STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

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

)

Petitioner, )

)

vs. ) CASE NO. 84-4158

)

RICHARD S. McELROY )

)

Respondent. )

)

RECOMMENDED ORDER

This case came to be heard on April 10, 1985 in Miami, A Florida before Donald D. Conn, a duly designated Hearing Officer of the Division of Administrative Hearings. The parties were represented as follows:

APPEARANCES

For Petitioner: W. Douglas Beason, Esquire

Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32301

For Respondent: Bruce M. Cease, Esquire

2720 West Flagler Street Miami, Florida 33135

The Department of Professional Regulation, Petitioner, has filed an Administrative Complaint before the Construction Industry Licensing Board against Richard S. McElroy, Respondent, charging that he contracted to replace the roof of St. Mark's Lutheran Church in Coral Gables while his state contracting license was delinquent that he did not properly supervise this job, and that he failed to obtain a permit for this and other roofing jobs from the City of Coral Gables Building Department in violation of Sections 489.129(1)(d), (j), 489.115 and 489.119, F.S. (1981). At the hearing, Petitioner called three witnesses and introduced eleven exhibits; Respondent testified on his own behalf, called one other witness and introduced five exhibits.

Prior to commencing its case in chiefs Petitioner moved ore tenus to amend paragraph nine of the Administrative Complaint to add the charge that Respondent's actions with regard to the roofing job at St. Mark's Lutheran Church also constituted fraud, deceit, gross negligence, incompetence or misconduct in violation of Section 489.129(1)(m), F.S. (1981). In support of this motion Petitioner pointed out that the same factual matters which gave rise to the original charges also give arise to this additional charge, and that therefore Respondent has been on notice of the factual matters which form the basis of the Administrative Complaint since it was issued on October 9, 1984. A ruling on this motion was reserved at the hearing.

Based upon a review of the record in this case and after considering petitioner's motion, it is the ruling of the undersigned Hearing Officer that said motion to Amend the Administrative Complaint is here DENIED. To require Respondent to defend against this additional charge without notice or any opportunity to prepare a defenses even though based on factual allegations of which he did have notice; would be fundamentally unfair and a denial of due process. The nature of Respondent's defense is reasonably influenced by the nature of the charges brought against him. Petitioner had six months to amend its original Administrative Complaint but waited until the day of the final hearing to inform Respondent for the first time that he would also be charged with frauds deceit, gross negligence, incompetence or misconduct. This does not comply with the notice requirements of Section 120.57(1)(b), F.S. (1984 Supp.), or Rule 28-6.09(2)(a), F.A.C.

FINDINGS OF FACT

1. At all times material hereto Respondent was a registered roofing contractor with license number RC-0021643 and was acting as the qualifying agent for Poe Roof Company, Inc.

   
   

2. The City of Coral Gables has adopted the South Florida Building Code which requires that a contractor obtain a building permit prior to commencing roof construction or repair. However, no permits is required when such work does not exceed $300 in value.

   
   

3. If a roofing contractor fails to apply for a building permit the City is unable to conduct required inspections and is unaware of ongoing construction unless it is discovered by the City's code enforcement section. A Notice of Violation is issued when unpermitted construction activity is discovered, and the contractor is asked to "dry the roof in" to avoid the possibility of damage due to bad weather. All work is then stopped and the contractor must apply for a permit.

   
   

4. On July 28, 1983 Poe Roof Company, Inc., submitted a proposal to reroof St. Mark's Lutheran Church which was accepted in March 1984 and work was begun. Construction was completed in June, 1984. Respondent did not apply for a permit for this job prior to the work commencing, and therefore required inspections were not made by the City. Respondent subsequently did apply for a permit on June 4, 1984. When a complaint from the church was received by the City about the work being performed, the City required Respondent to cut a "roof plug" so that it could be determined if the roof was being properly installed. No defects in the roof installation were discovered. The Church's representative had complained that Respondent did not properly supervise the installation and that the wrong roof tiles were used. The evidence presented does not establish that the wrong tiles were used, but it is evident that Respondent visited the job site infrequently, if at all. An investigator for the Department of Professional Regulation interviewed Respondent on July 5, 1984 and testified that Respondent admitted that he had never visited the job but simply supervised the reroofing from his office.

   
   

5. The City of Coral Gables issued Notices of Violation against Poe Roof Company, Inc. on May 2, May 21 and July 11, 1984 for performing other roof work and repairs without the required permit. In these instances the value of each job exceeded $300, Respondent had not applied for a permit prior to the issuance

   of the Notice of Violation, and he was therefore assessed a double fee when he did submit applications on June 4, 1984 for the jobs associated with the Notices issued on May 2 and 21. He was also assessed a $100 fine by the City as a result of the Notice of Violation issued on July 11, 1984 for which he subsequently applied for a permit on September 26, 1984.

   
   

6. In November, 1983 Respondent submitted a change of status application to the Construction Industry Licensing Board to change his license from inactive to active. Although he was designated as the applicants the license number for Roger Miller, owner of Poe Roof Company was shown on the application as well as on the check that accompanied the application. As a result of this error, Respondent's license was not changed to active status until July 9, 1984 when he was issued a 60 day temporary license to serve as qualifier for Poe Roof Company. Thus, when the work at St. Mark's Lutheran Church was taking place and two Notices of Violation were being issued on May 2 and 21, Respondent did not have an active license. His license was inactive when he subsequently applied for permits for these three jobs on June 4, 1984. Respondent knew his license was inactive since in defense he contends the City would not have issued permits to him if he had timely applied for them because he did not have an active license.

   
   

7. The parties were given an opportunity to submit posthearing proposed findings of fact pursuant to Section 120.57(1)(b)4., F.S. A ruling on each proposed finding of fact has been made either directly or indirectly in this Recommended Order, except where such proposed findings of fact have been rejected as subordinate, cumulative immaterial or unnecessary.

   
   

   CONCLUSIONS OF LAW

   
   

8. The Division of Administrative has jurisdiction over the parties and subject matter of this cause. Section 120.57(1), F.S. The Construction Industry Licensing Board has the authority discipline licensees for violations as set forth in Chapter 489 pursuant to Section 489.129, F.S.

   
   

9. Sections 489.129(1)(d) and (j), F.S. (1981), authorize disciplinary action to be taken for:

   
   

   (d) Willful or deliberate disregard and violation of the applicable building codes or laws of the state or of any municipalities or counties thereof.

   * * *

   (j) Failure in any material respect to comply with the provisions of this act.

   
   

10. Section 301.1 of the South Florida Building Code requires permits to be issued by the local building official for any roof construction or repair exceeding $300 in value. The facts establish that on four occasions Respondent failed to obtain a required permit for roof construction or repair between March and July 1984. Respondent does not deny this, and his actions appear willful and deliberate. He knew he did not have an active license and yet proceeded to hold himself out as qualifying agent. Respondent offers as a defense the fact that the City would not have issued a permit to him since his license was inactive at this time, and he asserts that he was not a fault for the delay in activating his license. However, the evidence establishes that Respondent failed to correctly fill out the change of status application in November 1983 and included the wrong license number on the application and check. Clearly

    Respondent was at fault for the delay in reactivating his license. The burden is on the applicant when renewing or seeking a change in status. Section 489.115(3), (4), F.S.

    
    

11. Since his license was inactive during the times in question; Respondent violated Section 489.119, F.S., by acting as qualifying agent for Poe Roof Co., Inc. Two of the primary functions of a qualifying agent under Section 489.119, F.S., are obtaining required construction permits and supervising construction work and repairs. After Notices of Violation were issued against Poe Roof Company on May 2 and 21, Respondent applied for permits on June 4, 1984, knowing that his license was still inactive. He also applied for a permit for the job at St. Mark's Lutheran Church on June 4, almost three months after work began and one month before his license was activated. These actions were in violation of Section 489.119(2),(4), F.S. The evidence also establishes that Respondent, acting as qualifying agent for the job at St. Mark's Lutheran Church did not properly or adequately supervise this work as required by Section 489.119(2). Thus, Respondent is subject to disciplinary action by the Construction Industry Licensing Board for his willful and deliberate disregard and violation on four occasions of the provisions of the local building code which require a permit before commencing roof construction or repair. He also acted improperly as qualifying agent on three occasions in applying for permits after-the-fact while his license was inactive. Finally, he failed to properly and adequately supervise the job at St. Mark's Lutheran Church.

RECOMMENDATION

Based upon the foregoing findings of fact and conclusions of law it is recommended that a Final Order issue imposing an administrative fine of $750 against Respondent.

DONE and ENTERED this 10th day of June, 1985 at Tallahassee, Florida.

DONALD D. CONN

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 10th day of June, 1985.

COPIES FURNISHED:

W. Douglas Beason, Esquire

Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32301

Bruce M. Cease, Esquire 2720 West Flagler Street Miami, Florida 33135

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

Jacksonville, Florida 32202

Fred Roche Secretary

Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32301

Salvatore A. Carpino Esquire Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32301

Docket for Case No: 84-004158

Orders for Case No: 84-004158