STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

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

)

Petitioner, )

)

vs. ) CASE NO. 87-2439

)

JIM SQUITIRO, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to Notice, an Administrative Hearing was held before William R. Cave, Hearing Officer with the Division of Administrative Hearings, on September 24, 1987, in Alachua, Florida. The issue for determination is whether the Respondent's registered roofing license should be revoked, suspended or otherwise disciplined under the facts and circumstances of this case.

APPEARANCES

For Petitioner: W. Douglas Beason, Esquire

Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32399-0750

For Respondent: Jim Squitiro, Pro Se

1492 Overcash Drive

Dunedin, Florida 32528 BACKGROUND

By an Administrative Complaint dated May 1, 1987, and filed with the Division of Administrative Hearings on June 3, 1987, Petitioner seeks to revoke, suspend or otherwise discipline the license of Jim Squitiro as a registered roofing contractor in the State of Florida. As grounds therefor, it is alleged that Respondent: (1) without first obtaining, or assuring that a permit had been obtained, began work on a job, failed to post a permit on the job site, and failed to obtain the required inspections on the job in violation of the local ordinance which is a violation of Section 489.129(1)(d), Florida Statutes; (2) failed to make reasonable response to service request under a guarantee set forth in the contract in violation of Section 489.129(1)(m), Florida Statutes and; (3) failed to competently supervise the work or the service on the job in violation of Section 489.105(4) and 489.119, Florida Statutes which is a violation of Section of 489.129(1)(j), Florida Statutes.

In support of the charges, Petitioner presented the testimony of Betty Dampier, Helen Scholtens, John Scholtens and Willard P. Yengling. Although the index of the transcript indicates only 6 exhibits for Petitioner, there were 7

and they were received into evidence. Respondent's Exhibit No. 1 was received into evidence but the Respondent did not present any oral testimony.

The parties did not expressly waive their right to submit posthearing Proposed Findings of Fact and Conclusions of Law but neither have submitted them.

FINDINGS OF FACT

Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant facts are found:

1. At all times material to this proceeding, Respondent was a registered roofing contractor in the State of Florida with license No. RR 0026422 and qualified Acoma Roofing Co. (Acoma) with the State of Florida, Department of Professional Regulation.

   
   

2. On September 6, 1985, Acoma Roofing Co. and John Scholtens entered into an agreement whereby Acoma was to remove the existing roof, replace any rotten sheathing, install white tile on the roof, flash two (2) chimneys, and perform other work incidental to replacing roof on the home of John and Helen Scholtens located in Alachua County, Florida and known as the Red Baron Farm, for the contract price of $23,000.00.

   
   

3. The contract as executed on September 6, 1985, and contained the standard guarantee for materials as specified and for work to be completed in a workmanlike manner according to standard practices. The guarantee also required that any alterations or deviations involving extra costs be executed only upon written orders.

   
   

4. There was no requirement in the contract for Acoma to replace or repair any beams.

   
   

5. The contract was silent as to who had the responsibility to obtain the permit for the job with the local building department, and both the Respondent and Scholtens assumed the other would obtain the permit. The permit was neither obtained nor posted on the job site.

   
   

6. Neither Respondent nor Scholtens obtained the required inspections of the repair work performed by Acoma.

   
   

7. Sometime between September 6, 1985 and November 15, 1985, Acoma began work on replacing the roof and completed the job sometime before November 30, 1985.

   
   

8. On November 15, 1985, Scholtens paid Respondent $10,000.00 for work completed by Acoma.

   
   

9. On November 30, 1985, Acoma presented Scholtens with an invoice for

   $14,110.00 which included the balance under the contract of $13,000.00 plus

   $1,110.00 for replacing sheathing and beams.

   
   

10. Scholtens refused to pay for the extras and deducted $520.29 from the

    $13,000.00 balance for alleged damage to the Scholten's septic tank and gave Respondent a check for $12,479.61 as payment in full. As a condition of

    Scholtens paying the balance, Respondent agreed to add the language "5 years unconditional guarantee" to the contract. This was added due to the insistence of Helen Scholtens, an attorney at law.

    
    

11. Sometime around the middle of June, 1986, Helen Scholtens called Respondent and complained that the roof was leaking around the chimneys and requested that Respondent fix the leak. By letter of June 20, 1986, Respondent advised her that unless he was paid the balance of $1,110.00 within five (5) days he would not fix the leak and would consider the 5 year unconditional guarantee as "null and void."

    
    

12. On July 3, 1986, Helen Scholtens advised Respondent by letter that unless he fixed the leak they would seek legal action against him.

    
    

13. Respondent did not fix the leak as requested, and on August 25, 1986, Scholtens obtained an estimate from Poole Roofing and Sheet Metal Co. (Poole) for repair of the leak. W. P. Yengling, an Estimator for Poole, checked the roof and gave an estimate of $1,510.00 to repair the leak and other incidentals. Scholtens contracted with Poole for the repair which was completed in early 1987. Earlier, on the original reroofing of Scholtens' home, Poole, based on an estimate prepared by Yengling, submitted a bid for the repair of the roof but was not the successful bidder; the award going to Respondent which is the subject matter of this proceeding.

    
    

14. There was insufficient evidence to show that a leak had caused damage to the ceiling of Scholtens' home or, assuming there was a leak, that the leak was the result of Acoma's failure to flash the chimneys as contracted or a result of Acoma's poor workmanship in flashing the chimneys.

    
    

15. On the date of the hearing Respondent had not responded to Scholtens request to repair the roof other than his response on June 20, 1986.

    
    

    CONCLUSIONS OF LAW

    
    

16. The Division of Administrative Hearings has jurisdiction over the parties to, and the subject matter of, this proceeding, pursuant to Section 120.57(1), Florida Statutes.

    
    

17. Section 489.129(1), Florida Statutes empowers the Florida Construction Industry Licensing Board (Board) to revoke, suspend or otherwise discipline the license of a registered roofing contractor found guilty of any one of the acts enumerated in Section 489.129(1)(am), Florida Statutes.

    
    

18. Section 489.129(1)(d)(j) and (m), Florida Statutes, provide as follows:

    
    

    (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.

    * * *

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

    
    

19. In disciplinary proceedings, the burden is upon the regulatory agency to establish facts upon which its allegations of misconduct are based. Balino

    v. Department of Health and Rehabilitative Services, 348 So.2d 349 (1 DCA Fla. 1977). Petitioner has sustained its burden to show that Respondent violated the local ordinance and thereby violated Section 489.129(1)(d) and (j), Florida Statutes but failed to sustain its burden to show that Respondent violated Section 489.129(1)(m), Florida Statutes.

    
    

20. Pursuant to Sections 489.105(4) and 489.119, Florida Statutes, Respondent, as qualifying agent for Acoma, had the authority and responsibility to act for, and to supervise the repair of, Scholtens' roof. And, in that capacity, was responsible for assuring that a permit for the job had been obtained and posted on the job site, and that the necessary inspections had been made by the proper building authority as required by the Standard Building Code adopted by the City of Alachua in Ordinance 0-83-1.

RECOMMENDATION

Having considered the foregoing Findings of Fact, Conclusions of Law, the evidence of record and the candor and demeanor of the witnesses, it is, therefore,

RECOMMENDED that the Board enter a Final Order suspending the Respondent's registered roofing contractor's license for a period of three (3) months, staying the suspension and placing Respondent on probation for a period of six

(6) months under conditions deemed appropriate by the Board. It is further RECOMMENDED that the portion of the Administrative Complaint alleging a violation of Section 489.129(1)(m), Florida Statutes be DISMISSED.

Respectfully submitted and entered this 24th day of December, 1987, in Tallahassee, Leon County, Florida.

WILLIAM R. CAVE

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 24th day of December, 1987.

COPIES FURNISHED:

W. Douglas Beason, Esquire

Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32399-0750

Jim Squitiro, Pro Se 1492 Overcash Drive

Dunedin, Florida 32528

Fred Seely, Executive Director Construction Industry Licensing Board Department of Professional Regulation Post Office Box 2

Jacksonville, Florida 32201

Docket for Case No: 87-002439

Orders for Case No: 87-002439