STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

STATE OF FLORIDA, DEPARTMENT ) OF PROFESSIONAL REGULATION, )

)

Petitioner, )

)

vs. ) CASE NO. 86-1009

)

JOHN ALVIN NOWLING, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, K. N. Ayers, held a public hearing in the above- styled case on July 24, 1986, at Sarasota, Florida.

APPEARANCES

For Petitioner: Legran Saunders, Esquire

Lee Nelson, Esquire

Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32301

For Respondent: John A. Nowling, pro se

4450 Wilkson Road

Sarasota, Florida 33583

By Amended Administrative Complaint filed July 14, 1986, the Department of Professional Regulation, Petitioner, seeks to revoke, suspend, or otherwise discipline the license of John Alvin Nowling, Respondent. As grounds therefor it is alleged Respondent violated various provisions of Chapter 489, Florida Statutes, when he contracted to renew the roof on a residence in Sarasota, did the work without first obtaining a building permit, without being licensed in Sarasota, by operating with an expired state roofing contractor's license, by being found guilty of operating a business without a license, by doing an inefficient roof replacement, and by failing to honor the warranty given.

At the hearing Petitioner called two witnesses, Respondent testified in his own behalf, and eleven exhibits were admitted into evidence.

A Proposed Recommended Order has been submitted by Petitioner. Those proposed findings are approved with the exception of Proposed Findings 10 and 11 which are rejected, and 12 and 13 which are deemed immaterial or unnecessary to the results reached.

FINDINGS OF FACT

1. Petitioner was registered by the State of Florida as a roofing contractor in October 1976, and this registration remained in effect until it expired June 30, 1977. It has never been renewed.

   
   

2. Subsequent to obtaining his registration, Respondent gave up his business and started working for another licensed roofing contractor. Not having need for his license, the Respondent did not renew his registration when it expired in 1977.

   
   

3. In 1984, Respondent agreed to replace the roof on the residence of Mr. and Mrs. Snow in Sarasota. Mr. Snow is a friend of Respondent's brother and Respondent and Snow agreed the former would do the job for $5,000. Respondent guaranteed the roof for two years.

   
   

4. Snow paid the $5,000 for which he had contracted and Respondent replaced the roof. At the time this work was done Respondent held an active license in Sarasota County (Exhibit 9) but was not licensed by the City of Sarasota when he replaced the roof on Snow's residence. Nor did Respondent first obtain a building permit from the City of Sarasota required for the roofing job.

   
   

5. After the work was completed Snow became unhappy with the roofing job and Mrs. Snow wanted more gutters added. Respondent had replaced the gutters and drains. He added forty feet of gutter to the rear of the house to replace the ten feet of gutter he removed. He also replaced the drains but, Mrs. Snow was not satisfied.

   
   

6. Following the repair, a leak showed up and the Respondent was called to fix it. Upon inspecting the roof and the leak, Respondent concluded the leak was coming from the screen room over the pool and was not from an improperly laid roof.

   
   

7. Snow complained to the Sarasota Building Inspection Department who investigated and preferred charges of alleged violation against Respondent for failure to obtain a permit and for working in Sarasota without a city license. Criminal charges were also brought against Respondent for doing the roof work on Snow's residence without having an occupational or city contractor's license to do so. Respondent was found guilty of this charge and placed on probation.

   
   

8. Respondent subsequently applied for and was issued a City of Sarasota license as a roofing contractor and obtained a permit for the roofing job on the Snow's residence. A final inspection by Sarasota Building Department concluded the work was done in full compliance with Sarasota Code.

   
   

9. Respondent readily acknowledges that he did not have, initially, a valid license when he did the Snow's roof, that he failed to obtain a permit for this job, and all other charges, except that involving an improperly installed roof.

   
   

   CONCLUSIONS OF LAW

   
   

10. The Division of Administrative Hearings has jurisdiction over the parties to, and the subject matter of, these proceedings.

11. Respondent readily admits to violations of Section 489.129(1)(j) and 489.115(3)(a), Florida Statutes, by failing to renew his registration and contracting with a delinquent license; of Section 489.129(1)(j) and 489.117(2), Florida Statutes, by contracting in a locality for which he was not licensed; and Section 489.129(1)(b), Florida Statutes, by being found guilty of a crime relating to the practice of contracting or the ability to practice contracting. Respondent denied failure to honor his warranty and that he is guilty of fraud or deceit or of gross negligence, incompetent or misconduct in the practice of contracting.

    
    

12. Here Petitioner has the burden of proving the allegations. Balino v. Department of Health and Rehabilitative Services, 348 So.2d 349 (Fla. 1st DCA 1977). Since these changes could result in the loss of a valuable license, "the critical matters in issue must be shown by evidence which is indubitably as 'substantial' as the consequences," Bowling v. Department of Insurance, 394 So.2d 165 (Fla. 1st DCA 1981). Accordingly, the charges must be proved by clear and convincing evidence. The only evidence presented that the work was done in a negligent manner was the testimony of Mrs. Snow that the roof leaked and the gutter spouts and drains were not properly replaced. Respondent denied both of these conditions existed and the City Building Inspector, who issued the final approval, after the permit was obtained, gave no indication that the work was done in other than a satisfactory manner. At best, the evidence regarding the workmanship done on the roof replacement is in equipoise. This does not even reach a preponderance of the evidence standard.

    
    

13. The offenses which Respondent admits having committed are not the type for which a license should be revoked. Without a finding that Respondent did defective workmanship his violations are of the regulatory type which are designed to keep incompetent contractors from causing harm to the public. No evidence was presented indicating Respondent is such a danger to the public.

    
    

14. From the foregoing it is concluded that Respondent is guilty of violation of Section 489.129(1)(b),(d) and (j), and Section 489.117(2), Florida Statutes, and is not guilty of all other charges.

    
    

15. In view of the fact that Respondent has not used his license for some eight years, suspension of the license does not seem an appropriate penalty. It is

RECOMMENDED that a FINAL ORDER be entered finding John A. Nowling guilty of violating Sections 489.117(2), and 489.l29(1)(b),(d), and (j), Florida Statutes, and given an administrative fine of $250.00.

ENTERED this 2nd day of September, 1986, at Tallahassee, Florida.

K. N. AYERS

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 2nd day of September, 1986.

COPIES FURNISHED:

Fred Seely, Executive Director Construction Industry Licensing Board Department of Professional Regulation Post Office Box 2

Jacksonville, Florida 32201

Fred Roche, Secretary Department of Professional

Regulation

130 North Monroe Street Tallahassee, Florida 32301

Salvatore A. Carpino, Esquire General Counsel

Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32301

Lagran Saunders, Esquire Lee Nelson, Esquire Department of Professional

Regulation

130 North Monroe Street Tallahassee, Florida 32301

John Alvin Nowling 4450 Wilkson Road

Sarasota, Florida 33583

=================================================================

AGENCY FINAL ORDER

=================================================================

STATE OF FLORIDA DEPARTMENT OF PROFESSIONAL REGULATION CONSTRUCTION INDUSTRY LICENSING BOARD

DEPARTMENT OF PROFESSIONAL REGULATION,

Petitioner,

vs. CASE NO. 55798

DOAH CASE NO. 86-1009

JOHN ALVIN NOWLING,

License no. RC 0029005,

Respondent.

/

FINAL ORDER

THIS MATTER came before the Construction Industry Licensing Board pursuant to Section 12O.57(1)(b)(9), Florida Statutes, on January 8, 1987, in Tampa, Florida for consideration of the Recommended Order (a copy of which is attached hereto and incorporated herein by reference) issued by the hearing officer in the above styled case. The Petitioner was represented by Douglas A. Shropshire. The Respondent was not present.

Upon consideration of the hearing officer's Recommended Order, and there being no exceptions filed and the arguments of the parties and after a review of the complete record in this matter, the Board makes the following findings:

FINDINGS OF FACT

1. The hearing officer's findings of fact are hereby approved and adopted.

   
   

2. There is competent, substantial evidence to support the hearing officer's findings of fact.

CONCLUSIONS OF LAW

1. The Board has jurisdiction of this matter pursuant to the provisions of Section 120.57(1), and Chapter 489, Florida Statutes.

   
   

2. The hearing officer's conclusions of law, are hereby approved and adopted in toto.

   
   

3. There is competent substantial evidence to support the Board's findings and conclusions.

The Board, having considered the fraudulent nature of the actions found to have been engaged in by the Respondent and finding said actions to be severe in nature, rejects as inappropriate the penalty recommended by the Hearing Officer.

WHEREFORE, IT IS HEREBY ORDERED AND ADJUDGED:

Respondent shall pay an administrative fine in the amount of five thousand dollars ($5,000) to the Florida Construction Industry Licensing Board.

All of Respondent's licensure to practice contracting shall be suspended for ten (10) years and indefinitely thereafter until Respondent pays said fine.

Pursuant to Section 120.59, Florida Statutes, the Parties are hereby notified that they may appeal this Order by filing one copy of a Notice of Appeal with the Clerk of the Department of Professional Regulation, 130 N. Monroe Street, Tallahassee, Florida 32301, and by filing the filing fee and one copy of the Notice of Appeal with the District Court of Appeal within thirty

(30) days of the effective date of this Order.

This Order shall become effective upon filing with the Clerk of the Department of Professional Regulation.

DONE AND ORDERED this 18th day of February, 1987.

Stanton M. Alexander, Chairman Construction Industry Licensing

Board

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a true and correct copy of the foregoing Final Order has been provided by certified mail to

John A. Nowling 4450 Wilkson Road

Sarasota, Florida 33583

and by hand delivery/United States mail to the Board Clerk, Department of Professional Regulation and its Counsel, 130 North Monroe Street, Tallahassee, Florida 32301, on or before 5:00 p.m., this 20th day of February, 1987.

Robin Ackerman

F I L E D

Department of Professional Regulation Florida Construction Industry Licensing Board

BOARD CLERK

CLERK Burt Germay DATE 2/20/87

Docket for Case No: 86-001009

Orders for Case No: 86-001009