STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

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

)

Petitioner, )

)

vs. ) CASE NO. 87-5603

)

JAMES WELLS, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was held in this case on April 4, 1988, in Tallahassee, Florida, before the Division of Administrative Hearings, by its designated Hearing Officer, Diane K. Kiesling.

APPEARANCES

For Petitioner: David L. Swanson, Esquire

Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32399-0750

For Respondent: Harold S. Richmond, Esquire

227 East Jefferson Street Post Office Box 695 Quincy, Florida 32351

The main issue is whether the building contractor's license held by James Wells, Respondent, should be revoked or otherwise penalized based on the acts alleged in the Administrative Complaint.

The Petitioner, Department of Professional Regulation, Construction Industry Licensing Board, (DPR) presented the testimony of Christiane J. Guignard and had Petitioner's Exhibit 2 admitted in evidence. Respondent Wells testified on his own behalf.

The parties waived filing of a transcript. The parties have filed proposed findings of fact and conclusions of law. All proposed findings of fact and conclusions of law have been considered. A ruling on each proposed finding of fact is made in the Appendix attached hereto and made a part of this Recommended Order.

FINDINGS OF FACT

1. James Wells is a registered building contractor having been issued license number RB 0008753.

   
   

2. In June, 1985, Christiane J. Guignard hired James Wells to do repairing and rebuilding on parts of her home, including roofing work. The roofing work consisted of building a roof extension with hot tar and gravel roofing and a shingle roof.

   
   

3. Guignard maintains that Wells agreed to guarantee his roof work against leaks for five years. Wells maintains that there was no explicit warranty, but he understood that he was responsible for "about a year" for leaks in his work.

   
   

4. Wells did the work agreed on and completed it at the end of July, 1985. Guignard paid Wells a total of $4,575 for all of the work he had done.

   
   

5. Prior to Wells' roofing work, Guignard had three leaks in her roof. Wells' work eliminated those leaks. According to Guignard, she had five leaks after Wells completed his work: 3 leaks around chimneys, 1 leak in a valley, and 1 leak in the overhang roof.

   
   

6. Guignard called Wells and he came to perform repairs at the end of August, 1985. He applied silicon in the valley, around the chimneys and around a picture window, and he inserted extra shingles in the valley. According to Guignard, none of the leaks stopped.

   
   

7. According to Guignard, she called Wells incessantly from the end of August, 1985, to March, 1987, regarding the leaks. Wells came back several times to inspect the roof for leaks.

   
   

8. Wells determined that one leak was the result of an electrician who put a hole and two nails in the roof. Wells repaired this leak even though it was not the result of his work. Wells flashed two chimneys. In June or July, 1985, Wells replaced the shingles in the valley.

   
   

9. Wells repaired all the leaks except the one in the overhang. Wells never found any evidence of a leak in that area. Guignard believes that area is leaking because the siding has become discolored and because she saw rain water running around the siding when she stood under the overhang in a heavy rain.

   
   

10. Wells says that he told Guignard that the possibility existed that excess rain water from a heavy rain could run down the siding because of the slant of the roof. He saw the discoloration of the siding and says it results from the tree buds of a nearby tree falling on the roof, mixing with rain water, and running over the siding. Wells told Guignard that she needed to treat the siding with a water sealer to seal the wood. Sealing the wood was not part of his job and Guignard said she would do it, but never has.

    
    

11. No independent or expert testimony was offered to show that a leak exists in the overhang or that any leak which is alleged to exist is the result of Wells' work.

    CONCLUSIONS OF LAW

    
    

12. The Division of Administrative Hearings has jurisdiction over the parties to and the subject matter of this proceeding. Section 120.57, Florida Statutes.

    
    

13. The Administrative Complaint charges Wells with violation of Section 489.129(1)(m), Florida Statutes, by failing to reasonably honor a guarantee. Section 489.129(1)(m) authorizes penalties against a licensed contractor:

    
    

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

    
    

14. Rule 21E-17.001, Florida Administrative Code, which was not even mentioned in the Administrative Complaint or hearing, is now asserted by DPR to be the appropriate "guideline" for misconduct by failure to reasonably honor a warranty. However, there is no need to consider the guideline because DPR has failed to carry its burden of proof.

    
    

15. DPR has the burden of proving the allegations of the Administrative Complaint by clear and convincing evidence. Here, no expert or independent evidence was presented by DPR to show that the alleged leak exists or that it is the result of Wells' work. It matters not whether there was a guarantee and whether Wells honored it. The necessary elements, which were not proved by clear and convincing evidence, are the existence of a leak and the cause of the leak. Lacking this proof, it cannot be concluded that Wells has performed incompetently or has engaged in misconduct.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Professional Regulation, Construction

Industry Licensing Board, enter a Final Order dismissing the Administrative Complaint against James Wells.

DONE AND ENTERED this 11th day of May, 1988 in Tallahassee, Leon County, Florida.

DIANE K. KIESLING

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 11th day of May, 1988.

APPENDIX TO RECOMMENDED ORDER, CASE NO. 87-5603

The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on the proposed findings of fact submitted by the parties in this case.

Specific Rulings on Proposed Findings of Fact Submitted by Petitioner, Department of Professional Regulation, Construction Industry Licensing Board

1. Proposed finding of fact 1 is adopted in substance as modified in Findings of Fact 1 and 2.

2. Proposed findings of fact 2 and 3 are rejected as being unsupported by the competent, substantial evidence.

3. Proposed findings of fact 4-8 are subordinate to the facts actually found in this Recommended Order.

Specific Rulings on Proposed Findings of Fact Submitted by Petitioner, James Wells

1. Proposed finding of fact 6 is adopted in substance as modified in Finding of Fact 11.

2. Proposed finding of fact 12 is adopted in substance as modified in Finding of Fact 10.

3. Proposed finding of fact 1 is adopted as a Conclusion of Law.

4. Proposed findings of fact 2 and 9-11 are rejected as being unnecessary for the resolution of this matter.

5. Proposed findings of fact 3-5, 7, and 8 are subordinate to the facts actually found in this Recommended Order.

COPIES FURNISHED:

David L. Swanson, Esquire Department of Professional

Regulation

130 North Monroe Street Tallahassee, Florida 32399-0750

Harold S. Richmond, Esquire

227 East Jefferson Street Post Office Box 695 Quincy, Florida 32351

William O'Neil, Esquire Department of Professional

Regulation

130 North Monroe Street Tallahassee, Florida 32399-0750

Fred Seely, Executive Director Construction Industry Licensing Board Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32399-0750

Docket for Case No: 87-005603

Orders for Case No: 87-005603