STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF PROFESSIONAL )

REGULATION, CONSTRUCTION )

INDUSTRY LICENSING BOARD, )

)

Petitioner, )

)

vs. ) CASE NO. 88-0733

)

ALBERT J. RUOCCO, )

)

Respondent. )

)

RECOMMENDED ORDER

Final hearing in this action was held in Melbourne, Florida on April 18, 1988, before Mary Clark, Hearing Officer of the Division of Administrative Hearings.

The parties were represented as follows:

For Petitioner: David E. Bryant, Esquire

Bryant, Reeves & Deer

220 East Madison Street, Suite 530 Tampa, Florida 33602

For Respondent: No Appearance

BACKGROUND AND PROCEDURAL MATTERS

Petitioner's Administrative Complaint filed on November 2, 1987, alleges that Albert J. Ruocco committed violations of Sub-sections 489.129(1)(d) and (m), F.S., by failing to provide termite soil treatment and by telling a customer that the treatment had been provided.

The issue, therefore, is whether these violations occurred, and if so, what disciplinary action should be taken.

The hearing was scheduled for 1:00 p.m. At 1:30, the Respondent had not appeared, and the hearing was convened. No requests for continuance or other communications were received from Respondent. The Notice of Hearing was mailed to his last address of record and was not returned.

Petitioner called the following witnesses in support of its allegations: John Allen, Investigator

Department of Professional Regulation

Douglas C. Vanderpoest, Owner Slug-A-Bug, and

Howard Stott, Brevard County Building Inspector

In addition, Petitioner submitted five exhibits as documentary evidence.

After the hearing, Petitioner filed a proposed recommended order, including proposed findings of fact. The findings are adopted herein, with the exception of paragraphs 3, 4 and 5, which are rejected as unsupported by competent evidence.

FINDINGS OF FACT

1. Respondent, Albert J. Ruocco, is licensed as a registered building contractor in the State of Florida, holding license number RB00030112. His last address in the Department's file is 604 Citrus Court, Melbourne Beach, Florida 32951.

   
   

2. Sometime prior to the date of the administrative complaint, the Department received a complaint from Mrs. Dale Normington that Ruocco told her he had obtained a termite treatment for the addition he constructed on her home, but that no treatment was done.

   
   

   DPR investigator, John Allen, told Mrs. Normington to send her back-up information.

   
   

3. John Allen received in the mail a copy of the purported contract between the Normingtons and Rivers Edge Construction Company, Inc., Ruocco's Company. He also received a series of cancelled checks and a copy of a letter purportedly sent by the Normingtons to Albert Ruocco.

   
   

4. John Allen checked the Department's licensing files and obtained the licensing information on Ruocco. He also personally served the Administrative Complaint on Ruocco, but did not, to the best of his recollection, discuss the complaint with him or have any other contact with him. Ruocco never responded to any investigative correspondence.

   
   

5. Douglas Vanderpoest, owner of Slug-A-Bug, a pest control company, established that his company never treated the addition to the Normington resident.

   
   

6. Brevard County Building Inspector, Howard Stott, knows Albert Ruocco and is familiar with the addition Ruocco installed for the Normingtons in 1985. A permit was obtained and Stott performed three inspections, including the slab, pre-lath and final on the addition.

   
   

7. Brevard County requires evidence of termite treatment of soil for any new construction or modifications to an existing structure. The practice is usually for the inspector to require a receipt or evidence of treatment prior to approving the slab.

   
   

   Stott does not remember whether he required the evidence on the Normington job. The permit in those days did not have a space to indicate the termite treatment. However, Stott did approve the slab, as noted on the permit.

   CONCLUSIONS OF LAW

   
   

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

   
   

9. The Construction Industry Licensing Board may discipline a contractor's license if the contractor has been found guilty of any of a series of violations described in Section 489.129, F.S. Albert J. Ruocco is charged with,

   
   

   wilful or deliberate disregard and

   violation of the applicable building codes or laws of the state or of any municipalities or counties thereof, (Section 489.129(1)(d), F.S.)

   and

   fraud or deceit or gross negligence, incompetency, or misconduct in the practice of contracting. (Section 489.129(1)(m),

   
   

10. Neither the complaining party nor Albert Ruocco testified. The facts contained within the documents received in the mail by Investigator Allen, assuming their authenticity, cannot be considered as true. The documents are hearsay, as described in Section 90.801, F.S. The documents are not sufficient to support a finding of fact without competent corroboration. Section 120.58(1)(a), F.S.

    
    

    No other witnesses nor documentary evidence established that,

    
    

    1. Ruocco agreed to provide termite treatment,

       
       

    2. Ruocco said the treatment was provided, or

       
       

    3. Ruocco did not provide the treatment.

Moreover, the testimony by the building inspector more strongly inferred that the treatment was done than it was not.

4. Petitioner failed to make a prima facie case that Respondent committed the alleged violations.

RECOMMENDATION

Based on the foregoing, it is, hereby RECOMMENDED:

That the Administrative Complaint dated November 2, 1987, be dismissed.

DONE and RECOMMENDED this 20th day of May, 1988, 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 20th day of May, 1988.

COPIES FURNISHED:

David E. Bryant, Esquire Bryant, Reeves & Deer

220 East Madison Street Suite 530

Tampa, Florida 33602

Albert J. Ruocco 604 Citrus Court

Melbourne Beach, Florida 32951

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

Jacksonville, Florida 32201

William O'Neil General Counsel

Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32399-0750

Docket for Case No: 88-000733

Orders for Case No: 88-000733