STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF PROFESSIONAL )

REGULATION, CONSTRUCTION )

INDUSTRY LICENSING BOARD, )

)

Petitioner, )

)

vs. ) CASE NO. 83-4024

)

LARRY A. LEWIS, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, James W. Bradwell, held a public hearing in this case on May 3, 1984, in Fort Lauderdale, Florida. The parties were afforded leave to submit post-hearing memoranda supportive of their respective positions. The parties, through counsel, have submitted proposed memoranda which were considered by me in preparation of this Recommended Order. 1/

APPEARANCES

For Petitioner: Douglas A. Shropshire, Esquire

Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32301

For Respondent: Ronald B. Finn, Esquire

2500 North University Drive Sunrise, Florida 33322

ISSUE

The issue presented for decision herein is whether or not the Respondent made false representations in the practice of his profession in violation of Section 489.129(1)(c), Florida Statutes (1981), and thereby violated Section 455.227(1)(a), Florida Statutes (1981).

BACKGROUND

Petitioner offered into evidence, and there were received, five exhibits as follows: Exhibit 1 - Respondent's Answers to Petitioner's First Request for Admissions; Exhibit 2 - A Letter from Respondent to Petitioner's Investigator dated April 8, 1993; Exhibit 3 - The transcript of the deposition of Stephen Takeuchi; Exhibit 4 - The transcript of the deposition of Ron Kirkland; and Exhibit 5 - The transcript of the deposition of Gary Coon. Petitioner presented no witnesses at the hearing, it being shown that the witnesses for Petitioner resided in Jacksonville, Florida and their testimony was preserved by deposition and submitted, as noted, in the form of the transcript of their depositions.

Respondent presented one item of documentary evidence consisting of a composite of three letters of good character from various persons. Respondent testified on his own behalf but presented no other witnesses.

FINDINGS OF FACT

Based upon my observation of the Respondent, and his demeanor while testifying, a consideration of the documentary evidence presented and the entire record compiled herein, I hereby made the following relevant findings of fact.

1. Respondent is a certified general contractor and has been issued license number CG C0088006.

   
   

2. On March 18, 1982, Respondent, as seller, entered into a written sales contract with Stephen R. Takeuchi, as buyer, for the sale of a single family residence located at 9743 Chesterfield Drive, Jacksonville, Florida 32217, for a sales price of $81,000. This residence, along with other homes within the same subdivision, was constructed by Respondent for the purpose of sale to others.

   
   

3. On March 17, 1982, Respondent signed an agreement with Takeuchi providing a one-year warranty on the residence from the date of closing. Said warranty specifically included the hearing and air conditioning units. The sale of the residence closed sometime in April of 1982.

   
   

4. In December 1982, approximately eight months following the close of the purchase transaction by Mr. Takeuchi, the compressor on Takeuchi's air conditioner and hearing unit became defective.

   
   

5. Respondent was notified of this problem by Takeuchi but he failed to immediately respond. Following approximately two weeks after having notified Respondent, Takeuchi had the air conditioning and hearing unit compressor replaced by a private air conditioning company at a cost of $236.80. That cost represented the labor charge for replacing the unit and the replacement compressor was supplied by the manufacturer under its five-year parts warranty on the compressor.

   
   

6. Ron Kirkland, an employee of McGowen's Hearing and Air Conditioning Company, who replaced the compressor for Mr. Takeuchi, inspected the unit and determined that it had been well maintained by Mr. Takeuchi.

   
   

7. Kirkland testified he made several checks to determine whether or not the Respondent had attempted to "fool the serviceman" by cleaning the unit prior to making the service call and he (Kirkland) determined that the unit was kept clean and well maintained. It is so found by this Hearing Officer.

   
   

8. Respondent, as stated, offered three letters of character regarding his reputation as a builder. Those letters speak highly of Respondent's reputation, which is not at issue herein. Respondent never dispatched any service person to inspect Mr. Takeuchi's air conditioning unit. Respondent's attempt to shift the burden of proving that the air conditioning compressor failed for reasons which may be attributable to Mr. Takeuchi based on Respondent's position that Takeuchi failed to properly maintain the unit which resulted in the failure of the compressor is not well taken by the undersigned and is therefore rejected.

   Based thereon, it is factually concluded that the Respondent, by failing to honor the warranty given to the purchaser, Mr. Takeuchi, amounted to false,

   misleading or deceptive representations in the practice of his contracting profession.

   
   

   CONCLUSIONS OF LAW

   
   

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

   
   

10. The parties were duly noticed pursuant to the notice provisions of Chapter 120, Florida Statutes.

    
    

11. The Respondent, a licensed certified general contractor, is subject to the disciplinary guides of Chapter 489, Florida Statutes.

    
    

12. Respondent, by failing to honor the terms of a warranty agreement he provided to a purchaser of a residence he sold, amounts to conduct violative of Section 489.129(1)(c), Florida Statutes (1981), and such conduct amounts to a derivative violation of Section 455.227(1)(a), Florida Statutes (1981).

RECOMMENDATION

Based on the foregoing findings of fact and conclusions of law, it is hereby recommended that the Respondent's certified general contractors license be suspended for a period of six months and further that that suspension be placed in abeyance for a period of 20 days during which time the Respondent be allowed to make restitution to Mr. Stephen Takeuchi of $236.80, which amount represents the labor charge for replacing the compressor to his residence. Provided that Respondent makes such restitution, it is recommended that that suspension be suspended and that Respondent instead be issued a letter of written reprimand by Petitioner.

DONE AND ENTERED this 24th day of August 1984 in Tallahassee, Florida.

JAMES E. BRADWELL

Hearing Officer

Division of Administrative Hearings The Oakland Building

2009 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 24th day of August 1984.

ENDNOTE

1/ To the extent that the parties' proposed findings, etc. are not incorporated in this Recommended Order, said proposed findings, etc. were deemed either irrelevant, immaterial or not otherwise supported by record evidence.

Additionally, the parties waived the thirty day time requirement that a Recommended Order be entered herein within 30 days following the close of the hearing.

COPIES FURNISHED:

Douglas Shropshire, Esquire Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32301

Ronald B. Finn, Esquire 2500 North University Drive Sunrise, Florida 33322

James Linnan, Executive Director

Board of Construction Industry Licensing Board Department of Professional Regulation

Post Office Box 2 Jacksonville, Florida 32202

Docket for Case No: 83-004024

Orders for Case No: 83-004024