STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

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

)

Petitioner, )

)

vs. ) CASE NO. 88-2197

)

DELBERT W. OGDEN, )

Respondent. )

)

RECOMMENDED ORDER

This matter was heard by William R. Dorsey, Jr., the Hearing Officer designated by the Division of Administrative Hearings, on March 15, 1989, in best Palm Beach, Florida. The Department has filed proposed findings of fact and conclusions of law. Rulings on proposed findings of fact are made in the Appendix to this Recommended Order.

APPEARANCES

For Petitioner: Elizabeth R. Alsobrook, Esquire

Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32399-0750

For Respondent: Delbert W. Ogden, pro se

360 Selve Terrace

West Palm Beach, Florida 33415 ISSUE

The issue is whether Mr. Ogden should be disciplined for failure to honor a warranty for reroofing work. The work had been performed by a corporation while Ogden was the corporation's qualifying contractor, but he was no longer the qualifying contractor at the time the claim for warranty work was made.

FINDINGS OF FACT

1. Delbert W. Ogden holds license number CR 0051562 as a registered roofing contractor in the State of Florida. He held this registration at all times material to this action. Mr. Ogden was the qualifying agent for Sealtite Roofing and Waterproofing, Inc. from December 15, 1986 through May 30, 1987.

   
   

   The Watkins Contract

   
   

2. On April 1, 1987, Sealtite Roofing and Waterproofing entered into a contract with Pauline Watkins (Ms. Watkins' name is now Pauline Watkins- Biddulph), to replace the roof on her home. The work included both a cement tile roof and a flat gravel roof. In her dealings with Sealtite Ms. Watkins

   dealt with a salesman, Tom Pagano. She never dealt with Mr. Ogden. Sealtite Roofing agreed to provide a written warranty on the roofing work for a period of

   10 years. It delivered the Warranty when the work was completed.

   
   

3. Ms. Watkins made a deposit with Sealtite at the time the contract was signed. A further amount was paid to Sealtite when the work has halfway finished, on April 27, 1987, and the final payment was made when the work was completed on May 1, 1987.

   
   

4. At the time the house was reroofed, the weather was dry. After rain which occurred in late June, 1987, (almost two months after the work had been completed) Ms. Watkins had a number of leaks, the most serious being a leak in the kitchen. Ms. Watkins notified Mr. Pagano of the problem on June 30; the next day an inspector from Sealtite came to the house. Ms. Watkins then spoke with the office manager of Sealtite who informed her that the roofing would be removed and all water damage would be repaired, that new material to replace the roof had been ordered, and the new roofing material should arrive so that the corrective work could be done during the week of July 6, 1987. No one came in early July to repair the damage, so Ms. Watkins contacted the engineering department of the building division of the Village of North Palm Beach. Nothing came of that contact. Ms. Watkins again called the building inspector for the Village of North Palm Beach on July 22 and was advised to contact the Palm Beach County Construction Industry Licensing Board, because by that time Sealtite's phone had been disconnected. On July 23, 1987, a Mr. Slee, the owner of Sealtite, informed Ms. Watkins that her roof would be inspected again the next day. On July 24, two men appeared at Ms. Watkins' home, inspected the roof and left without speaking with Ms. Watkins. Ultimately, by August 13, 1987, Ms. Watkins complained to investigators with the Florida Department of Professional Regulation about the roofing company's failure to honor its warranty. On August 14, 1987 she was contacted by a Mr. Greg Martin, who claimed to be the qualifier for Sealtite at that time, and Mr. Slee. They were to arrange for repair of the roof by August 31, 1987, but they never did so.

   
   

   Mr. Ogden

   
   

5. Delbert Ogden had disagreements with Mr. Slee, the owner of Sealtite Roofing, which caused him to resign as the qualifier for Sealtite with the Palm Beach County Construction Industry Licensing Board. His letter of resignation was mailed to the Palm Beach County Board on April 27, 1987. He followed this action with a latter to the State of Florida, Department of Professional Regulation, resigning as the qualifier for Sealtite with the State on May 14, 1987. As a result of his letter to the State, he received a receipt from the Jacksonville office of the Construction Industry Licensing Board on May 30, 1987, acknowledging that his license was placed on an inactive status.

   
   

6. Mr. Ogden's first contact with Ms. Watkins was on November 6, 1987. He suggested that Ms. Watkins retain a lawyer to sue Mr. Slee and Sealtite. Ms. Watkins declined, maintaining that the dispute was between Mr. Ogden as the qualifier and Mr. Slee as the owner of the corporation which Mr. Ogden had qualified.

   
   

   Necessary Repairs

   
   

7. Due to the inadequate work that was done on Ms. Watkins' roof by Sealtite, the roof had to be repaired. She paid $2,572.50 to remove and replace the roof Sealtite had installed, and also paid B & N Building Services $950.25 to repair the kitchen and porch ceilings and to replace a beam. She also paid

   375 for new drywall, a repair to another damaged ceiling and other work done by another repair firm.

   
   

   Mr. Ogden's Past History with the Board

   
   

8. On two occasions complaints had been made about Mr. Ogden's work to the Construction Industry Licensing Board. On September 9, 1987, the Board chairman signed a closing order finding there was probable cause to believe that Mr. Ogden did not obtain a permit in a timely manner, and on January 7, 1988, the chairman signed a closing order finding probable cause that Mr. Ogden had failed to honor a guarantee for work on a residential room addition. In both cases, Ogden was sent a letter of guidance. It appears that as the result of receiving the letter of guidance, Mr. Ogden was never provided an opportunity to formally dispute either of the complaints made against him. The mere fact that the Board found probable cause to believe Mr. Ogden may have violated Chapter 489 on prior occasions in no way proves that Mr. Ogden was actually guilty of misconduct on either occasion. There is no factual basis in the record for concluding that Mr. Ogden has been guilty of misconduct on prior occasions.

   
   

   CONCLUSIONS OF LAW

   
   

9. The Division of Administrative Hearings has jurisdiction over this matter. Section 120.57(1), Florida Statutes.

   
   

10. The Construction Industry Licensing Board has the authority under Section 489.129(1)(m), to

    
    

    [R]evoke, suspend or deny the issuance or renewal of the certificate or registration of a contractor ... if the contractor ... is found guilty of any of the following acts:

    * * *

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

    
    

11. Sealtite Roofing and Waterproofing had to have a qualifying agent in order to engage in contracting pursuant to Section 489.119, Florida Statutes.

    Section 489.105(4) defines a qualifying agent as

    
    

    1. 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.

       
       

12. Definitions found in the Florida Statutes do not ordinarily establish substantive legal requirements; requirements are usually stated in a portion of the statute following the definitions. Assuming, for the sake of argument, that

    the definition of qualifying agent imposes an affirmative duty on that agent to supervise and control the activities of the business entity which he qualifies, that substantive requirement is not pertinent to this case. The charge in the Administrative Complaint is not the failure to supervise the contracting activities of Sealtite, but the failure to honor a warranty. The warranty was not provided by the qualifying agent, Mr. Ogden; it was provided by the qualified entity, Sealtite. No demand was made upon Sealtite to honor the warranty at any time when Mr. Ogden may have had the authority to direct the affairs of Sealtite, and to see that warranty claims made were honored appropriately. At no time when Mr. Ogden was the qualifier for Sealtite did Ms. Watkins make a demand on Sealtite for warranty service.

    
    

13. The Board has not cited any statute or final order of the Board establishing that a registered contractor has a duty, continuing indefinitely into the future, to personally honor warranties given by a corporation which the registered contractor had qualified after the registrant has taken appropriate action to terminate his status as qualifier for the corporation.

    
    

14. Paragraph 5 of the Administrative Complaint charges that "Respondent gave a guarantee on [the Watkins] job ... and thereafter failed to reasonably honor said guarantee in violation of Section 489.129(1)(m)." Section 489.129(1)(m), forbids (a) fraud or deceit, (b) gross negligence, (c) incompetency and (d) misconduct in the practice of contracting. There is no evidence of any fraud or deceit on the part of Mr. Ogden with respect to the contract with Ms. Watkins. There are no allegations that the work performed by Sealtite was done incompetently or in a grossly negligent manner, and there was no testimony at the final hearing from anyone experienced in roofing proving that the work performed by Sealtite was done negligently. There is therefore no basis for finding that Mr. Ogden breached any duty to supervise the work on Ms. Watkins' home. The evidence demonstrates that Ms. Watkins never made any claim for warranty work at a time when Mr. Ogden was the qualifying agent for Sealtite.

RECOMMENDATION

Upon consideration of the foregoing, it is

RECOMMENDED that the Administrative Complaint filed against Delbert W. Ogden be dismissed.

DONE and ORDERED this 4th day of May, 1989, in Tallahassee, Leon County, Florida.

WILLIAM R. DORSEY, JR.

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 5th day of May, 1989.

APPENDIX

The following constitute my rulings on proposed findings pursuant to Section 120.59(2), Florida Statutes.

Findings Proposed by Department

1. Covered in paragraph 1.

2. Covered in paragraph 1.

3. Covered in paragraph 2.

4. Covered in paragraph 2.

5. Covered in paragraph 4

6. Covered in paragraph 4.

7. Covered in paragraph 4.

8. Covered in paragraph 4.

9. Covered in paragraph 4.

10. Covered in paragraph 7.

11. Subsidiary to the first clause in paragraph 7.

12. To the extent relative, covered in finding of fact 5.

13. Covered in finding of fact 5.

14. Rejected as subordinate to finding of fact 1.

15. Rejected as irrelevant.

16. Rejected for the reasons stated In finding of fact 8.

COPIES FURNISHED:

Elizabeth R. Alsobrook, Esquire Department of Professional

Regulation

130 North Monroe Street Tallahassee, Florida 32399-0750

Delbert W. Ogden

360 Selve Terrace

West Palm Beach, Florida 33415

Kenneth E. Easley, Esquire General Counsel

Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32399-0750

Fred Seely, Executive Director Florida Construction Industry

Licensing Board Post Office Drawer 2

Jacksonville, Florida 32201

Docket for Case No: 88-002197

Orders for Case No: 88-002197