STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF PROFESSIONAL ) REGULATION, )

)

Petitioner, )

)

vs. ) Case No. 86-5037

) 87-0160

WILLIE COLLIER, )

)

Respondent. )

)

RECOMMENDED ORDER

Final hearing in the above-styled action was held on February 26, 1987, in Orlando, Florida, before Mary Clark, Hearing Officer of the Division of Administrative Hearings.

The parties were represented as follows:

For Petitioner: G. Vincent Soto, Esquire

Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32301

For Respondent: Beryl B. Thompson, Esquire

924 North Magnolia Avenue, Suite 100

Orlando, Florida 32803 BACKGROUND

These cases arose from separate Administrative Complaints filed on November 26, 1986, in DPR cases #66976 and 68894. They were consolidated, sua sponte, by order entered on January 26, 1987. At the commencement of the hearing, after some procedural discussion on the record, the Department of Professional Regulation (DPR) dismissed the Administrative Complaint in case #87-0160 (DPR #68894).

Also at the commencement of the hearing, Respondent's motion for a continuance was denied as being untimely. The motion was filed on February 25, 1987, the day before the hearing.

Petitioner's evidence at hearing consisted of the testimony of the complaining witness, Robert Guarante, and Respondent, Willie Collier. Five exhibits were admitted. Respondent presented no evidence, other than his own testimony.

After hearing, both parties submitted proposed recommended orders. Rulings on the proposed findings of fact are found in the attached appendix.

ISSUE:

The issue for resolution in this proceeding is whether Respondent, a registered roofing contractor, violated the following provisions of Chapter 489, Florida Statutes, as alleged:

1. Subsection 489.129(1)(m), by gross negligence, incompetence, misconduct, fraud, or deceit in the practice of contracting;

2. Subsection 489.129(1)(c), by misleading, deceitful, or untrue representations, in violation of subsection 455.227(1)(a);

3. Subsection 489.129(1)(j), by failure to discharge supervisory duty as a qualifying agent, in violation of section 489.119 and 489.105(4).

FINDINGS OF FACT

1. At all times relevant, Willie James Collier was licensed as a registered roof contractor in the State of Florida, having been issued license number RC0040382. At all times relevant, Willie James Collier qualified the roofing business he owns and manages, A-1 Collier Roofing, at 2230 Blossom Terrace, Orlando, Florida 32809.

   
   

2. On May 5, 1982, Willie Collier contracted with Robert P. Guarante to reroof Mr. Guarante's residence at 2525 Venetian Way, Winter Park, Florida. The terms of the written contract included a five-year guarantee on the work.

   
   

3. The work was completed on May 6, 1982, and Guarante paid the negotiated amount of $4800.00.

   
   

4. A few weeks after the installation, there was some problem with the flashing around the chimney. Guarante had no difficulty contacting Collier and the necessary repairs were made.

   
   

5. Sometime around November 1985, Guarante detected discoloration, like rust stains, under the eaves. He first had the gutter replaced, but afterward figured the problem was seepage from the roof.

   
   

6. He attempted to call Willie Collier. There were no answers until he called one night and was told that Willie Collier was not at that number.

   
   

7. Mr. Guarante then drove to the street address he had for the roofing company. It was a residential area and he did not get out of the car and knock on doors.

   
   

8. He sent a letter by regular mail to 2230 Blossom Terrace, Orlando, asking that Willie Collier call him immediately. The letter was not returned, nor was it answered. He contacted the Better Business Bureau, but this did not result in a contact with Mr. Collier.

   
   

9. Another roofer, Robin Hood, told Mr. Guarante that there was a depression collecting water on the outer extremity of the roof, due to improper installation. Robin Hood built up the depression and charged Guarante $70.00. There were no more problems, and six months later the house was sold.

10. Mr. Collier denies receiving any letters from Mr. Guarante or the Better Business Bureau. He was in financial difficulty in 1985, and the phone was disconnected three times. At one point the phone was in his wife's name. His licensing record reveals that his license was under suspension during 1985. He did not maintain an advertisement in the Yellow Pages during 1985.

    
    

11. His address has not changed. It remains the same as it was from the first license application in 1976: 2230 Blossom Terrace, Orlando, Florida 32809.

    
    

    CONCLUSIONS OF LAW

    
    

12. The Division of Administrative Hearings has jurisdiction over the parties and subject matter of this proceeding. Section 120.57(1), Florida Statutes, Section 455.225(4), Florida Statutes.

    
    

13. A violation of subsection 489.129(1)(m), Florida Statutes requires proof that the licensee is guilty of fraud or deceit or of gross negligence, incompetency, or misconduct in the practice of contracting".

    
    

14. The only evidence of Mr. Collier's failure to properly install the Guarante roof is Mr. Guarante's observation of seepage under the eaves and another contractor's opinion expressed to Mr. Guarante that the roof was leaking due to faulty installation. The competency of the contractor who expressed the opinion was not established. Further, this opinion is hearsay and is insufficient to support a finding of fact without corroboration. Section 120.57(1)(a), Florida Statutes. Any inference that the installation was defective because over three years later seepage appeared under the eaves is too insubstantial to provide the necessary corroboration.

    
    

15. The Administrative Complaint alleges that Willie Collier committed misconduct or deceit by failing to respond to service requests under his guarantee. He did respond promptly and made repairs on one occasion. Evidence presented at the hearing was insufficient to establish that he received actual notice when the customer later felt he had problems with the roof.

    
    

16. In his Proposed Recommended Order, counsel for Petitioner cites authorities for the generally accepted presumption that a properly addressed and stamped letter mailed pursuant to standard procedure is received by an addressee. That presumption is to be considered in the light of other facts and circumstances. 23 Fla. Jur 2nd, Evidence and Witnesses, Section 117. Here, Mr. Guarante claims he mailed the letter; Respondent claims he never received it. Both claims are credible. Unlike the circumstances in the cases cited by Petitioner, Guarante's mailing was not "in the regular course of business". Willie Collier demonstrated his willingness to honor his warranty with his earlier response to Mr. Guarante. It would be manifestly unfair to impose discipline on his license under these circumstances.

    
    

17. The form letter from the Better Business Bureau to Robert Guarante, admitted over objection as Petitioner's Exhibit #4, is dated January 20, 1985. It references "A-I Collier Roofing" and states, "This company is no longer in business and correspondence with them is at a standstill ... " While the date is likely a typographical error, the letter was unauthenticated and is hearsay as to the state of the company and any correspondence. No actual attempts to contact were described.

18. No evidence whatsoever was presented regarding "misleading, deceitful, or untrue representations," in violation of section 455.227(1)(a), Florida Statutes.

    
    

19. The remaining allegation is that Willie Collier failed to discharge supervisory duties as a qualifying agent in violation of sections 489.105(4), 489.119, and 489.129(1)(j), Florida Statutes.

    
    

20. A contractor who is a qualifying agent has a statutorily imposed professional duty to supervise the projects of the company for which he qualifies. Alles v. DPR, Construction Industry Licensing Board, 423 So 2nd 624, 626-7 (Fla 5th DCA 1982); Gatwood v. McGee, 475 So 2nd 720 (Fla. 1st DCA, 1985).

    
    

21. Petitioner argues that Collier should have contacted his warranty- holders regarding his telephone number change, that he should have contacted the Better Business Bureau and the Florida Construction Industry licensing Board about his telephone number change, that he should have posted a sign outside his place of business and that he should have supervised his correspondence at his listed address. Nothing in the statutes or rules of the Board define those acts as duties of a registered contractor. No expert testimony or other evidence was adduced at hearing to establish exactly what Willie Collier's supervisory duties would be under the circumstances which existed in his case in 1985: his license was under suspension, he was in financial difficulty, and he could not keep his telephone services.

    
    

22. In license disciplinary cases, Petitioner has the burden of proving, by competent substantial evidence, both the applicable standard of conduct and the deviation from that standard. Purvis v. Department of Professional Regulation, Board of Veterinary Medicine, 461 So 2nd 134, 137 (Fla 1st DCA 1984)

when the standards of conduct to

be enforced are not explicitly fixed by statute or by rule, but depend on such debatable expressions as in the applicable regular course of business; when the conduct to be assessed is past, beyond the actor's power to conform it to agency standards announced prospectively; and when the proceeding may result in the loss of a valuable business or professional license, the critical matters in issue must be shown by evidence which is indubitably as "substantial as the consequences."

Purvis, supra, at 137, citing Bowling v.

Department of Insurance, 394 So 2nd 165, 172

(Fla 1st DCA 1981)

Petitioner failed to meet this burden. Based on the foregoing, it is hereby

RECOMMENDED:

That a Final Order be issued,

1. dismissing the Administrative Complaint in Case #87-0160, consistent with the ore tenus dismissal by counsel for Petitioner;

   
   

2. dismissing the Administrative Complaint in Case #86-5037, consistent with the findings and conclusions provided herein.

DONE and RECOMMENDED this 12th day of May, 1987, in Tallahassee, Florida.

MARY CLARK

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 12th day of May, 1987.

APPENDIX TO RECOMMENDED ORDER,

The following constitute my specific rulings on the parties' proposed findings of fact:

Petitioner

1. through 3. Adopted in Paragraph #1.

4. and 5. Adopted in Paragraphs #2 and 3.

1. Adopted in paragraph #3.

2. and 8. Adopted in paragraph #2.

1. Adopted in substance in paragraph #4.

2. Adopted in paragraph #5. However this paragraph does not relate back to paragraph 9, as there was no competent evidence that the problems in 1985 were governed by the guarantee.

3. Rejected as immaterial. Further, while the proposed fact is a reasonable inference, it is not stated on the face of Exhibit #3.

4. Adopted in paragraph #5.

5. through 15. Adopted in paragraph #6.

1. Rejected as unnecessary.

2. Adopted in part in paragraph #8, otherwise rejected as immaterial.

3. Rejected as immaterial.

4. Rejected as unsupported by competent evidence. The letter from the Better Business Bureau is uncorroborated hearsay, and does not state that contacts were actually made.

5. Adopted in paragraph #6.

6. Adopted in substance in paragraph #8.

7. through 26. Rejected as immaterial.

1. Adopted in substance (as to seepage) in paragraph #5.

2. Adopted in substance (as to the suspension in paragraph #8.)

3. Rejected as immaterial.

Respondent

(Paragraphs 1-5 in Respondent's proposed order are Background statements)

1. Adopted in paragraph #1.

2. and 8. Adopted in paragraph #2.

1. Rejected as unnecessary, except for the warranty, which is covered in paragraph #2.

2. Adopted in paragraph #3.

3. through 13. Adopted in paragraph #4.

14. and 15. Adopted in paragraph #5.

1. Adopted in paragraph #6.

2. and 18. Adopted in paragraph #7.

19. through 22. Adopted in paragraph #8.

23. through 26. Rejected as unnecessary

COPIES FURNISHED:

G. Vincent Soto, Esquire Department of Professional Regulation

130 North Monroe St. Tallahassee, Florida 32301

Beryl B. Thompson, Esquire 924 North Magnolia Avenue Suite 100

Orlando, Florida 32803

Van Poole, Secretary Department of Professional Regulation

130 North Monroe St. Tallahassee, Florida 32399-0750

Joseph A. Sole General Counsel

Department of Professional Regulation

130 N. Monroe St.

Tallahassee, Florida 32399-0750

Fred Seely, Executive Director Construction Industry Licensing Post Office Box 2 Jacksonville, Florida 32201

Docket for Case No: 86-005037

Orders for Case No: 86-005037