STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

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

)

Petitioner, )

)

vs. ) CASE NO. 83-3917

)

JOHN G. GORDON, )

)

Respondent. )

)

RECOMMENDED ORDER

Consistent with the Notice of Hearing forwarded to the parties on December 22, 1983, a hearing was held in this case before Arnold H. Pollock, a Hearing Officer with the Division of Administrative Hearings, in Fort Walton Beach, Florida, on April 16, 1984. The issue for consideration at the hearing was whether Respondent's license as a registered roofing contractor should be disciplined as a result of his misconduct alleged in the Administrative Complaint.

APPEARANCES

For Petitioner: Douglas A. Shropshire, Esquire

Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32301

For Respondent: John G. Gordon, pro se

Post Office Box 498 Destin, Florida 32541

BACKGROUND INFORMATION

On October 12, 1983, Fred Roche, Secretary of the Department of Professional Regulation, signed an Administrative Complaint in this case which charged Respondent with failing to hold an occupational license issued by the city in which he was working and failing to obtain a permit before commencing work on a project within Fort Walton Beach, Florida, in violation of Section 489.129(1)(d), Florida Statutes (1981); and violating Section 489.129(1)(c), Florida Statutes (1981), when he failed to honor a warranty he issued, making misleading representations in the practice of contracting, as set forth in Section 455.227(1)(a), Florida Statutes (1981).

Thereafter, on November 8, 1983, Respondent signed an Election of Rights form in which he disputed the allegations of fact in the Administrative Complaint and requested a formal hearing. At the hearing, Petitioner produced the testimony of Respondent and Allene S. Gilbert, and introduced Petitioner's

Exhibits 1-7. Respondent testified in his own behalf, but presented no exhibits.

FINDINGS OF FACT

1. At all times pertinent to the allegations contained in the Administrative Complaint, Respondent John G. Gordon, Jr. was licensed by the State of Florida as a registered roofing contractor by License No. RC-0032501, first issued to Respondent, qualifying as an individual in 1978 and continually renewed as such since then.

   
   

2. On June 4, 1981, Respondent was called by Ms. Allene S. Gilbert to give her an estimate on re-roofing the two flat portions of her house roof. When he went to the house, he went up on the roof by himself to look and, when he came down, he gave her an estimate of $1,400 to re-roof the two flat sections on either side of the gabled center section. He did not then, or any time thereafter, prior to doing the work, indicate there was anything wrong with the siding which connected down from the gabled roof to the flat roof.

   
   

3. After making his inspection and giving the estimate which Ms. Gilbert accepted, he entered into an oral contract with her which, when reduced to unsigned memo form, provided that he would tear off the old roof down to the deck and replace it with a 15-year built up roof consisting of a total of five layers. He also agreed to replace the rock and all metal around the edges of the house. He specifically stated that the work he did, both materials and his workmanship, was guaranteed for 15 years against leaks.

   
   

4. Respondent indicates he found that the metal flashing along the side of the house where the flat roof joins the siding was rusted out and he replaced it. He contends that this rust was due to the deteriorated (rotten) condition of the lap siding above the flat roof which allowed water to get in behind the flashing. In any case, during the first rain after the completion of the work, the preexisting leaks in the bedroom which prompted the roof replacement were worse and additional leaks developed inside the house. The leakage was so severe, the bathroom ceiling caved in.

   
   

5. Ms. Gilbert called Respondent many times to get him to come out and repair the leaks, but never was able to speak with him personally. Each time she called, she would leave a message with whomever answered the phone, requesting that he come out or call, and was assured that these messages were getting relayed to Respondent, but he never returned any call and, to the best of her knowledge, he never came to her house again. However, she works during the day and would not know if he was there or not. No neighbor told her they saw someone there, and she received no note or other indication that the Respondent had come.

   
   

6. Respondent admits that having once responded to her earlier call and seeing that the leaking was caused by the condition of the siding for which he was not responsible and about which he had previously done nothing, he was satisfied that his work was done properly and he did not call back or ever respond to any of Ms. Gilbert's other calls. He contends that the problem was not caused by him or a part of the work he had done. Therefore, he was not responsible for it.

   
   

7. Ms. Gilbert contends, after trying to get Respondent to honor his guarantee for six months, she gave up and had someone else to do the job. The

   leaks are now repaired and the siding which Respondent stated was rotten, though painted once since then, has not been replaced or repaired.

   
   

8. Respondent having entered into the contract with Ms. Gilbert, began and completed the entire project without either (1) having an occupational license as required by Section 14-39, Ordinance of the City of Fort Walton Beach; or,

   (2) securing a permit for the repair as required by Section 106.1, Standard Building Code, incorporated into the Ordinance of the City of Fort Walton Beach.

   
   

   CONCLUSIONS OF LAW

   
   

9. The Division of Administrative Hearings has jurisdiction over the parties and the subject matter of this proceeding.

   
   

10. In Count I, Respondent is alleged to have violated Section 489.129(1)(d), Florida Statutes (1981), by willfully or deliberately violating local building codes or laws when he accomplished the repair work on Ms. Gilbert's roof without having either a local occupational license or having first procured a permit from the City to do the work.

    
    

11. Section 489.129(1)(d) permits Petitioner to discipline the certification or registration of a contractor if it can be shown he committed a:

    
    

    Willful or deliberate disregard and violation of the applicable building codes or laws of

    the state or any municipalities or counties thereof.

    
    

12. The evidence shows that Section 14-39, Ordinance of the City of Fort Walton Beach, and Section 106.1, Standard Building Code, adopted by the City, require the holding of an occupational license and the procuring of a permit before alteration or repair work is done. Respondent admits he did not have either at the time he did the work for Ms. Gilbert. That he may not have known of the need for them is immaterial. The violation alleged in Count I has been established. The violation alleged in Count I has been established.

    
    

13. In Count II, Respondent is alleged to have "made misleading, deceptive, untrue, or fraudulent representations in the practice of his profession," which is considered grounds for a board to discipline a licensee under the provisions of Section 455.227(1)(a), Florida Statutes (1981). If established, this violation constitutes a violation of Section 489.129(1)(c), Florida Statutes (1981), as well.

    
    

14. Here it has been alleged and shown that Respondent failed to honor the warranty he gave to Ms. Gilbert when he contracted with her to repair her roof. He represented his work was guaranteed for 15 years, and he also represented to her that he had repaired her roof. The work was done, and Respondent contends he would honor any defect in his workmanship or materials he supplied, but his failure to honor the warranty is based on his conclusion that the continuing and worsening leaks were not his fault or responsibility or covered by the warranty.

    
    

15. The evidence presented may well support a suit by Ms. Gilbert against Respondent for breach of warranty or a charge by the Board of gross negligence, incompetence, or misconduct in the practice of contracting, in violation of Section 489.129(1)(m), Florida Statutes (1981). However, absent a showing of some misrepresentation, deceptive, untrue, or fraudulent representation by Respondent which induced the contract or evidence of fraudulent statements regarding the work done, and none of this was shown here, it cannot be said that

Respondent violated that section of the statute with which he is charged. This is yet another case where Petitioner has improperly charged a violation based on evidence which might well constitute grounds for discipline if charged under a different subsection of this statute. Cf. Department of Professional Regulation, Construction Industry Licensing Board v. Hodges, DOAH Case No.

8301072.

RECOMMENDATION

Based on the foregoing, therefore, it is RECOMMENDED that Respondent pay an administrative fine of $250 and that he be placed on probation for six (6) months.

DONE AND ENTERED this 9th day of May 1984 in Tallahassee, Florida.

ARNOLD H. POLLOCK

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 9th day of May 1984.

COPIES FURNISHED:

Douglas A. Shropshire, Esquire Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32301

Mr. John G. Gordon Post Office Box 498 Destine, Florida 32541

James Linnan, Executive Director Construction Industry Licensing Board Post Office Box 2

Jacksonville, Florida 32202

Fred M. Roche, Secretary

Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32301

Docket for Case No: 83-003917

Orders for Case No: 83-003917