STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

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

)

Petitioner, )

)

vs. ) CASE NO. 87-5593

)

EMMETT R. ALANIZ, JR., )

)

Respondent. )

)

RECOMMENDED ORDER

This matter came on for hearing in Jacksonville, Florida, before Robert T. Benton, II, Hearing Officer of the Division of Administrative Hearings, on May 9, 1988. Respondent did not appear in person or through counsel. The attached appendix addresses petitioner's proposed findings of fact. Petitioner was represented by counsel:

David Swanson, Esquire

130 North Monroe Street Tallahassee, Florida 32399-0750

By administrative complaint filed September 17, 1987, petitioner Department of Professional Regulation (DPR), alleges that respondent Emmett R. Alaniz, Jr., at all relevant times licensed as a roofing contractor, undertook the repair of George Pettway's roof in February of 1987 for $1,450, but failed to obtain "required inspections, violating local [Atlantic Beach] law, either deliberately or through improper supervision, in violation of 489.129(1)(d), (m), (j);

489.119 [and] 489.105(4)." The administrative complaint also alleges that respondent "committed gross negligence, incompetence, or misconduct in connection with said job, in violation of 489.129(1)(m)." On April 14, 1988, leave was granted petitioner to allege, in addition, that "respondent did business in a name not on his license and which Respondent did not qualify, in violation of 489.129(1)(g), (j) and 489.119."

ISSUE

Whether petitioner should take disciplinary action against respondent for the reasons alleged in the administrative complaint, as amended?

FINDINGS OF FACT

1. Since March 8, 1985, DPR has licensed respondent Emmett Rex Alaniz, Jr., as a roofing contractor, with registration No. RC 0048059. Petitioner's Exhibit No. 1. At no time has DPR licensed the respondent to do business as A Aaron Roofing Co. Petitioner's Exhibit No. 2.

2. In February of 1987, doing business as A Aaron Roofing Co., respondent Alaniz signed a written proposal to repair the roof of the house and garage at

   140 Eighth Street in Atlantic Beach, Florida, which belong to George Pettway. Mr. Pettway agreed to pay the $1,450 Mr. Alaniz asked and accepted the proposal by signing it. Petitioner's Exhibit No. 3.

   
   

3. Work began a day or two after Mr. Pettway and Mr. Alaniz executed the agreement, received in evidence as an attachment to petitioner's Exhibit No. 3. For the most part, Mr. Alaniz turned the job over to laborers whom he supervised briefly mornings. In keeping with the contract, they placed shingles over the existing roof, but the half inch nails they used were not long enough to penetrate the sheathing beneath the existing shingles.

   
   

4. The pitch of the house roof was "approximately 2 in 12." Petitioner's Exhibit No. 4, p. 8. Respondent or his crew used "three tab" or "strip" shingles, despite advice on the packaging in which the shingles arrived that the warranty was void, if the shingles were used on a roof that rose less than three inches for every foot it approached the peak horizontally. Use of the shingles respondent employed on Mr. Pettway's roof also violated code. Petitioner's Exhibits Nos. 6 and 7.

   
   

5. If solid shingles, the "right" shingles for a roof with as "shallow" a pitch as Mr. Pettway's, had been employed, a "nail over" would still have been doomed to buckle and fail. Even though the roof was watertight before Mr. Alaniz began, it would have been necessary, in order to do the job properly, to remove the old shingles before putting new shingles down.

   
   

6. To fasten the bottom row of shingles securely, in the same manner as rows above it, competent roofers applying shingles like those used on Mr. Pettway's house cut off the 5-inch tabs and nail what is left along the eaves, before nailing the first regular row of whole shingles. This makes the thickness of the roof uniform, even along its lower perimeter, and permits sealing the bottom-most shingle edges against the "tar strip" formed by adhesive on the truncated shingles underneath.

   
   

7. Instead of cutting off the tabs of the first shingles laid, respondent or his crew simply turned them upside down, laying them with tabs pointed toward the peak. This had two unfortunate consequences: The "tar strip," formed by an inch-wide band running the length of each shingle just above the notches separating the tabs, was some six inches from the edge of the roof, making the perimeter shingles vulnerable to breakage and loss from wind, which could lift the unsealed tabs. In addition, the roof flared near the edge because of a six- inch-wide "shingle berm" in which three thicknesses of shingles, not the two laid elsewhere on the roof, impeded water flowing down the roof.

   
   

8. Although they first installed "gravel stop" instead of eaves drip flashing, respondent and his crew eventually used standard metal strips. But they overlapped the flashing in the wrong direction, against the flow of water, failed to crimp the seams, failed to join strips properly at corners, so that it pulled away from the fasciae, and nailed only every two or three feet instead of every twelve inches, as good practice dictates.

   
   

9. Flashing was overlooked around a skylight. Only "cold tar" was applied. Respondent Alaniz and the crew working for him left flashing in place that should have been removed and reinstalled once the new shingles had been

   laid. Pipe flashing was not tucked properly nor was boot flashing done properly. In general, the flashing had the effect, not of waterproofing, but of creating water traps.

   
   

10. Laying shingles in a straight line has more than aesthetics to recommend it. The seams between shingles must be tight if the roof is to function as it should. But the rows Mr. Alaniz and his crew laid snaked across the roof willy nilly. Instead of a uniform five inch width, the width of each row varied between three and seven inches.

    
    

11. Gaps between adjacent shingles an inch or a half inch wide were common. Only two or three nails penetrated some shingles, each of which should have been fastened with four (longer) nails. In many instances, Mr. Alaniz or his crew misplaced such nails as were driven.

    
    

12. In places, shingle fragments were pieced together. Cutting shingles with hawkbill knives, Mr. Alaniz and his crew, no doubt inadvertently, slashed some of the newly laid shingles. The roof had to be redone entirely, in any event. Mr. Alaniz contributed nothing to defray the expense of reroofing, or in any way correct the problems with the roof he and his men put on.

    
    

13. Taken as a whole, the work they did was "worse than poor." On a scale of one to ten, it deserved a rating of one half. In every detail the work was done incompetently and irresponsibly. Perhaps that is why respondent never called for a final inspection by the city building inspector, even though the code in force in Atlantic Beach required that he do so.

    
    

    CONCLUSIONS OF LAW

    
    

14. The Construction Industry Licensing Board has statutory authority to take disciplinary action against a licensee like respondent if he 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) Acting in the capacity of a contractor under any certificate or registration issued hereunder except in the name of the certificate-holder or registrant...

    * * *

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

    * * *

    1. Upon proof that the licensee is guilty of fraud or deceit or of gross negligence, incompetency, or misconduct in the practice of contracting. Section 489.129(1), Florida Statutes (1987).

       
       

       When, as here, a licensee has invoked his right to a formal administrative hearing, the petitioner must prove him guilty at a de novo evidentiary hearing, like the one conducted in Jacksonville on May 9, 1988.

15. Strict procedural protections apply in disciplinary cases, and the prosecuting agency's burden is to prove its case clearly and convincingly. Ferris vs. Turlington, 510 So.2d 292 (Fla. 1987). See Addington vs. Texas, 441

    U.S. 426 (1979); Ferris vs. Austin, 487 So.2d 1163 (Fla. 5th DCA 1986); Anheuser-Busch, Inc. vs. Department of Business Regulation, 393 So.2d 1177 (Fla. 1st DCA 1981); Walker vs. State Board of Optometry, 322 So.2d 612 (Fla.

    3rd DCA 1975); Reid vs. Florida Real Estate Commission, 188 So.2d 846, 851 (Fla. 2nd DCA 1966). A licensee's breach of duty justifies revocation only if the duty has a "substantial basis," Bowling vs. Department of Insurance, 394 So.2d 165, 173 (Fla. 1st DCA 1981) in the evidence, unless applicable statutes and rules create a clear duty, which the evidence shows has been breached.

    
    

16. License revocation proceedings have been said to be "`penal' in nature." State ex rel. Vining vs. Florida Real Estate Commission, 281 So.2d 487,

    491 (Fla. 1973); Kozerowitz vs. Florida Real Estate Commission, 289 So.2d 391 (Fla. 1974); Bach vs. Florida State Board of Dentistry, 378 So.2d 34 (Fla. 1st DCA 1979)(reh. den. 1980).

    
    

17. Petitioner does not seek revocation here, citing the rules the Construction Industry Licensing Board has promulgated to govern disciplinary proceedings. In pertinent part, these rules specify guidelines for use "absent aggravating or mitigating circumstances," as follows:

    
    

    (1) 489.129(1)(g), 489.119; Failure to

    qualify a firm, and/or acting under a name not on license. First violation, letter of guidance; ...

    * * *

    (8) 489.129(1)(d): Failure to call for inspections. First violation; letter of guidance; ...

    * * *

    (19) Gross negligence, incompetence, and/or misconduct, fraud or deceit.

    * * *

    1. Causing monetary or other harm to licensee's customer, or physical harm to any person. First violation, $250 to

       $750 fine...

       Rule 21E-17.001, Florida Administrative Code.

       
       

       Apparently anything relevant logically may be taken into account in aggravation or mitigation. The Board's rule provides:

       
       

       Circumstances which may be considered for the purpose of mitigation or aggravation of penalty shall include, but are not limited to, the following:

       1. Monetary or other damage to the licensee's customer, in any way associated with the violation, which damage the licensee has not relieved

       2. Actual job-site violations of building codes, or conditions exhibiting

          gross negligence, incompetence, or misconduct by the licensee, which have not been converted ...

       3. The severity of the offense.

    * * *

    (9) The deterrent effect of the penalty imposed.

    * * *

    (12) Any other mitigating or aggravating circumstances.

    
    

    Petitioner contends that the proof "justifies discipline in excess of the Board guidelines," Petitioner's Proposed Recommended Order, and seeks an order suspending respondent's license until he pays a $1500 fine to the Board, and makes restitution to Mr. Pettway in the amount of $1450.

    
    

18. Perhaps restitution would be an appropriate condition of probation, but probation would be too lenient in the present case. Section 489.129(1), Florida Statutes (1987) does not authorize the Board to order restitution, as such, and the Board's rules do not purport to grant such authority, either, although they contemplate restitution as a mitigating factor. Of paramount importance here is protection of the public by deterring Mr. Alaniz from further predation. In the absence of any mitigating factors in the present case, the gravity and multiplicity of respondent's offenses justify upward departure from the guidelines.

It is, accordingly, RECOMMENDED:

That the Construction Industry Licensing Board suspend respondent Alaniz's license for three years.

DONE and ENTERED this 6th day of June, 1988, in Tallahassee, Florida.

ROBERT T. BENTON, II

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 6th day of June, 1988.

APPENDIX TO RECOMMENDED ORDER, CASE NO. 87-5593

Petitioner's proposed findings of fact have been adopted, in substance, insofar as material.

COPIES FURNISHED:

David Swanson, Esquire

130 North Monroe Street Tallahassee, Florida 32399-0750

Emmett R. Alaniz, Jr. 1198 Song Bird Lane

Jacksonville, Florida 32202

Tom Gallagher Secretary

Department of Professional Regulation

130 North Nonroe Street Tallahassee, Florida 32399-0750

Fred Seely Executive Director

Construction Industry Licensing Board

Post Office Box 2 Jacksonville, Florida 32201

Docket for Case No: 87-005593

Orders for Case No: 87-005593