STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

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

)

Petitioner, )

)

vs. ) CASE NO. 86-4480

)

JOHN P. TERRANOVA, )

)

Respondent. )

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

)

Petitioner, )

)

vs. ) CASE NO. 87-1499

)

ROGER A. LOLLIS, )

)

Respondent. )

)

RECOMMENDED ORDER

The final hearing in these cases was held on November 6, 1987 in Clearwater, Florida before Donald D. Conn, Hearing Officer, Division of Administrative Hearings. The parties were represented as follows:

For Petitioner: W. Douglas Beason, Esquire

Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32399-0750

For Respondent: John P. Terranova, pro se

3 Birdie Lane

Palm Harbour, Florida 33528

Roger A. Lollis

912 Tuskawilla Street

Clearwater, Florida 33516 (No Appearance)

At the hearing, the Department of Professional Regulation, Construction Industry Licensing Board (Petitioner), called three witnesses and introduced 12 exhibits. Respondent John P. Terranova testified on his own behalf, but Respondent Roger A. Lollis did not appear and was not represented at the hearing. A transcript of the hearing was filed on November 16, 1987, and the parties were allowed to file proposed recommended orders within 10 days

thereafter. Petitioner did not timely file a proposed recommended order. Respondent Terranova did submit a letter with additional evidence on November 25, 1987, however this cannot be considered because the evidentiary hearing has been concluded, he did not provide a copy to counsel for Petitioner, and he has included no citations to the record in his one and a half page, one paragraph letter. Due to the form of his letter, it is impossible to make specific rulings relating thereto because specific proposed findings of fact cannot be identified.

FINDINGS OF FACT

1. Roger A. Lollis was licensed as a registered roofing contractor at all times material hereto, having been issued license number RC-0030088. His address of record on file with Petitioner has at all times been 912 Tuskawilla Street, Clearwater, Florida, and this is the address to which notice of the hearing was sent. The hearing notice was not returned to the Division of Administrative Hearings by the post office for any reason. Lollis has been the subject of two previous Final Orders imposing disciplinary actions by the Construction Industry Licensing Board.

   
   

2. John P. Terranova was first licensed as a registered specialty contractor in August, 1985, having been issued license number RX-0049212 as the qualifying agent for Stretch and Seal Roofing Systems, Inc. Terranova and his wife are the only shareholders of this corporation, and he is the Chairman of its Board of Directors, as well as its President.

   
   

3. On November 15, 1984, Mrs. Judith Fugitt executed a contract with Stretch and Seal Roofing Systems, Inc., through its authorized agent, Scott St. John, for work to be performed on her residence at 1636 Bravo Drive, Clearwater, Florida, in order to correct a problem she was having with leaks. The work to be performed was specified in the contract to include: clean and mildewcide roof surface; inspect for water damage beneath tiles that are cracked or broken; replace broken and cracked tiles as necessary; flow coat to seal chimney flashing against leaks; apply 15 year Stretch and Seal coating in color to be specified by home owner; and color to be applied approximately 2 weeks after Stretch and Seal is applied. The contract further stated that the expense of any labor or materials for work not specified in the contract, such as to replace rotten wood, would be the responsibility of the homeowner.

   
   

4. The Fugitt contract provided a 15 year warranty and guarantee and stated, "All material is guaranteed to be as specified. All work to be completed in a workmanlike manner according to standard practices."

   
   

5. The contract price for the work to be done on the Fugitt's house was

   $2500, which was to be paid $500 at commencement of the job, $1500 upon completion of the application of Stretch and Seal, and the balance upon completion of painting of the roof tiles.

   
   

6. Although Terranova denies meeting with the Fugitts at the time this contract was executed, Mr. Elmer Fugitt testified that Terranova was present and gave his personal guarantee that the work would be done as specified in the contract and would correct the leak problem. Terranova also represented to Elmer Fugitt that he had 30 years experience in the roofing business. It is specifically found, based upon the demeanor of the witnesses, that the testimony of Elmer Fugitt concerning Terranova's personal involvement in this transaction on or about November 15, 1984, is credible, and Terranova's denial thereof is not.

7. Shortly after November 15, 1984, work commenced on the Fugitt roof, and some rotten wood was discovered which needed to be replaced. Tim Egner, another authorized representative of Stretch and Seal Roofing Systems, Inc., then prepared another proposal for repair and replacement of the rotten wood, which Judith Fugitt also accepted. The contract price for this work was $482.50.

   
   

8. Both St. John and Egner worked full-time for Terranova's company, with his knowledge and under his control. Terranova referred to Egner as his "operational manager" who handled customer complaints.

   
   

9. The Fugitts paid Terranova, through Stretch and Seal Roofing Systems, Inc., a total of $2981.00 between November 27 and December 23, 1984, for work performed on their roof. This was the full amount due under the November 15, 1984 contract and also the subsequent contract for repair and replacement of rotten wood. In late December, 1984, all tiles were in place, the Stretch and Seal coating had been applied, but the tiles had not been painted.

   
   

10. In January, 1985, the Fugitt roof continued to leak and Elmer Fugitt therefore contacted Terranova's company. After repeated contacts, Terranova arranged for Roger Lollis to inspect the roof. On March 12, 1985, Lollis obtained a permit from the Pinellas County Department of Building Inspection for roof repair on the Fugitt residence. Lollis never discussed what he was doing with the Fugitts, but was simply assigned to the job by Terranova. Mr. Fugitt saw Lollis on his roof one time. After tearing up a section of tiles and leaving a portion of the Fugitt roof exposed, Lollis walked off the job and never returned.

    
    

11. Thereafter, Elmer Fugitt reset the tiles himself after repeated efforts by his attorney to contact Terranova had failed. The Fugitt roof has never been painted although they contracted and paid for this to be done by Terranova's company.

    
    

12. At the hearing, Terranova denied his company either contracted for, or performed, roofing work. It was his testimony that he was only obligated to do painting, and it was Lollis' and the Fugitts' responsibility to do the roofing work. Terranova's testimony is not credible because it is contrary to the terms of the contracts the Fugitts executed with his company, and is outweighed by the convincing testimony of Elmer Fugitt.

    
    

13. Terranova contracted for and did perform, through his company, roofing work on the Fugitt residence at a time before he was licensed as a roofing contractor.

    
    

14. The roofing work performed by Terranova for the Fugitts would be found to be incompetent and would constitute misconduct in the practice of contracting if he had been licensed at the time. He did not repair the leaks, he accepted full payment for a job that was not completed, he avoided or failed to return repeated calls from and on behalf of the Fugitts, and he allowed their roof to be left exposed to the elements after Lollis walked off the job. Terranova failed to honor the guarantee set forth in his contract with the Fugitts.

    
    

15. Lollis performed work on the Fugitt roof at the request and direction of Terranova in March, 1985, at a time Terranova was not a licensed roofing contractor. He did obtain a local permit, but did not call for any inspection. In fact, he walked off the job and left the Fugitt roof exposed. Lollis'

    actions constitute incompetence and misconduct in the practice of contracting, but there is no evidence he knew that Terranova was not licensed at the time. Lollis was not the qualifying agent for Stretch and Seal.

    
    

16. Pinellas County building code ordinances require a permit for any roof repair that exceeds $50 and for any general construction that exceeds $500. Terranova failed to obtain any required permits for the Fugitt job. A final inspection on any roofing job for which a permit has been issued is required, but Lollis never called for one after he obtained the permit in March, 1985.

    
    

    CONCLUSIONS OF LAW

    
    

17. The Division of Administrative Hearings has jurisdiction over the parties and subject matter in this case. Section 120.57(1), Florida Statutes. As the agency seeking to take disciplinary action against Respondents' licenses, Petitioner has the burden to prove the matters alleged in the Administrative Complaint by clear and convincing evidence. Ferris v. Turlington, 510 So.2d 292 (Fla. 1987).

    
    

18. Respondents have been charged with violating Section 489.129(1)(m), Florida Statutes, which provides that disciplinary action may be taken, "Upon proof that the licensee is guilty of fraud or deceit or of gross negligence, incompetence, or misconduct in the practice of contracting." (Emphasis supplied). Since Respondent Terranova was not a "licensee" at times material to the Fugitt roofing contract and work, and since this is the only violation charged against him in the Administrative Complaint, the Petitioner has not met its burden of proof for disciplinary action under this provision. It has not been shown that Petitioner has jurisdiction over Terranova concerning matters which occurred prior to his licensure.

    
    

19. The Petitioner argued at hearing, when the Hearing Officer raised the issue of its jurisdiction over a person who is not licensed, that Section 489.129(1)(m), Florida Statutes, authorizes disciplinary action against anyone engaged in contracting which is grossly negligent, incompetent or which constitutes misconduct when that person subsequently becomes a "licensee." Nothing within the terms of Section 489.129(1)(m) supports such interpretation and no memorandum in support of Petitioner's position has been filed. As such, the plain meaning of the statute must be given effect since there is no ambiguity in the terms of the statute, and since there has been no showing that any special agency expertise is involved or necessary for its interpretation. Holly v. Auld, 450 So.2d 217 (Fla. 1984); Citizens of State v. Public Service Commission, 425 So.2d 534 (Fla. 1982); Carson v. Miller, 370 So.2d 10 (Fla. 1979).

    
    

20. Respondent Lollis was a licensee at the time of the Fugitt roofing job and it was established that he began to perform roofing work for the Fugitts in March, 1985, by obtaining a local permit and tearing up a section of tiles. He thereafter walked off the job, leaving a portion of the Fugitt roof exposed. Lollis never called for a final inspection, as required by local ordinance.

    The actions of Lollis were clearly and convincingly shown to constitute incompetence and misconduct in the practice of contracting, and therefore he is in violation of Section 489.129(1)(m), Florida Statutes.

    
    

21. Terranova was not charged with any other violations of Chapter 489. However, Lollis was also charged with violating Section 489.129(1)(d) and (j) in that he violated the local building code by failing to call for a final inspection, and that he failed to qualify Stretch and Seal Roofing, Inc., even

though he operated through, and was assigned to the Fugitt job by, the corporation's President and owner, Terranova, in March, 1985. The evidence presented establishes that Respondent Lollis did violate these additional provisions of Chapter 489. However, the evidence does not show, clearly and convincingly, that Lollis knew Terranova was unlicensed at the time, or that he knowingly conspired or combined with Terranova with the intent to evade the provisions of Chapter 489. As such, it has not been shown that he violated Sections 489.129(1)(e) or (f), Florida Statutes.

RECOMMENDATION

Based upon the foregoing, it is recommended that the Construction Industry Licensing Board enter a Final Order:

1. Dismissing the Administrative Complaint filed against John P. Terranova since it has not been shown that the Board has jurisdiction over him under Section 489.129(1)(m), Florida Statutes, for matters occurring prior to his having been licensed.

   
   

2. Finding that Roger A. Lollis has violated Sections 489.129(1)(d),(j) and (m), Florida Statutes, and therefore imposing a six month suspension and

$1000 administrative fine against him based not only on the facts found herein concerning his actions regarding the Fugitt roof, but also the fact that this is the third disciplinary action taken against his license by the Construction Industry Licensing Board.

DONE AND ENTERED this 11th day of December, 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 11th day of December, 1987.

COPIES FURNISHED:

W. Douglas Beason, Esquire Department of Professional

Regulation

130 North Monroe Street Tallahassee, Florida 32399-0750

John P. Terranova

3 Birdie Lane

Palm Harbour, Florida 33528

Roger A. Lollis

912 Tuskawilla Street

Clearwater, Florida 33516

Fred Seely Executive Director

Construction Industry Licensing Post Office Box 2 Jacksonville, Florida 32201

William O'Neil General Counsel

Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32399-0750

Docket for Case No: 86-004480

Orders for Case No: 86-004480