STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF PROFESSIONAL )

REGULATION, CONSTRUCTION )

INDUSTRY LICENSING BOARD, )

)

Petitioner, )

)

vs. ) CASE NO. 83-1305

)

CLARENCE S. TATE, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, this cause was heard by Linda M. Rigot, the assigned Hearing Officer of the Division of Administrative Hearings, on August 26, 1983, in Jacksonville, Florida.

Petitioner Department of Professional Regulation, Construction Industry Licensing Board was represented by Stephanie Daniel, Esquire, Tallahassee, Florida, and Respondent Clarence S. Tate appeared on his own behalf.

Petitioner filed an Administrative Complaint seeking to suspend, revoke or take other disciplinary action against Respondent as licensee and against his license to practice contracting under the laws of the State of Florida.

Respondent timely requested a formal hearing on the allegations contained within that Administrative Complaint. Accordingly, the issues for determination are whether Respondent is guilty of the charges contained in that Administrative Complaint and, if so, what disciplinary action should be taken, if any.

Petitioner presented the testimony of Benny A. Carroll, Joe L. Hill and Ruby Hill, and Respondent testified on his own behalf. Additionally, Petitioner's Exhibits numbered 1 through 5 and Respondent's Exhibits numbered l and 2 were admitted in evidence.

Petitioner submitted posthearing proposed findings of fact in the form of a proposed recommended order. To the extent that any proposed findings have not been adopted in this Recommended Order, they have been rejected as not having been supported by the evidence, as having been irrelevant to the issues under consideration herein, or as constituting unsupported argument of counsel or conclusions of law.

FINDINGS OF FACT

1. At all times material here to, Respondent was licensed as a certified general contractor, having been issued license number CG C009484 by the State of Florida. At all times material hereto, Respondent qualified Allstate Roofing & Construction Company with the Florida Construction Industry Licensing Board. Since March 1983, Respondent has also been licensed as a registered roofing

   contractor and qualifies Allstate Roofing & Construction Company with the Florida Construction Industry Licensing Board under license number RC 0043155.

   
   

2. On March 27, 1981, as the qualifier for Allstate Roofing & Construction Company, Respondent entered into a contract with Joe Hill to reroof Hill's home for the contract price of $2,214.10. The contract further provided that workmanship would be unconditionally guaranteed for a period of five years.

   
   

3. Respondent in turn entered into a subcontract on April 8, 1981, whereby A & A Roofing Co. subcontracted with Allstate Roofing & Construction Company to perform the work required on the Hill roof for the sum of $1,950, which contract also carried a five-year workmanship unconditional guarantee. In the meantime, Hill and his wife obtained a second mortgage on their home to pay for the replacement of the existing roof, and the mortgage company paid Respondent directly.

   
   

4. The subcontractor with whom Respondent contracted for the work on the Hill home was a registered roofing contractor.

   
   

5. The existing roof on the Hill home was gravel. Under the contract for replacing the roof on the Hill hoine, asphalt shingles were installed on the portion of the roof which is slanted, and new gravel and tar were installed on the portion of the roof which is flat.

   
   

6. After the roof was completely replaced, Hill contacted Respondent to report leaks in the flat part of the roof. In response to that complaint, someone came to the Hill residence and repaired the areas where leakage was reported.

   
   

7. Since the roof leaked again, Hill contacted Respondent, and Mr. Davis of A & A Roofing Co. reported to the Hill residence and worked on the roof. In January 1983, Hill's wife contacted Respondent regarding her leaky roof, and once again someone was sent to the Hill residence to effectuate repairs.

   
   

8. Although the Hills testified at the formal hearing that the roof still leaked, no evidence was presented to show the precise location of any leak in order o ascertain if the leak was a new" leak or an "old" leak. Both Mr. and Mrs. Hill do admit, however, that Respondent has responded to their complaints every time they have contacted him.

   
   

   CONCLUSIONS OF LAW

   
   

9. The Division of Administrative Hearings has jurisdiction over the subject matter hereof and the parties here to. Section 120.57(1), Florida Statutes (1981).

   
   

10. Count One of the Administrative Complaint filed herein charges Respondent with violating Section 489.129(1)(j) Florida Statutes (1981), by failing to comply with Section 489.113 (3), Florida Statutes (1981), which latter statute provides as follows:

    
    

    (3) A contractor shall subcontract

    the . . . roofing . . . work for which a local examination for a certificate

    of competency or a license is required, unless such contractor holds a state certificate of competency or license

    of the respective trade category, as required by the appropriate local authority. However, a general, build- ing, or residential contractor shall not be required to subcontract the installation of shingle roofing mate- rials . . . . This subsection does not apply if the local authority does not require a certificate of competency or license for such trade. Nothing in this act shall be construed to require the subcontracting of asphalt roofing shingles.

    
    

    Petitioner has failed to carry its burden of proving that Respondent is guilty of the violations charged in Count One of the Administrative Complaint filed herein. First, no evidence was introduced to show the requirements for examination, licensure, or certification by the local authority. Since there is no showing of the requirements of the local authority, there can be no violation of a statute based upon those requirements. Second, Respondent did subcontract the entire roof on the Hill residence, although there would be no requirement for the subcontracting of the asphalt shingle portion thereof. Since Petitioner has failed to prove that Respondent violated Section 489.113(3), Florida Statutes (1981) , as charged in Count One, then a fortiori Petitioner has failed to prove that Respondent violated Section 489.129(1)(j) , Florida Statutes (1981), which charged Respondent with failing to comply with Section 489.113(3), Florida Statutes (1981).

    
    

11. Count Two of the Administrative Complaint filed herein charges Respondent with violating Section 459.129(1)(c) Florida Statutes (1981), by violating Section 455.227(1)(a) Florida Statutes (1981) , which latter statute prohibits a licensee from making " . . . misleading, deceptive, untrue, or fraudulent representations in the practice of his profession "

    Petitioner has failed to prove that Respondent has violated Section 455.227(1)(a) , Florida Statutes (1981). The evidence is clear that Respondent has caused someone to return to the Hill residence to effectuate additional repairs in response to every complaint made by the Hills since the completion of the reroofing project. No competent substantial evidence was introduced to show that Respondent made any misleading representations with regard to the quality of his work or that Respondent has thus far failed to honor his warranty.

    Rather, the Hills admitted that at least two of the three leaks reported to Respondent have been repaired, and the Hills have further admitted that someone has responded to their complaints. Since Petitioner has failed to prove that Respondent violated Section 455.227(1)(a), Florida Statutes (1981), as charged in Count Two, then a fortiori Petitioner has failed to prove that Respondent violated Section 489.129(1)(c), Florida Statutes (1981)(violation of Chapter 455)

    
    

12. Petitioner presented extensive argument in its proposed recommend order regarding the history of the interpretation applied to Section 489.113(3), Florida Statutes (1981), by the Florida Construction Industry Licensing Board since 1973; and Petitioner offers extensive argument on the interpretation of that statute as it existed in 1979, including the introduction in evidence in this hearing of an attorney general opinion interpreting that statute. Petitioner's arguments are irrelevant in that the Administrative Complaint filed in this cause specifically charges Respondent with violating only the 1981 versions of the statutes cited. Accordingly, it is unnecessary to consider

prior interpretations by the Construction Industry Licensing Board of any statute which the Legislature has specifically thereafter amended.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered finding Respondent not guilty of

the allegations contained in the Administrative Complaint filed herein and

further dismissing the Administrative Complaint against him.

DONE and RECOMMENDED this 20th day of October, 1983, in Tallahassee, Leon County, Florida.

LINDA M. RIGOT, 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 20th day of October, 1983.

COPIES FURNISHED:

Stephanie A. Daniel, Esquire Department of Professional

Regulation

130 North Monroe Street Tallahassee, Florida 32301

Mr. Clarence. S. Tate 8282 Westernway Circle,

Suite 103

Jacksonville, Florida 32216

Frederick Roche, Secretary Department of Professional

Regulation

130 North Monroe Street Tallahassee, Florida 32301

James Linnan, Executive Director Construction Industry Licensing

Board

Post Office Box 2 Jacksonville, Florida 32202

Docket for Case No: 83-001305

Orders for Case No: 83-001305