STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF PROFESSIONAL )

REGULATION, CONSTRUCTION )

INDUSTRY LICENSING BOARD, )

)

Petitioner, )

)

vs. ) CASE NO. 83-1632

)

ELIAS DAVIS, )

)

Respondent. )

)

RECOMMENDED ORDER

For Petitioner: Douglas A. Shropshire, Esquire

Tallahassee, Florida

For Respondent: William A. Borja, Esquire

Clearwater, Florida

A final hearing was held in this case in Clearwater, Florida, on March 7, 1984. Petitioner Department of Professional Regulation (the Department) had charged respondent Elias Davis (Davis) in the first count of the Administrative Complaint with having been issued a letter of reprimand by the Pinellas County Construction Licensing Board for failure to pull a permit on a roofing job. At final hearing, Davis stipulated to this. The only remaining issue was whether Davis fraudulently represented to the owner that he had removed the old roof although he had in fact only put hot tar and gravel over the existing roof, as charged by the Department in Count Two of the Administrative Complaint.

FINDINGS OF FACT 1./

1. Davis is a registered roofing contractor, having been issued License No. RC 0033898. He resides in Safety Harbor, Florida. At all times relevant to this case, Davis was statutory qualifying agent, pursuant to Section 489.119, Florida Statutes (1903), for "Elias Davis Roofing."

   
   

2. On February 28, 1980, Davis entered into a contract with Frederick G. Mattson of Clearwater, Florida, to reroof a house at 1570 Havana Drive, Clearwater, Florida. The contract specifically called for Davis to remove the old flat gravel roof over the rear porch of the house, to install a new four-ply built-up roof over the porch, and to do other work on other portions of the roof. The total contract price was $750, which was paid in full. The work was substantially completed in March of 1980 and complied with the requirements of the contract. Specifically, Davis testified that the old flat gravel roof over the rear porch of the house had been removed and that a new four-ply built-up roof over the porch had been installed. Davis testified that, in doing the work, he removed and saved as many of the old decorative marble chips as he could and reused the marble chips he was able to save, mixed with as much

   additional new gravel as was necessary, to cover the new roof. The Department did not prove Davis' testimony to be false or incorrect.

   
   

3. At the time the work was completed, the Department's complaining witness, Elwood Dugan, an employee of Mattson, disapproved of the workmanship on the other portions of the roof, although he found the work on the roof over the rear porch of the house to be acceptable. Dugan advised Mattson not to pay Davis, but Mattson disagreed and paid Davis in full on March 21, 1980.

   
   

4. In approximately June, 1982, the roof began to leak in the area of the seam between the flat roof over the rear porch of the house and the angled main roof of the house. Dugan contacted Davis on June 22, 1982, to complain about the leak and asked Davis to repair it free of charge. Davis looked at the roof and told Dugan that the leak was the result of the rear porch roof pulling away from the main roof, widening the seam between the two, and was not the result of far poor workmanship on his part. Davis also pointed out that his contract provided a guarantee of only one year.

   
   

5. Dugan next complained to various government agencies, including the Pinellas County Construction Licensing Board and the local State Attorney's Office. These complaints resulted only in the issuance of a letter of reprimand by the Pinellas County Construction Licensing Board on September 21, 1982, for Davis' failure to pull a permit on the Mattson roofing job.

   
   

6. Dugan next asked several local roofing contractors for an estimate to repair the leak and otherwise complete Davis' allegedly faulty workmanship. Based on the presence of the old decorative marble chips on the roof, the roofing contractors concluded that the roof had not been removed. (There was no admissible, competent substantial evidence sufficient to support a finding that there was any other basis for the conclusion of these roofing contractors.)

   
   

7. Based on statements made to him by the other roofing contractors, Organ engaged one of them to completely reroof the rear porch of the house. This second roofing job was done in September of 1982 and was completed on approximately September 30, 1982.

   
   

   CONCLUSIONS OF LAW

   
   

8. Section 489.129(1)(i), Florida Statutes (1983), provides:

   
   

   1. The board may revoke, suspend, or

      deny the issuance or renewal of the certificate or registration of a contractor and impose an administrative fine not to exceed $5,000,

      place a contractor on probation, or reprimand or censure a contractor if the contractor, or if the business entity or any general partner, officer, director, trustee, or member of a business entity for which the contractor is a qualifying agent, is found guilty of any of the following acts:

      1. Disciplinary 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.

         In this case, Davis stipulated to having received a written reprimand from the Pinellas County Construction Licensing Board for failing to pull a permit on the Mattson roofing job. Similar discipline would therefore be appropriate under this statute.

         
         

9. The Department also seeks to impose discipline under Section 455.227(1)(a), Florida Statutes (1983):

   
   

   1. The board shall have the power to revoke, suspend, or deny the renewal of the license, or to reprimand, censure, or otherwise discipline a licensee, if the board finds that:

(a) The licensee has made misleading, deceptive, untrue, or fraudulent representations in the practice of his profession....

However, the facts do not support the imposition of any discipline under that statute.

RECOMMENDATION

Based upon the foregoing findings of fact and conclusions of law, it is recommended that the Construction Industry Licensing Board issue a written reprimand to respondent Elias Davis for failure to pull a permit on a roofing job.

RECOMMENDED this 5th day of April, 1984, in Tallahassee, Florida.

J. LAWRENCE JOHNSTON 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 5th day of April, 1984.

ENDNOTE

1/ Except to the extent consistent with these findings of fact, the Department's proposed findings of fact are rejected as either being not supported by competent substantial evidence, being contrary to the greater weight of the evidence, or being irrelevant.

COPIES FURNISHED:

Douglas A. Shropshire, Esquire Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32301

William A. Borja, Esquire

501 South Fort Harrison Avenue Suite 204

Clearwater, Florida 33516

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: 83-001632

Orders for Case No: 83-001632