STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

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

)

Petitioner, )

)

vs. ) CASE NOS. 88-1776

) 88-2465

RUTH OGEN, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a final hearing in the above-styled matter was held on February 9, 1989, in Miami, Florida, before Joyous D. Parrish, a duly designated Hearing Officer of the Division of Administrative Hearings. The parties were represented at the hearing as follows:

APPEARANCES

For Petitioner: Elizabeth R. Alsobrook

Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32399-0750

For Respondent: Ruth Ogen

17451 N.E. 23rd Avenue

North Miami Beach, Florida 33160 BACKGROUND AND PROCEDURAL MATTERS

This case began on December 14, 1987, when the Department of Professional Regulation (Department) filed an administrative complaint against the Respondent. This complaint alleged Respondent had violated Sections 489.105, 489.119, and 489.129, Florida Statutes, in connection with a job performed for Ardee Yuran. Respondent filed an election of rights which denied the allegations of fact and requested a formal hearing pursuant to Section 120.57(1), Florida Statutes. This case, DOAH case no. 88-1776, was forwarded to the Division of Administrative Hearings for formal proceedings on April 13, 1988.

On January 22, 1988, the Department filed a second administrative complaint against Respondent and alleged violations of Sections 489.105, 489.119, and 489.129, Florida Statutes, in connection with a job performed by Respondent at 1180 N.E. 204 Terrace, North Miami, Florida. Respondent filed an election of rights denying the factual allegations of the complaint and requested a formal hearing. This second case, DOAH case no. 88-2465, was forwarded to the Division of Administrative Hearings for formal proceedings on May 19, 1988.

On October 3, 1988, an order consolidating the two cases was entered.

Subsequently, Petitioner moved for leave to amend the specific charges against Respondent and such motion was granted on December 7, 1988. The amended administrative complaints, filed on November 9, 1988, alleged Respondent did business under a name not on her license which had not been qualified and that Respondent committed gross negligence, incompetence, or misconduct in connection with the performance of jobs either personally or by failure to properly supervise the jobs.

At the hearing, Petitioner presented the testimony of the following witnesses: Ardee Yuran, Walter H. Scott, Bill Mathews, Gary Russell Carruth, Robert Hilson, and Rose Zenar. Petitioner's exhibits numbered 1, 1a, 1b, 1c, 1d, 1f, 1g, 1h, 1i, 1k, 2a, 2b, 2c, 2d, 3, 4, 5, and 6 were admitted into evidence. Respondent testified on her own behalf and presented the testimony of Avraham Ogen. Respondent's exhibits numbered 1 through 8 were admitted into evidence. Petitioner was granted leave to late-file the deposition of James Rodgers which was filed and made a part of this record on February 27, 1989.

The transcript of the proceedings was filed on March 6, 1989.

Subsequent to the filing of the transcript, the parties filed proposed recommended orders which have been considered in the preparation of this order. Specific rulings on the proposed findings of fact are included in the attached appendix.

ISSUE

The central issue in this case is whether Respondent is guilty of the violations alleged in the amended administrative complaints.

FINDINGS OF FACT

Based upon the testimony of the witnesses and the documentary evidence received at the hearing, I make the following findings of fact:

1. At all times material to the allegations, Respondent, Ruth Ogen, was a licensed roofing contractor, license no. CC CO27471. A. R. Ogen Construction, Inc. was qualified by the Department as a roofing contractor.

   
   

2. Respondent is the sole qualifier and licensee associated with the company, A. R. Ogen Construction, Inc.

   
   

3. Respondent is married to Avraham Ogen who presents himself as the president of A. R. Ogen Construction, Inc.

   
   

4. On or about November 9, 1986, A. R. Ogen Construction, Inc. doing business as Ogen Roofing & Waterproofing entered into a contract with Ardee Yuran to replace the entire roof of a commercial structure located at 14951 N.E. 6th Avenue, North Miami Beach (6th Avenue). The contract provided, among other things, that the top row of tiles around the parapet wall would be removed and reinstalled upon completion of the roof.

   
   

5. In negotiating the contract described in paragraph 4, Mrs. Yuran was mindful of the work Avraham Ogen had performed at her residence. Mr. Ogen had supervised the reroofing of Mrs. Yuran's residence which had been satisfactorily performed. The residential job had required the removal of the tiles along the parapet wall and Mrs. Yuran expected the same process would be utilized in completing the commercial roof.

6. The purpose intended to be accomplished by removing the tiles was to allow the roofers to extend the roofing materials up the sides of the parapet and over the crest. The roofing material is then sealed to the wall and the tiles replaced. This procedure results in a waterproof barrier so that when rain accumulates on the flat roof (and the water level rises) it cannot seep through the sealed perimeter.

   
   

7. During the time Mr. Ogen was negotiating and performing the roof work for the 6th Avenue building, he was also retained to paint the structure (which was to be completed after the roof was finished). There came a time when Mrs. Yuran and Mr. Ogen disagreed regarding aspects of the roof work and the painting that was to be done. Eventually, the parties reached an impasse where neither was willing to concede: Mr. Ogen was not willing to perform the work as specified by Mrs. Yuran, Mrs. Yuran was not willing to pay Mr. Ogen any more on the contracts. At this point, Ruth Ogen, Respondent, had not been involved in the daily work progress made at the site. To make matters worse, a leak developed at the 6th Avenue property which resulted in a waterfall pouring down through the overhang of the building.

   
   

8. As a result of the disagreement, both parties retained lawyers and, understandably, the issues escalated. Mrs. Yuran retained three individuals to review the work performed by Mr. Ogen. On March 4, 1987, Walter H. Scott, Scott Roofing & Repair, Inc., determined that water accumulating on the 6th Avenue roof was draining behind flashing which had not been properly sealed to the perimeter walls instead of running through the outlets. Mr. Scott recommended that the flashing be resealed along the wall. Had the tiles been removed and the work been performed as stated in the contract, the leak would have been avoided.

   
   

9. A second licensed roofing contractor, Gary Carruth, Falcon Roofing Co., inspected the property on June 23, 1987, and recommended reflashing the walls along the perimeter of the 6th Avenue building. Mr. Carruth observed that the tiles had not been removed along the wall and that the roofing materials had not been properly sealed along the perimeter.

   
   

10. James Rodgers, a consulting engineer performed a third inspection of the roof at 6th Avenue on June 25, 1987. According to Mr. Rodgers, several items of the contract work completed by Mr. Ogen were inadequately performed. Mr. Rodgers found that the pitch pans were not installed properly around the air conditioning units and that the flashing along the parapet wall was not properly completed nor performed as described in the contract.

    
    

11. Respondent also retained a licensed roofer to review the work at 6th Avenue. Bill Mathews, Bill Mathews Roofing, completed a roof inspection report on November 21, 1988. According to Mr. Mathews, the flashing along the parapet wall required repair because it had been improperly sealed. Mr. Mathews noted that the top row of tile should have been removed so that flashing could have been taken up and over the parapet wall. Mr. Mathews also noted that the flat roof had buckles or "fish mouths" which should have been corrected as the roof was being installed. Mr. Mathews recommended that the flashing be resealed and that the buckles be cut and sealed with membrane and roofing cement. Finally, Mr. Mathews determined that the pitch pans under the air conditioning units should be filled with an asphalt cold process to prevent further cracking and potential leaks.

12. A final inspection report was completed by Robert B. Hilson, Bob Hilson & Company, Inc., on August 18, 1988. Mr. Hilson is a consultant for the Department and made the inspection at the request of its attorney. Mr. Hilson's findings and recommendations mirrored those suggested by Mr. Mathews.

    
    

13. The work performed by Mr. Ogen on the 6th Avenue property did not meet the terms of the contract and did not meet performance standards acceptable in the roofing industry. Mr. Ogen failed to properly seal all flashing materials along the parapet wall, failed to correct the buckles or "fish mouths," and failed to meet the contractual obligations (removing the tiles and extending the flashing over the crest). Because of the substandard work, Mrs. Yuran incurred additional expenses and inconvenience.

    
    

14. Respondent did not view the 6th Avenue structure either before or during the time that her husband supervised the work performed. Respondent's role with the company was as secretary, bookkeeper, and office manager. Mr. Ogen supervised or performed all work at the 6th Avenue job. Respondent did not supervise Mr. Ogen or the workers under his supervision.

    
    

15. "Ogen Roofing & Waterproofing" has not been qualified by the Department as a roofing contractor.

    
    

16. On or about April 28, 1987, A. R. Ogen Construction, Inc. was requested to perform a roofing inspection at 1180 N.E. 204 Terrace. The subject property was under contract for sale and was ultimately purchased by Rose Zenar.

    
    

17. According to the inspection report filed by Mr. Ogen, the roof and roof covering were in satisfactory condition with no evidence of leaks. Mr. Ogen signed the inspection report as president of A. R. Ogen Construction, Inc., state license no. CC CO27471.

    
    

18. During the first rain after she had moved into the house, Mrs. Zenar observed water leaking through the ceiling into the kitchen. She immediately called Mr. Ogen who came out, observed the problem, but did not repair the leak. Mr. Ogen did not return Mrs. Zenar's subsequent calls.

    
    

19. Ultimately, she contacted James Rodgers to perform a second roof inspection. As a result of Mr. Rodgers' inspection, Mrs. Zenar discovered that the leak was of long duration as it had completely rotted and decayed the roof rafters and sheathing in the area of the leak. Mr. Rodgers took pictures of the area which clearly showed the discolored wood. Evidence of the discoloration was visible from the attic entrance located in the garage adjacent to the kitchen.

    
    

20. Mr. Ogen's failure to discover the rotted roof was due to an inadequate inspection of the crawl space between the ceiling and the roof rafters. It is the normal practice of qualified roof inspectors to examine the crawl space between the ceiling and roof supports.

    
    

21. Respondent did not perform the roof inspection at Mrs. Zenar's home, did not supervise the inspection performed by Mr. Ogen, and did not have a checklist of items to be reviewed by him in making the inspection. The erroneous inspection performed by Mr. Ogen resulted in expenses and inconvenience to Mrs. Zenar.

    CONCLUSIONS OF LAW

    
    

22. The Division of Administrative Hearings has jurisdiction over the parties and the subject matter of these proceedings.

    
    

23. Section 489.129, Florida Statutes, provides, 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 $5000, 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:

       * * *

       (g) 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.

       * * *

       (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.

24. Section 489.105(4), Florida Statutes, defines "qualifying agent" as: 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.

    
    

25. Section 489.119, Florida Statutes, authorizes a corporation or other entity to engage in contracting only through a qualifying agent who is certified or registered under Chapter 489. A business entity may not engage in

    contracting without a qualifying agent. Further this section requires evidence of compliance with the statute if a fictitious name is used.

    
    

26. Rule 21E-17.001, Florida Administrative Code, sets forth the guidelines to be used in disciplinary cases. Absent aggravating or mitigating circumstances the following penalties are recommended:

    
    

    (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; repeat violation, $250 to $750 fine.

    * * *

    (19) 489.129(1)(m): Gross negligence, incompetence, and/or misconduct, fraud or deceit.

    * * *

    (b) Causing monetary or other harm to licensee's customer, or physical harm to any person. First violation, $500 to $1500 fine; repeat violation $1000 to $5000 fine and suspension or revocation.

    
    

27. A "repeat violation" is a violation pursued against a licensee where the same licensee has previously had disciplinary action taken against him or received a letter of guidance in a prior case. Rule 21E-17.003, Florida Administrative Code.

    
    

28. In the case at issue, there is no evidence that the violations alleged in the amended administrative complaints are repeat violations as that term is defined.

    
    

29. The parties to a disciplinary action are required to offer evidence of mitigating or aggravating circumstances at the time of the formal hearing. Rule 21E-17.006, Florida Administrative Code. Neither party in this case offered evidence regarding mitigating or aggravating factors.

    
    

30. The Department has established by clear and convincing evidence that the Respondent failed to supervise work being performed under her license. This failure was established as it related to the work performed on the 6th Avenue building and the inadequate inspection. Further, the Department has proved that Respondent's company did not competently perform the work on the 6th Avenue building according to acceptable roofing practices. Respondent is, therefore, guilty of violating Section 489.129(1)(m), Florida Statutes.

    
    

31. Respondent is also guilty of violating Section 489.129(1)(g), Florida Statutes, by her failure to qualify a firm under whose name she did business. The Department established that Respondent utilized a fictitious name, Ogen Roofing and Waterproofing, but had not complied with the fictitious name statute prior to the use of such name.

    
    

32. The Department has also established that by violating the provisions set forth above, Respondent is guilty of violating Section 489.129(1)(j), Florida Statutes.

RECOMMENDATION

Based on the foregoing, it is RECOMMENDED:

That the Department of Professional Regulation, Construction Industry Licensing Board, enter a final order finding the Respondent guilty of the violations set forth above and, based upon the penalties recommended by rule, impose an administrative fine against the Respondent in the amount of $3000.00

DONE and RECOMMENDED this 20th day of April, 1989, in Tallahassee, Leon County, Florida.

JOYOUS D. PARRISH

Hearing Officer

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 20th day of April , 1989.

APPENDIX

RULINGS ON PETITIONER'S PROPOSED FINDINGS OF FACT:

1. Paragraphs 1 through 7 are accepted.

2. With the correction to reflect Mrs. Yuran not Mr. Yuran, paragraph 8 is accepted.

3. Paragraphs 9 through 12 are accepted.

4. Paragraph 13 is accepted.

5. Paragraph 14 is accepted with the correction that the witness' name was Gary Carruth.

6. With the deletion of the last paragraph of paragraph 15 which is rejected as argument or comment, the first five paragraphs of paragraph 15 are accepted. Petitioner is warned not to subparagraph statements of fact or to restate testimony, but to simply set forth the fact deduced from such testimony.

7. Paragraph 16 is rejected as irrelevant or immaterial.

8. Paragraph 17 is accepted to the extent that it finds the reroofing work performed on the 6th Avenue building was a poor quality which was not done under the supervision of a qualified, licensed roofing contractor. Further, it was gross negligence not to properly supervise the job. No conclusion is reached as to whether Respondent is able to supervise a job.

9. Paragraph 18 is accepted.

10. Paragraph 19 is rejected as a recitation of testimony.

11. Paragraphs 20 through 24 are accepted.

12. Paragraphs 25 through 31 are accepted.

13. Paragraph 32 is accepted.

14. Paragraph 33--none submitted.

15. With regard to paragraph 34, the first sentence is accepted. The remainder is rejected as conclusion of law, argument, or comment.

16. Paragraph 35 is rejected as irrelevant.

17. Paragraphs 36-38 are accepted.

18. Paragraph 39 is rejected as comment, irrelevant, or recitation.

19. The first two sentences of paragraph 40 are accepted, the remainder is rejected as comment, conclusion

    of law, or argument.

20. Paragraph 41 is rejected as irrelevant, conclusion of law, or argument.

RULINGS ON RESPONDENT'S PROPOSED FINDINGS OF FACT:

1. Paragraph 1 is accepted.

2. Paragraph 2 is accepted but is irrelevant.

3. Paragraph 3 is accepted.

4. Paragraph 4 is rejected as irrelevant to the issue of whether a competent inspection was performed.

5. Paragraph 5 is accepted.

6. Paragraph 6 is rejected as irrelevant to the issue of whether a competent inspection was performed.

7. Paragraph 7 is rejected as irrelevant or unsupported by the record.

8. Paragraph 8 is accepted.

9. Paragraph 9 is accepted.

10. Paragraph 10 is rejected as contrary to the weight of the credible evidence presented.

11. Paragraph 11 is rejected as argument, speculation, or unsupported by the record.

12. Paragraph 12 is rejected as irrelevant.

13. Paragraph 13 is rejected as argument, irrelevant, or unsupported by the weight of credible evidence.

14. Paragraph 14 is rejected as argument, irrelevant, or comment.

15. Paragraph 15 is accepted but is irrelevant.

16. Paragraph 16 is rejected as argument.

17. Paragraph 17 is accepted but is irrelevant.

18. Paragraph 18 is rejected as irrelevant, argument, or unsupported by this record.

19. Paragraph 19 is rejected as irrelevant.

20. The following are rulings on case no. 88-1776 as submitted by Respondent:

21. Paragraph 1 is accepted.

22. Paragraph 2 is rejected as unsupported by the record.

23. Paragraph 3 is rejected as irrelevant.

24. Paragraph 4 is accepted but is irrelevant, immaterial.

25. Paragraph 5 is rejected as unsupported by the record.

26. Paragraph 6 is rejected as irrelevant, immaterial, or unnecessary.

27. Paragraph 7 is rejected as unsupported by the weight of credible evidence.

28. Paragraph 8 is rejected as irrelevant, immaterial, or unnecessary.

29. Paragraph 9 is accepted but is irrelevant.

30. Paragraph 10 is rejected as irrelevant, immaterial or unnecessary.

31. Paragraph 11 is rejected as irrelevant, immaterial or unnecessary.

32. Paragraph 12 is rejected as irrelevant.

33. Paragraph 13 is rejected as argument or unsupported by the weight of the credible evidence.

34. Paragraph 14 is rejected as contrary to the weight of the credible evidence.

35. Paragraph 15 is accepted but is irrelevant.

COPIES FURNISHED:

Fred Seely Executive Director

Construction Industry Licensing Board Department of Professional Regulation Post Office Box 2

Jacksonville, Florida 32201

Bruce D. Lamb General Counsel

Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32399-0750

Elizabeth R. Alsobrook Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32399-0750

Docket for Case No: 88-001776

Orders for Case No: 88-001776