Judges: D. R. ALEXANDER
Agency: Department of Business and Professional Regulation
Latest Update: Dec. 04, 1990
Summary: Where no proof that respondent had state license, complaint dismissed.
83-2723STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
DEPARTMENT OF PROFESSIONAL ) REGULATION, FLORIDA CONSTRUCTION ) INDUSTRY LICENSING BOARD, )
)
Petitioner, )
)
vs. ) CASE NO. 83-2723
)
MAYNARD S. MOSS, )
)
Respondent. )
)
RECOMMENDED ORDER
Pursuant to notice, a formal hearing was held in the above case before the Division of Administrative Hearings by its duly designated Hearing Officer, Donald R. Alexander, on October 13, 1983, in Orlando, Florida.
APPEARANCES
For Petitioner: Stephanie A. Daniel, Esquire
130 North Monroe Street Tallahassee, Florida 32301
For Respondent: Sam E. Murrell, Esquire
Post Office Box 1748 Orlando, Florida 32602
BACKGROUND
By an administrative complaint filed on August 11, 1983, petitioner, Department of Professional Regulation, Florida Construction Industry Licensing Board, seeks to take disciplinary action against respondent, Maynard S. Moss, a registered roofing contractor, for allegedly violating various provisions within Chapters 455 and 489, Florida Statutes. In brief, it is alleged that (a) by failing to honor a warranty on three roofing projects completed in 1980, respondent had made "fraudulent misrepresentations" in violation of Subsections 455.227(1)(a) and 489.129(1)(a) and (b) by failing to qualify a business through which he was engaged in contracting on a job completed in 1983, he had violated Subsections 489.129(1)(g) and (j).
Respondent disputed the above allegations and requested a formal hearing pursuant to Subsection 120.57(1) Florida Statutes, to contest the allegations. The matter was referred by petitioner to the Division of Administrative Hearings on September 1, 1983 with a request that a hearing officer be assigned to conduct a hearing. By notice of hearing dated September 29, 1983, the final hearing was scheduled for October 13, 1983 in Orlando, Florida.
At the final hearing, petitioner offered petitioner's exhibit 1 which was received into evidence. Thereafter, respondent moved to dismiss the complaint
on the ground petitioner had failed to establish that respondent was indeed licensed by the Department when the events herein occurred. After considering argument of counsel, the motion was granted. The basis for that ruling is set forth in the conclusions of law portion of this recommended order.
Based upon all of the evidence, the following findings of fact are determined:
FINDINGS OF FACT
On August 11, 1983, petitioner, Department of Professional Regulation, Florida Construction Industry Licensing Board, issued an administrative complaint alleging that respondent, Maynard S. Moss, was a registered roofing contractor and had violated various provisions of Chapter 489, Florida Statutes, while performing four roofing jobs pursuant to contracts entered into in February, March and May, 1980, and March, 1983, respectively.
According to documents on file with the official custodian of petitioner's records and introduced into evidence, respondent made application for registration as a roofing contractor with petitioner on April 25, 1974. On October 28, 1976, he filed a registration change of status application with the Department to qualify M & W Roofing, Inc. The records also reflect that his license number RC 0020412 for the year expiring June 30, 1977 was cancelled by the Department on an undisclosed date. There is no evidence that he was issued a license thereafter which was effective in 1980 or 1983.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction of the subject matter and the parties thereto pursuant to Subsection 120.57(1), Florida Statutes.
Respondent is first charged with violating Subsections 455.227(1)(a) and 489.129(1)(c), Florida Statutes, by failing to honor a warranty on three roofing jobs he performed in 1980. He is also charged with performing a roofing job in March, 1983 under a business name not qualified with the Department in violation of Subsections 489.129(1)(g) and (j) Florida Statutes. The complaint also alleges that respondent was a registered roofing contractor when the above events occurred.
Subsection 489.129(1), Florida Statutes, provides that the board may discipline the "registration of a contractor" who is found guilty of certain enumerated acts. Likewise, Subsection 455.227(1), Florida Statutes, authorizes the board to "discipline a licensee" if it finds that certain illicit conduct has occurred. Therefore, it is clear that the board's jurisdiction to take disciplinary action against an individual extends only to those who are licensed or registered contractors with the State. Although respondent may well hold a license from the State, it was not so demonstrated in this proceeding. Having failed to establish this crucial element, the charges in the administrative complaint must fail. Cf. DPR, Board of Dentistry v. Harold I. Odle, DOAH Case No. 82-770, Final Order entered 1/21/83.
RECOMMENDATION
Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that all charges against respondent be DISMISSED.
DONE and RECOMMENDED this 9th day of November, 1983, in Tallahassee, Florida.
DONALD R. ALEXANDER
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 9th day of November, 1983.
COPIES FURNISHED:
Stephanie A. Daniel, Esquire
130 N. Monroe Street Tallahassee, Florida 32301
Sam E. Murrell, Jr., Esquire Post Office Box 1748 Orlando, Florida 32602
Fred Roche, Secretary
Department of Professional Regulation
130 North Monroe Street Tallahassee, Florida 32301
Mr. J. K. Linnan Executive Director Florida Construction
Industry Licensing Board Post Office Box 2 Jacksonville, Florida 32201
Docket for Case No: 83-002723
Orders for Case No: 83-002723
