STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

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

)

Petitioner, )

)

vs. ) CASE NO. 87-2672

)

DOROTHY HOMESLEY, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was conducted in this case on September 24, 1987, in St. Augustine, Florida, before Michael M. Parrish, a duly designated Hearing Officer of the Division of Administrative Hearings.

Appearances for the parties at the hearing were as follows:

For Petitioner: Ms. Dorothy Homesley, pro se

35 Norde Drive, West, Number 18 Jacksonville, Florida 32224

For Respondent: G. Vincent Soto, Esquire

Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32399-0750

ISSUES AND INTRODUCTION

This is a license discipline case in which the Petitioner seeks to take disciplinary action against the Respondent on the basis of alleged violations of Chapter 489, Florida Statutes, set forth in an Administrative Complaint signed May 19, 1987.

At the hearing the Respondent stipulated to several of the allegations in the Administrative Complaint. Thereafter, the Petitioner presented the testimony of four witnesses and offered five exhibits, all of which were received in evidence. The Respondent did not testify on her own behalf, but did present the testimony of one witness. The Respondent did not offer any exhibits in evidence. At the conclusion of the hearing the parties were given 20 days from the date of the filing of the transcript within which to file their proposed recommended orders. The transcript was filed on October 15, 1987, and the Petitioner thereafter filed a timely proposed recommended order containing proposed findings of fact and conclusions of law. As of the date of this recommended order, the Respondent has not filed a proposed recommended order nor any other document containing proposed findings of fact. Specific rulings on all proposed findings of fact submitted by the Petitioner are contained in the Appendix which is attached to and incorporated into this recommended order.

FINDINGS OF FACT

Based on the stipulations of the parties, on the exhibits received in evidence, and on the sworn testimony of the witnesses at the hearing I make the following findings of fact.

Stipulated findings

1. At all times relevant hereto, the Respondent was licensed by the Construction Industry Licensing Board as a registered roofing contractor. At all times relevant hereto, the Respondent held license number RC 0060128 issued by said Board. The Respondent's address of record is in Jacksonville, Florida.

   
   

2. The Respondent did, through the contracting business Respondent was then associated with and responsible for in her capacity as a licensed contractor, contract with Darryl Debow, hereinafter referred to as the "Customer," to perform certain contracting work for the Customer.

   
   

3. The details of the contracted work were generally as follows. The contract was entered into on or about April of 1986. The contract price was

   $5,900.00. The job was located in St. Augustine, Florida. The job generally consisted of repairing the roof of the Customer's commercial buildings. After entering into the contract, the Respondent's contracting business began work on the job.

   
   

   The rest of the facts

   
   

4. The Respondent's business began work on the job described above without obtaining a permit for said work from the local building department and without assuring that someone else had obtained a permit for the work. There was no permit posted on the job site when Respondent's business began the job.

   
   

5. The Respondent did not ask the local building department to inspect the work done on the subject contract.

   
   

6. The Respondent was not licensed as a roofing contractor in St. Johns County, Florida, at any time from the beginning of 1985 until the day of the hearing.

   
   

7. At all times material to this case, the applicable building code required permits for roofing work.

   
   

   CONCLUSIONS OF LAW

   
   

   Based on the foregoing findings of fact and on the applicable legal principles, I make the following conclusions of law:

   
   

8. The Division of Administrative Hearings has jurisdiction over the parties to and the subject matter of this case. Sec. 120.57(1), Fla. Stat.

   
   

9. The term "roofing contractor" is defined as follows at Section 489.105(3)(e), Florida Statutes:

   
   

   (e) "Roofing contractor" means a contractor whose services are unlimited in the roofing trade and who has the experience, knowledge, and skill to install, maintain, repair,

   alter, extend, or design, when not prohibited by law, and use materials and items used in the installation, maintenance, extension, and alteration of all kinds of roofing and water- proofing.

   
   

10. The term "qualifying agent" is defined as follows at Section 489.105(4), Florida Statutes:

    
    

    (4) "Qualifying agent" means a person who possesses the requisite skill, knowledge, and experience, and has the responsibility, to supervise, direct, manage, and control the contracting activities of the business entity with which he is connected; who has the responsibility to supervise, direct, manage, and control construction activities on a job for which he has obtained the building permit; and whose technical and personal qualifications have been determined by investigation and examination as provided in this act, as attested by the department.

    
    

11. Section 489.117(1) and (2), Florida Statutes, contains the following relevant provisions regarding registration as a contractor:

    
    

    (1)... To be initially registered, the applicant shall submit the required fee and file evidence, in a form provided by the department, of holding a current local occupational license issued by any municipality, county, or development district for the type of work for which registration is desired and evidence of successful compliance with the local examination and licensing requirements, if any, in the area for which registration is desired. No examination shall be required for registration.

    (2) Registration allows the registrant to engage in contracting only in the counties, municipalities, or development districts where he has complied with all

    local licensing requirements and only for the type of work covered by the registration.

    
    

12. Section 489.129(1), Florida Statutes, reads as follows, in pertinent part:

    
    

    1. The board may revoke, suspend, or deny the issuance or renewal of the

       certificate or registration of a contractor and impose an administrative fine not to exceed $5,000, place a contractor on probation, or reprimand or censure a contractor if the contractor, or if the business entity or any general partner,

       officer, director, trustee, or member of a business entity for which the contractor is a qualifying agent, is found guilty of any of the following acts:

       * * *

       (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.

       
       

13. The Respondent is charged with having violated Section 489.129(1)(d), Florida Statutes, by reason of willful or deliberate violation of the applicable local law. The ordinances of the City of St. Augustine, by adoption of the Standard Building Code, clearly required that a permit be obtained prior to commencement of work on the subject job. By failing to take any action to obtain a permit or to find out if a permit had been obtained, the Respondent willfully and deliberately disregarded and violated the applicable local law. Accordingly, the Respondent is guilty of a violation of Section 489.129(1)(d), Florida Statutes, as charged.

    
    

14. The Respondent is charged with having violated Section 489.129(1)(j), Florida Statutes, by exceeding the geographical scope of her license in violation of Section 489.117(2), Florida Statutes. The proof is insufficient to sustain this violation. Although there is clear and convincing evidence that Respondent was not licensed as a roofing contractor by St. Johns County, there is no clear and convincing evidence that the Respondent was not licensed as a roofing contractor by the City of St. Augustine. Accordingly, the charge that the Respondent violated Section 489.129(1)(j), Florida Statutes, by exceeding the geographical scope of her license should be dismissed for insufficient evidence.

    
    

15. The Respondent is charged with having violated Section 489.129(1)(m), Florida Statutes, by reason of having engaged in gross negligence, incompetence, misconduct, fraud, or deceit in the practice of contracting. The only facts alleged in the Administrative Complaint in support of this charge are the Respondent's failures to obtain a permit and to request an inspection. There is no clear and convincing evidence that inspections of roofing work were required. Thus, part of the factual foundation for this charge fails for want of proof. I have already concluded that the Respondent's failure to obtain the necessary permit was a willful and deliberate disregard of a legal duty, but such a breach of duty falls short of constituting gross negligence, incompetence, misconduct, fraud, or deceit in the practice of contracting. Accordingly, the charge that the Respondent violated Section 489.129(1)(m), Florida Statutes, should be dismissed for insufficient evidence.

    
    

16. Finally, the Respondent is charged with having violated Section 489.129(1)(j), Florida Statutes, ... by failure to discharge supervisory duty as qualifying agent, in violation of 489.119 and 489.105(4)." In this regard it is first noted that Section 489.105(4), Florida Statutes, is a statutory definition

of the term "qualifying agent." The definition describes the functions typically performed by and the authority and responsibility typically possessed by a qualifying agent, but the definition does not by its specific terms create any duty to perform those functions or exercise those responsibilities.

Accordingly, Section 489.105(4), Florida Statutes, does not, at first blush, appear to be a provision which can be violated by the action or inaction of a contractor. Section 489.119, Florida Statutes, is of similar effect in relevant part. It requires certain business entities to have qualifying agents and specifies the authority that must be possessed by qualifying agents, but does not by its terms specifically impose a duty on the qualifying agent to exercise that authority. Nevertheless, the courts have found in these statutory provisions a legislative intent that a qualifying agent be held responsible for supervision and, despite a host of other cases which require strict construction of disciplinary statutes, have held that proof of failure to supervise is a violation of Section 489.129(1)(j), Florida Statutes. See Alles v. Department of Professional Regulation, Construction Industry Licensing Board, 423 So.2d 624 (Fla. 5th DCA 1982); Hunt v. Department of Professional Regulation, Construction Industry Licensing Board, 444 So.2d 997 (Fla. 1st DCA 1983); Gatwood v. McGee,

475 So.2d 720 (Fla. 1st DCA 1985). The Respondent's failure to obtain a permit or to find out if a permit had been obtained constitutes a failure to discharge supervisory duties. Accordingly, the Respondent is guilty of a violation of Section 489.129(1)(j), Florida Statutes, as charged.

RECOMMENDATION

On the basis of all of the foregoing, it is recommended that the Construction Industry Licensing Board issue a final order in this case to the following effect:

1. Dismissing the violations charged in subparagraphs (b) and (c), of paragraph 13 of the Administrative Complaint;

   
   

2. Finding the Respondent guilty of the violations charged in subparagraphs (a) and (d) of paragraph 13 of the Administrative Complaint; and

   
   

3. Imposing an administrative fine in the amount of five hundred dollars ($500.00) and placing the Respondent on probation for a period of one year.

DONE AND ENTERED this 1st day of December, 1987, at Tallahassee, Florida.

MICHAEL M. PARRISH, 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 1st day of December, 1987.

APPENDIX TO RECOMMENDED ORDER, CASE NO. 87-2672

The following are my specific rulings on all proposed findings of fact submitted by the parties.

Findings proposed by Petitioner:

Paragraph 1: This paragraph is a proposed conclusion of law rather than a proposed finding.

Paragraphs 2 through 7: Accepted.

Paragraph 8: Accepted in part and rejected in part. Accepted that no inspection by the local building department was requested. Portion which states such inspections were required is rejected as not supported by clear and convincing evidence.

Paragraph 9: Rejected as addressing matters which are not clearly placed in issue by the Administrative Complaint and which, in any event, are not supported by clear and convincing evidence.

Paragraph 10: Rejected as not supported by clear and convincing evidence.

Findings proposed by Respondent:

The Respondent did not submit any proposed findings of fact.

COPIES FURNISHED:

Ms. Dorothy Homesley

35 Norde Drive, West Number 18

Jacksonville, Florida 32224

G. Vincent Soto, Esquire

Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32399-0750

Mr. Tom Gallagher Secretary

Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32399-0750

William O'Neil, Esquire General Counsel

Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32399-0750

Mr. Fred Seely Executive Director

Construction Industry Licensing Board Post Office Box 2

Jacksonville, Florida 32201

Docket for Case No: 87-002672

Orders for Case No: 87-002672