STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

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

)

Petitioner, )

)

vs. ) CASE NO. 91-0232

)

CHRISTOPHER G. COXON, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, William R. Cave, held a formal hearing in the above-captioned case on December 6, 1991 in Tampa, Florida.

APPEARANCES

For Petitioner: Craig M. Dickinson, Esquire

Department of Professional Regulation 1940 North Monroe Street

Tallahassee, Florida 32399-0792 For Respondent: No appearance

STATEMENT OF THE ISSUE

Whether Respondent's license as a certified roofing contractor in the state of Florida should be revoked, suspended or otherwise disciplined under the facts and circumstances of this case.

PRELIMINARY STATEMENT

Initially, the Respondent was cited by the City of Tampa's Unified Construction Trades Board (UCTB) for failure to properly repair a roof that Respondent had contracted to repair and for removing several rows of roofing tile from the same roof without

replacing such tiles. The UCTB eventually found Respondent in violation of the City of Tampa Code and revoked his permit obtaining privilege. Subsequently, the Petitioner, Department of Professional Regulation (Department), was advised of this violation and revocation, and filed a three-count Administrative Complaint dated June 21, 1990 with the Division of Administrative Hearings on January 9, 1991. By this Administrative Complaint the Department seeks to revoke, suspend or otherwise discipline- Respondent's license as a certified roofing contractor in the state of Florida. As grounds therefor, it is alleged that Respondent: (a) has violated Section 489.129(1)(i), Florida Statutes, by having been disciplined by a local board; (b) has violated Section 489.129(1)(d), Florida Statutes, by willfully disregarding and violating local building code; and (c) has violated Section 489.129(1)(m), Florida Statutes, by being guilty of fraud or deceit or of gross negligence, misconduct, or incompetency in the practice of contracting.

After this matter was transferred to the Division of Administrative Hearings to conduct a formal hearing, the parties attempted on several occasions to settle the matter but to no avail. After several continuances, the matter was rescheduled for hearing on December 6, 1991. On November 25, 1991 the Department filed a Motion to Dismiss on the grounds that Respondent had failed to timely respond to the Department's Requests for Admissions in that Rule 1.370(a), Florida Rules of Civil Procedure, deemed the requests admitted where the response was untimely, and if the requests were admitted then there r remained no dispute as to material fact. Due to the short time remaining before the hearing, an Order to Show Cause was issued requiring Respondent to admit or deny the request and be prepared to present his answers at the hearing in the event he was able to show good cause why he had not timely responded.

The Respondent failed to appear at the hearing. The requests were deemed admitted. The Department withdrew its Motion to Dismiss and proceeded to present its evidence in the case.

At the hearing, the Department presented the testimony of William Darrow, and its exhibits 1 and 2 were admitted as evidence.

There was no transcript provided to the Division of Administrative Hearings in this proceeding. The Department timely submitted a Proposed Recommended Order. A ruling on each of the proposed findings of fact submitted by the Department has been made as reflected in an Appendix to the Recommended Order.

FINDINGS OF FACT

Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant findings of fact are made:

1. At all times material to this proceeding, Respondent, Christopher G. Coxon, held a license as a certified roofing contractor, number CGC029604.

   
   

2. On or about November 15, 1988, Respondent entered into a written contract with John DeCarlucci to repair a leak in the roof of DeCarlucci's residence at 1717 North Oregon Circle, Tampa, Florida.

   
   

3. The contract amount was $400.00, of which Respondent was paid $200.00 by DeCarlucci on November 16, 1988. The Respondent gave DeCarlucci a one-year warranty on his work. The balance owed on the contract was to be paid upon satisfactory completion of the job.

   
   

4. Respondent commenced work on the DeCarlucci residence on November 16, 1988.

   
   

5. On November 16, 1988 Respondent removed two rows of roofing tile from DeCarlucci's roof while attempting to repair the leak in the roof. The Respondent carried these roofing tiles away from DeCarlucci's residence on November 16, 1988 and has never returned these roofing tiles or provided DeCarlucci with any replacement roofing tiles.

   
   

6. On November 23, 1988 the area of the roof that Respondent had attempted to repair leaked.

   
   

7. As a result of several telephone calls to Respondent from DeCarlucci, the Respondent returned to the job site on November 26, 1988 and December 7, 1988, and whatever repairs the Respondent attempted on those dates failed in that the roof continues to leak.

   
   

8. After December 7, 1988 the Respondent did not return to the job site. DeCarlucci attempted to reach Respondent through the remainder of December 1988 and January and February 1989 by telephone and a certified letter but to no avail.

   
   

9. As a result of DeCarlucci filing a complaint with the City of Tampa Building Department on January 5, 1989, the job

   site was inspected by the construction inspector for the building department and the project cited for violation of the building code.

   
   

10. Respondent was notified of the complaint and building code violation. The Respondent was given until February 14, 1989 to correct the leakage and to replace the missing roofing tiles.

    
    

11. As a result of Respondent's failure to take any corrective action toward repairing the roof or replacing the missing roofing tiles, the DeCarlucci complaint was filed with the City of Tampa Unified Construction Trades Board for disciplinary action.

    
    

12. The Respondent subsequently returned the $200.00 to DeCarlucci that he had received from DeCarlucci on the contract price on November 16, 1988.

    
    

13. In its complaint against the Respondent the City of Tampa Unified Construction Trades Board alleged that Respondent's failure to properly repair the roof was a violation of Section 101.1-Covering, Standard for the Installation to Roof Coverings, 1985, edition, Southern Building Code Congress International, Inc., and Section 25-101(5)(10) and (22) Grounds for Disciplinary Action, Penalties, City of Tampa, Building and Construction Regulations.

    
    

14. Respondent was duly notified of the hearing to be held on April 4, 1989 on the allegations.

    
    

15. At the hearing on April 4, 1989 the Respondent was found to have violated those sections set forth in Finding of Fact 13 and by unanimous decision the Board ordered Respondent to cease all construction activity and revoked the Respondent's permitting privilege.

    
    

16. At no time material to this proceeding, has the Respondent made restitution to DeCarlucci for the missing roofing tiles or the cost of labor and materials for installing such tiles.

    
    

17. While Section 489.129(1), Florida Statutes, provides for the assessment of costs associated with the investigation and prosecution of a case, there was no evidence presented by the Department as to the amount of those costs.

    CONCLUSIONS OF LAW

    
    

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

    
    

19. Section 489.129, Florida Statutes empowers the Florida Construction Industry Licensing Board (Board) to revoke, suspend or otherwise discipline the license of Respondent if he is found guilty of any one of those enumerated acts listed in Section 489.129(1)(a) through (n), Florida Statutes.

    
    

20. The Administrative Complaint charges Respondent with violating Section 489.129(1)(d), (i) and (m), Florida Statutes, which provide as follows:

    
    

    (d) Willfully or deliberately disregarding and violating the applicable building codes or laws of the state or of any municipalities or counties thereof.

    * * *

    (i) Being disciplined by any municipality or county for an act or violation of this part, which discipline shall be reviewed by the state board before the state board takes any disciplinary action of its own.

    * * *

    (m) Being found guilty of fraud or deceit or of gross negligence, incompetency, or misconduct in the practice of contracting. (e.s.)

    
    

21. In disciplinary proceedings, the burden is upon the regulatory agency to establish facts upon which its allegations of misconduct are based by clear and convincing evidence. Ferris v. Turlington, 510 So. 2d 292 (Fla. 1987). The Petitioner has sustained its burden as to all three counts of the Administrative Complaint.

RECOMMENDATION

Upon consideration of the foregoing findings of fact and conclusions of law and disciplinary guidelines set forth in Rule 21E-17.001, Florida Administrative Code, it is accordingly,

RECOMMENDED:

That the Board enter a Final Order finding Respondent, Christopher G. Coxon guilty of violation of Section 489.129(1)(d)(i) and (m), Florida Statutes, and for such violation revoke his license as a certified roofing contractor.

DONE and ENTERED this 2nd day of January, 1992, in Tallahassee, Florida.

WILLIAM R. CAVE

Hearing Officer

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, FL 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 2nd day of January, 1992.

APPENDIX

The following constitutes my specific rulings pursuant to Section 120-59(2), Florida Statutes, on all of the Proposed Findings of Fact submitted by the parties in the case.

Rulings on Proposed Finding of Fact Submitted by the Petitioner

1. Each of the following proposed findings of fact are adopted in substance as modified in the Recommended Order. The number in parenthesis is the Finding(s) of Fact which so adopts the proposed findings of fact: 4-6(1); 7-8(2); 9-10(3); 11(4); 13-16(5); 17-18(3); 19(6); 20-21(7); 22-23(8); 24-26(9); 27 28(10); 29-30(11); 31(12); 32(16); 33(13); 34(14); and 35- 36(15).

2. Proposed findings of fact 1-3 are covered in the Preliminary Statement.

3. Proposed finding of fact 12 is rejected as not being supported by competent substantial evidence in the record. See proposed findings of fact 20 and 21 and finding of fact 7.

Rulings on Proposed Findings of Fact Submitted by the Respondent The Respondent did not submit any proposed findings of

fact.

COPIES FURNISHED:

Craig M. Dickinson, Esquire Department of Professional Regulation 1940 North Monroe Street

Tallahassee, FL 32399-0792

Christopher Coxon

554 Carson Drive Tampa, FL 33615

Daniel O'Brien, Executive Director Construction Industry Licensing Board

P.O. Box 2 Jacksonville, FL 32202

Jack McRay, General Counsel Department of Professional Regulation 1940 North Monroe Street

Tallahassee, FL 32399-0792

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

ALL PARTIES HAVE THE RIGHT TO SUBMIT WRITTEN EXCEPTIONS TO THIS RECOMMENDED ORDER. ALL AGENCIES ALLOW EACH PARTY AT LEAST 10 DAYS IN WHICH TO SUBMIT WRITTEN EXCEPTIONS. SOME AGENCIES ALLOW A LARGER PERIOD WITHIN WHICH TO SUBMIT WRITTEN EXCEPTIONS. YOU SHOULD CONTACT THE AGENCY THAT WILL ISSUE THE FINAL ORDER IN THIS CASE CONCERNING AGENCY RULES ON THE DEADLINE FOR FILING EXCEPTIONS TO THIS RECOMMENDED ORDER. ANY EXCEPTIONS TO THIS RECOMMENDED ORDER SHOULD BE FILED WITH THE AGENCY THAT WILL ISSUE THE FINAL ORDER IN THIS CASE.

Docket for Case No: 91-000232

Orders for Case No: 91-000232