kenneth Rowland 4403 North Powers Drive Orlando, Florida 32808

Mr. Fred Roche Secretary

Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32301

Mr. James Linnan, Executive Director Construction Industry Licensing Board Department of professional Regulation Post Office Box 2

Jacksonville, Florida 32202

Docket for Case No: 83-001072

Orders for Case No: 83-001072