STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

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

)

Petitioner, )

)

vs. ) CASE NO. 82-052

)

LEONARD L. CLARK, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, James E. Bradwell, held a public hearing in this case on June 17, 1982, in Deland, Florida. The hearing officially closed on July 1, 1982, the date the parties were afforded leave to submit post-hearing memoranda supportive of their respective positions. 1/

APPEARANCES

For Petitioner: Michael Egan, Esquire

ROBERTS, EGAN & ROUTA, P.A.

Post Office Box 1386 Tallahassee, Florida 32302

For Respondent: Leonard L. Clark, pro se

246 West Palmetto Avenue Deland, Florida 32720

ISSUES

Whether Respondent's activity and conduct in the performance of a roofing contract constitutes abandonment of that contract in violation of Section 489.129(1)(k), Florida Statutes (1979), and whether Respondent willfully or deliberately violated the Volusia County Building Code, thereby contravening Section 489.129(1)(d), Florida Statutes (1979), by failing to obtain a building permit prior to commencing construction of the subject project.

Based upon my observation of the witnesses and their demeanor while testifying, the arguments of counsel and Respondent, the Petitioner's proposed recommended order and the entire record compiled herein, I hereby make the following:

FINDINGS OF FACT

1. By its Administrative Complaint signed October 21, 1981, Petitioner, Florida Construction Industry Licensing Board, seeks to take disciplinary action against Respondent and against his license as a registered roofing contractor.

   
   

2. Respondent, Leonard L. Clark, is a registered roofing contractor who holds License No. RC 0020933 which has been issued by Petitioner. Respondent does business under the entity Clark Roofing.

   
   

3. On January 15, 1981, Respondent entered into a contract with one Mae Coogan, to reroof her residence. The contract specifically required Respondent to "replace any bad wood," and provide a ten (10) year workmanship warranty. (Petitioner's Exhibit No. 1.) Additionally, Respondent agreed to install a 1 x

   2 inch strip and a brown aluminum facia at an extra cost of $200.00. (Petitioner's Exhibit No. 1 and testimony of John Coogan.)

   
   

4. Mrs. Mae Coogan is an elderly woman and is incapacitated. Her son, John Coogan, who lives with her in her residence, advised her during the negotiations of the subject contract, and testified as a witness in the proceedings herein. Respondent and John Coogan's testimony establishes that construction on the subject project commenced on February 10, 1981, and ceased on March 28, 1981. At that time, based upon Respondent's representation that the job was complete, Mr. Coogan paid Respondent the entire $2,500.00 due under the terms of the contract. Shortly thereafter, Mr. Coogan discovered evidence of "bad" or "rotten wood." Mr. Coogan immediately apprised Respondent of this, whereupon Respondent initially told him that he would be back to the job site to take care of any problems that existed with the reroofing project.

   
   

5. There is conflicting evidence as to whether or not there was a subsequent telephone conversation between Respondent and Mr. Coogan following a letter which Respondent found offensive. Respondent claims that there was such a conversation and that the parties became angry at each other. At that juncture, the parties were unable to resolve their differences. Efforts by the parties to resolve their differences reached a stalemate, and Respondent did not again visit the project site or otherwise inspect the claimed damaged by Mr. Coogan.

   
   

6. Mr. Coogan, to substantiate his claim that there was in fact rotten or bad wood left exposed in the overhang, rafters and beams surrounding the roof, introduced several photographs which depicted the condition of the wood on the roof. (Petitioner's Composite Exhibit No. 3.) Respecting the fact that there was rotten wood, as claimed by Mr. Coogan, in the rafters and overhang, Respondent admitted the existence thereof.

   
   

7. There is also a question about the possibility of rotten wood being covered by Respondent's employees and not replaced as required by the contract. The particular area in question is a portion of a flat roof which sagged in several places. Mr. Coogan claims that he had been advised that this was due to rotten wood underneath the shingles in an area in which he specifically claims to have asked Respondent to allow him to inspect the exposed-wood surface prior to the time in which it was covered with asphalt shingles. Respondent's workers covered this area of the roof without permitting Mr. Coogan the opportunity to inspect it. Mr. Coogan testified that the roof continued to sag in the identical places where it sagged prior to the reroofing.

8. In this regard, Respondent admits that he might have agreed to allow Mr. Coogan an opportunity to inspect the exposed roof once the shingles were removed and prior to the time that he recovered (reroofed) the flat roof. Respondent further testified that this was not due to any effort on his part to conceal or otherwise hide rotten wood and, in fact, he claimed to have covered or replaced any bad or rotten wood. In this regard, Mr. Coogan noticed at least four water leaks from his roof prior to the time that Respondent reroofed his mother's house; however, he testified, on cross-examination, that he has not seen any leaks since Respondent has completed the subject project.

   
   

9. Bob McConnell, Volusia County Building Inspector for approximately five

1. years, inspected the roofing job completed by Respondent for Mrs. Coogan on July 28, 1981. Mr. McConnell found that the roofing job did not comply with the contract in the following regards:

   
   

   1. The 1 x 2 inch strip beneath the brown aluminum facia, called for as an extra, was not installed;

   2. There was visible rot in the sheathing;

   3. A short hip (rafter) was replaced with unsound wood; and

   4. A rafter tail had visible rot.

In this regard, Mr. McConnell, while also reporting that there were soft spots in the built-up roof, could not testify with certainty that they were the result of wood rot.

1. Respondent testified that he has tried to contact Mr. Coogan on several occasions to correct any claimed deficiency. Respondent stands, at this time, willing to correct any deficiency that exists or to correct any problem which stems from his deviation from the contract. In this regard, Respondent has offered, and no offers, to remove the shingles from the entire roof and allow for it to be inspected by Respondent or any designated roofing contractor whom Coogan or Petitioner selects. Respondent will replace any "bad" or "rotten" wood which he has been claimed to have covered. However, Respondent expects to be paid for reroofing this job in the event that in an inspection reveals that no "bad" or "rotten" wood was covered as Mr. Coogan and Petitioner claim.

   
   

2. Inspector McConnell has known Respondent in excess of twenty-five (25) years and is unaware of any claim that Respondent has performed any unworkmanlike or "shoddy" roofing repairs. Finally, in this connection, Respondent introduced letters from three (3) area builders who attested to Respondent's excellent workmanship. (Respondent's Composite Exhibit No. 3.)

   
   

   CONCLUSIONS OF LAW

   
   

3. The Division of Administrative Hearings has jurisdiction over the subject matter and the parties to this action. Chapter 120.57(1), Florida Statutes.

   
   

4. The parties were duly noticed pursuant to the notice provisions of Chapter 120, Florida Statutes.

   
   

5. The authority of the Petitioner is derived from Chapter 489, Florida Statutes.

6. The Respondent is a licensed, registered roofing contractor who conducts business under the entity, Clark Roofing Company. As such, Respondent is subject to the guides of Chapter 489, Florida Statutes.

   
   

7. Section 489.129(1)(k), Florida Statutes (1979), authorizes the Petitioner, Florida Construction Industry Licensing Board, to discipline contractors for the following reasons:

   
   

   Abandonment of a construction project in which the contractor is engaged or under contract as a contractor. A project is to be considered abandoned after 90 days if the contractor terminates a project without notification to the prospective owner and without just cause.

   
   

   Respondent's admission that the documentary evidence introduced establish that Respondent failed to replace all rotten wood, which was required pursuant to the terms of the contract involved herein, and provide a basis for a conclusion, and it is so concluded, that Respondent failed to complete the work called for therein. Further, the fact that Mr. Coogan and Respondent had differences concerning what was required pursuant to the terms of the contract provided no basis for Respondent to continuously fail to return to the project to complete that which was required pursuant to the terms of the contract. It is, therefore, concluded that Respondent abandoned the subject project, as alleged.

   
   

8. Insufficient evidence was offered to establish that the Respondent deliberately or willfully violated the Volusia County Building Code, by failing to obtain a building permit prior to commencing construction in violation of Chapter 489.129(1)(d), Florida Statutes (1979), as alleged.

RECOMMENDATION

Based on the foregoing findings of fact and conclusions of law, it is hereby

RECOMMENDED:

That the Respondent be placed on probation for a period of two (2) years and that the term of probation be suspended for a period of sixty (60) days, during which time Respondent shall be allowed an opportunity to return to the Coogan residence and replace any existing exposed "rotten" or "bad" wood which should have been replaced pursuant to the terms of the contract. In the event that the Respondent properly completes the replacement of the rotten or damaged wood on this project, following an inspection by one of Petitioner's agents, it is further

RECOMMENDED:

That the entire term of the probation be suspended. In the event that Respondent fails to properly complete this project, following an inspection by one of Petitioner's agents, it is further

RECOMMENDED:

That the entire term of probation be instituted without the necessity of further hearing.

RECOMMENDED this 11th day of August, 1982, in Tallahassee, Florida.

JAMES E. BRADWELL, 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 11th day of August, 1982.

ENDNOTE

1/ Petitioner's counsel has filed a proposed recommended order which has been considered by me in preparation of this Recommended Order. To the extent that the findings and conclusions contained in said memorandum are not incorporated in this Recommended Order, they were deemed either irrelevant, immaterial or unsupported by record evidence.

COPIES FURNISHED:

Michael Egan, Esquire ROBERTS, EGAN & ROUTA, P.A.

Post Office Box 1386 Tallahassee, Florida 32302

Leonard L. Clark

245 West Palmetto Avenue Deland, Florida 32720

James Linnan, Executive Director Florida Construction Industry

Licensing Board Post Office Box 2

Jacksonville, Florida 32202

Samuel R. Shorstein, Secretary Department of Professional

Regulation

130 North Monroe Street Tallahassee, Florida 32301

=================================================================

AGENCY FINAL ORDER

=================================================================

STATE OF FLORIDA

DEPARTMENT OF PROFESSIONAL REGULATION CONSTRUCTION INDUSTRY LICENSING BOARD

DEPARTMENT OF PROFESSIONAL REGULATION/CONSTRUCTION INDUSTRY LICENSING BOARD,

Petitioner,

vs. CASE NO. 0014932

DOAH CASE NO. 82-052

LEONARD L. CLARK, RC 0020933

Clark Roofing Company

246 West Palmetto Avenue DeLand, Florida 32720

Respondent.

/

FINAL ORDER

This matter came before the Construction Industry Licensing Board on January 14, 1983, in Key West, Florida. An administrative hearing held pursuant to Section 120.57(1), Florida Statutes, resulted in the issuance of a Recommended Order (attached hereto as Exhibit A) which was reviewed by the Board. The Petitioner filed exceptions to the Recommendation of the Hearing Officer. Following a review of the Recommended Order, Petitioner's Exception and the complete record of this proceeding.

It is ORDERED:

1. The Findings of Fact contained in the Recommended Order are approved and adopted and incorporated herein by reference.

   
   

2. The Conclusions of Law in the Recommended Order are approved and adopted and incorporated herein by reference.

   
   

3. The Recommendation in the Recommended Order is rejected as inappropriate under the circumstances. The Board adopts petitioner's exception to said recommendation. Therefore, following a review of the complete record, it is

ORDERED and ADJUDGED that the registered roofing contractor's license of the Respondent be and the same is hereby suspended for a period of two (2) years, beginning sixty (60) days from the date of this Final Order; provided, however, that said suspension shall be stayed if Respondent completes the Coogan project within sixty (60) days from the date of this Final Order.

DONE and ORDERED this 27th day of January, 1983.

FLORIDA CONSTRUCTION INDUSTRY LICENSING BOARD

John Henry Jones, Chairman

FILED

Department of Professional Regulation Florida Construction Industry Licensing Board

BOARD CLERK

CLERK

DATE

Docket for Case No: 82-000052

Orders for Case No: 82-000052