STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

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

)

Petitioner, )

)

vs. ) CASE NO. 86-3698

)

CLIFFORD B. SMITH, )

)

Respondent. )

)

RECOMMENDED ORDER

A final hearing was held in this case in Bradenton, Florida, on March 6, 1987 before Donald D. Conn, a duly designated Hearing Officer of the Division of Administrative Hearings. Clifford B. Smith, Respondent, requested a hearing concerning the Administrative Complaint filed by the Department of Professional Regulation before the Construction Industry Licensing Board, Petitioner, that charges him with violations of Chapter 489, Florida Statutes, in connection with the reroofing of the Bausch and Lomb plant in Manatee County during 1985. The parties were represented as follows:

Petitioner: W. Douglas Beason, Esquire

130 North Monroe Street Tallahassee, Florida 32399-0750

Respondent: Michael Schlesinger, Esquire

655 Ulmerton Road, Building 11-A Largo, Florida 33541

At the hearing Petitioner called three witnesses and introduced fifteen exhibits, some of which were composite; Respondent testified on his own behalf and introduced one exhibit. A transcript of the hearing was filed on April 8, 1987, and the parties were allowed to file proposed findings of fact, conclusions of law and memoranda within ten days. The Appendix to this Recommended Order contains rulings on each timely filed proposed finding of fact.

FINDINGS OF FACT

1. Respondent has been a registered roofing contractor at all times material hereto. His license number is RC-0035594.

   
   

2. On or about April 26, 1985 Respondent, doing business as Pinellas Roofing Service, contracted with Bausch and Lomb to reroof their plant in Manatee County, at a contract price of $31,150. Respondent admits that at no time material hereto was he licensed to engage in contracting in Manatee County.

3. Pinellas Roofing thereafter began, and partially performed, this job for which it was paid a total of $28,035.

   
   

4. Petitioner alleges, and Respondent denies, that Respondent diverted funds received from this job for other purposes, and was thereafter unable to fulfill the terms of the contract with Bausch and Lomb. Petitioner did not present competent substantial evidence in support of this charge.

   
   

5. Respondent never completed this job and took no steps to inform Bausch and Lomb that he would not complete the contract or make other arrangements for its completion. He left several thousand dollars worth of material on the roof, exposed, when he walked off this job, and this resulted in these materials being substantially destroyed. During the job, he did not take precautions to assure that the roof did not leak during heavy rainstorms. In fact, on at least three occasions, leaks caused damage to the interior of the plant and Respondent could not be reached. Therefore, Bausch and Lomb had to have another roofing contractor make emergency repairs on June 25, July 15 and September 3, 1985, at a total additional cost of $4,150.

   
   

6. Since Respondent did not complete the contract, and left the roof unfinished, Bausch and Lomb contracted on September 17, 1985 with Bernard J. Lozon, Inc., to complete the job, and make certain additional repairs, at a cost of $24,000. In the opinion of Bernard J. Lozon, who was accepted as an expert in roofing contracting, the actual work that was done by Pinellas Roofing was satisfactory. However, Respondent's actions in walking off the job and leaving the roof unattended without completing the job is an unacceptable practice in roofing contracting, and constitutes incompetence and misconduct.

   
   

7. Respondent failed to properly supervise this job. He relied upon his son to hire the necessary crews, pay them, handle financial aspects of the job, and assure its completion. His testimony indicates he fails to understand his own responsibility for supervising and completing the work for which he contracted, and which was performed under his license.

   
   

8. At no time material hereto did Respondent qualify Pinellas Roofing Service with Petitioner.

   
   

9. Respondent failed to apply for and obtain a Manatee County building permit for the roofing job in question, and also failed to request the county building department to perform inspections of the work performed.

   
   

10. The Board of County Commissioners of Manatee County has adopted and follows the 1979 edition of the Standard for Installation of Roof Coverings, Southern Building Code, as amended in 1981. This Code requires all contractors performing work in Manatee County to be registered in Manatee County, and to obtain permits for all roof replacements and repairs in excess of $200, as well as obtain inspections of all such work to insure compliance with the Code. Respondent failed to comply with these requirements of the local building code.

    
    

11. When Respondent submitted his proposal on April 16, 1985 for the Bausch and Lomb job, he specifically acknowledged, in writing, that "all work (is) to be done according to owner specifications sheet." (Emphasis supplied). At hearing, Respondent contended that when he submitted his proposal he never saw the project specification sheet which was thereafter attached to his contract with Bausch and Lomb and made a part thereof. Rather, he testified that his proposal referred to certain specifications that appeared on project drawings which he reviewed prior to submitting his proposal. After considering

    the demeanor of the witnesses and all of the evidence presented, and particularly the fact that Respondent referred to the "specifications sheet" and not "drawings" in his proposal, it is specifically found that Respondent had knowledge of, and did in fact submit his proposal based upon the "specifications sheet" which ultimately became a part of his contract. As such, he was bound thereby in the performance of work under this contract.

    
    

12. In pertinent part, the "specifications sheet" requires that the contractor obtain all necessary permits from Manatee County, that notice be given to the owner in advance of work that will produce excessive amounts of dust or tar fumes so proper precautions could be taken, that roofing materials be stored in a manner that protects them from damage or adverse weather conditions during construction, and that the contractor provide a two year written guarantee at the conclusion of the job. Respondent failed to comply with these requirements of the specifications.

    
    

    CONCLUSIONS OF LAW

    
    

13. The Division of Administrative Hearings has jurisdiction over the parties and subject matter in this cause. Section 120.57(1), Florida Statutes.

    
    

14. In pertinent part, Section 489.129(1), Florida Statutes, provides that Respondent may take license disciplinary action against a licensee who is guilty of:

    
    

    (d) Willful or deliberate disregard and violation of the applicable building codes

    or laws of the state or of any municipalities or counties thereof.

    1. Acting in the capacity of a contractor under any certificate or registration issued hereunder except in the name of the certificateholder or registrant as set forth on the issued certificate or registration, or in accordance with the personnel of the

       certificateholder or registrant as set forth in the application for the certificate or registration, or as later changed as provided in this act.

    2. Diversion of funds or property received for prosecution or completion of a specified construction project or operation when as a result of the diversion the contractor is or will be unable to fulfill the terms of his obligation or contract.

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

    (m) Upon proof that the licensee is guilty of fraud or deceit or of gross negligence, incompetency, or misconduct in the practice of contracting.

    
    

    Additionally, Section 489.117(2) clearly limits a registered contractor to contracting only in counties where he has complied with local licensing requirements, and Section 489.119 requires all businesses, corporations and other legal entities engaging in contracting to be "qualified" in this State through a "qualifying agent" who is certified or registered with Petitioner.

15. The evidence establishes that Respondent disregarded and violated the local building code in Manatee County by failing to register, obtain a permit or call for inspections on the Bausch and Lomb job. Respondent also contracted for this job under the name of Pinellas Roofing Service, a business entity for which he had not registered as "qualifying agent." By engaging in contracting in Manatee County, Respondent exceeded the authorization of his registration since he was not registered in Manatee County. Additionally, the facts established at hearing show that Respondent's performance in the administration and execution of this contract was incompetent and constitutes misconduct in the practice of contracting due to his failing to follow specifications, leaving the job incomplete and failing to inform Bausch and Lomb or make other arrangements for completion of the job, and abandoning roof repair materials which were subsequently damaged by the weather.

    
    

16. The facts which were proven at hearing constitute violations of Sections 489.117(2), 489.119, and 489.129(1)(d),(g),(j) and (m), Florida Statutes. As such, Respondent is subject to disciplinary action by Petitioner.

RECOMMENDATION

Based upon the foregoing, it is recommended that Petitioner enter a Final Order suspending Respondent's registration for a period of ninety (90) days and imposing an administrative fine in the amount of $1,500.

DONE AND ENTERED this 22nd day of April, 1987 in Tallahassee, Florida.

DONALD D. CONN

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 22nd day of April, 1987.

APPENDIX TO RECOMMENDED ORDER, CASE NO. 86-3698

Rulings on Petitioner's Proposed Findings of Fact:

1. Adopted in Finding of Fact 1.

2. Adopted in Finding of Fact 8. 3,4 Adopted in Finding of Fact 2.

5,6 Adopted in Finding of Fact 3, but otherwise rejected as irrelevant and unnecessary.

7,8 Adopted in Finding of Fact 9.

1. Adopted in Finding of Fact 6.

2. Adopted in Findings of Fact 5, 6.

Rulings on Respondent's Proposed Findings of Fact:

1. Adopted in part in Findings of Fact 3, 5.

2. Rejected as not based upon competent substantial evidence.

3. Adopted in part in Finding of Fact 3.

4. Adopted in part in Findings of Fact 2, 3. 5-7 Addressed in Findings of Fact 2, 3 and 5. 8,9 Rejected as irrelevant and unnecessary.

10. Adopted in part in Finding of Fact 5. 11,12 Adopted in part in Finding of Fact 6.

1. Rejected as not based upon competent substantial evidence.

2. Adopted in Findings of Fact 5, 6.

3. Adopted in Finding of Fact 6.

COPIES FURNISHED:

W. Douglas Beason, Esquire Department of Professional Regulation

130 North Monroe Street Tallahassee, Fl 32399-0750

Michael Schlesinger, Esquire 655 Ulmerton Road

Building 11-A Large, Fl 33541

Fred Seely

Construction Industry Licensing Board

Post Office Box 2 Jacksonville, Fl 32201

Van Poole Secretary

Department of Professional Regulation

130 North Monroe Street Tallahassee, Fl 32399-0750

Joseph A. Sole, Esquire General Counsel

Department of Professional Regulation

130 North Monroe Street Tallahassee, Fl 32399-0750

Docket for Case No: 86-003698

Orders for Case No: 86-003698