STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF PROFESSIONAL ) REGULATION, CONSTRUCTION ) INDUSTRY LICENSING BOARD, )

)

Petitioner, )

)

vs. ) CASE NO. 87-2208

)

JOSEPH JAMES PROCTOR, )

)

Respondent. )

)

RECOMMENDED ORDER

Final hearing in the above-styled action was held on October 27, 1987 in Orlando, Florida, before Mary Clark, Hearing Officer of the Division of Administrative Hearings.

The parties were represented as follows:

For Petitioner: W. Douglas Beason, Esquire

Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32399-0750

For Respondent: Joseph J. Proctor, Pro Se

514 Peachtree Lane

Altamonte Springs, Florida 32701 BACKGROUND AND PROCEDURAL MATTERS

The Administrative Complaint was filed on March 4, 1987, alleging that Joseph James Proctor violated subsections 489.129(1)(d) and (m), F.S. by performing substandard contracting work and by failing to obtain a local building permit for the job. Mr. Proctor denied the charges and requested a formal hearing.

At the commencement of the hearing, Proctor's responses to Petitioner's Request for Admissions were received in evidence without objection. A non- substantive amendment to Paragraph 17 of the Complaint was permitted without objection. That paragraph, as amended, now alleges: "Said representations were that he would return and repair the roof."

The Department presented three witnesses, including the complainant, and submitted nine exhibits, all admitted without objection. Mr. Proctor testified in his own behalf.

After the filing of a transcript, the Department submitted its proposed recommended order. The proposed findings of fact are substantially adopted in this order.

ISSUE

The issue for determination is whether Joseph J. Proctor committed violations of Chapter 489, F.S., relating to the practice of construction contracting, and if so, what disciplinary action should be taken.

FINDINGS OF FACT

1. Joseph J. Proctor has been a registered roofing contractor at all times material to this proceeding. His license number is RC 0026805.

   
   

2. On or about June 13, 1985, Proctor contracted with Dawn Ladson to fix her roof and install two skylights at her home at 401 Basewood Avenue, Altamonte Springs, in Seminole County, Florida.

   
   

3. A few days later, Proctor replaced the existing roof with shingles and installed the two skylights. Ms. Ladson paid him a total of $2,050.00 for the work. Her last payment, $500.00, was made on June 27, 1985. At that point, he was not finished, but asked for a payment and Ms. Ladson decided to pay the full amount.

   
   

4. Installing the skylights required cutting holes in the roof. After placing the skylights Proctor did not come back to seal the interior; as soon as it rained, the roof leaked. After some cajoling by Ms. Ladson, Proctor came back and did some work on sealing the skylights. However, they still leaked.

   
   

   The skylights were still leaking approximately a year later when Ms. Ladson directed her complaints to the Department of Professional Regulation.

   
   

5. At the instigation of Jerome Maynor, DPR Investigator, Ms. Ladson and Proctor executed an agreement dated September 11, 1986, specifying repairs to be done and monetary reimbursement to be made by Proctor. The agreement also specified that Proctor would obtain the necessary permits.

   
   

6. Sometime later, Proctor returned to the Ladson home and replaced the skylights. After that they still leaked. Ms. Lads on asked Proctor to fix them again and he kept saying he would, but he never returned. Eventually the repairs were done by another company.

   
   

7. Proctor never applied for a building permit, as required by Seminole County, for the work he did on Ms. Ladson's home.

   
   

8. Proctor claims, unconvincingly, that he came back to fix the roof each time Ms. Ladson called. He admits that he did not pull the permits, but claims that the arrangement was that Ms. Ladson would handle the permits. He admits that he never saw a permit displayed on the site and it should have been.

   CONCLUSIONS OF LAW

   
   

9. The Division of Administrative Hearings has jurisdiction over the subject matter and parties to this proceeding. Section 120.57(1) and 455.225(4), F.S.

   
   

10. Section 489.129, F.S. provides in pertinent part:

    
    

    489.129 Disciplinary proceedings. --

    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:

    * * *

    (d) Willful or deliberate disregard and violation of the applicable building codes or laws of the state or of any municipalities or counties thereof.

    * * *

    (m) Upon proof that the licensee is guilty of fraud or deceit or of gross negligence, incompetency, or misconduct in the practice of contracting.

    
    

11. The Standard Building Code, adopted by Seminole County, Sections 105.1 and 106.1, require that a building permit be applied for and obtained prior to repairs and alterations of the type performed by Joseph Proctor on Ms. Ladson's home.

    
    

    Proctor had the responsibility, as contractor for the project, to insure that the permit was obtained, whether by himself or the owner, Ms. Ladson. He failed that duty and is guilty of violating subsection 489.129(1)(d), F.S.

    
    

12. Proctor is also guilty of violating subsection 489.129(1)(m), F.S., by his incompetence and misconduct in failing to complete his work as agreed, and failing, as he promised, to repair the damages occasioned by his faulty installation of the skylights.

RECOMMENDATION

Based on the foregoing, it is hereby, RECOMMENDED:

That a final order be entered finding Joseph James Proctor guilty of violating subsections 489.129(1)(d) and (m), F.S., as charged and assessed an administrative fine of $750.00, as proposed by counsel for DPR.

DONE and RECOMMENDED this 17th day of December, 1987, in Tallahassee, Florida.

MARY CLARK

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 17th day of December, 1987.

COPIES FURNISHED:

W. Douglas Beason, Esquire Department of Professional

Regulation

130 North Monroe Street Tallahassee, Florida 32399-0750

Joseph J. Proctor

514 Peachtree Lane

Altamonte Springs, Florida 32701

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

Jacksonville, Florida 32201

William O'Neil, Esquire General Counsel

Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32399-0750

Docket for Case No: 87-002208

Orders for Case No: 87-002208