STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF PROFESSIONAL ) REGULATION, CONSTRUCTION )

INDUSTRY LICENSING BOARD, )

)

Petitioner, )

)

vs. ) CASE NO. 88-2721

)

HARRY CLINTON BRACKIN, )

)

Respondent. )

)

RECOMMENDED ORDER

This matter came on for hearing in Chipley, Florida, before the Division of Administrative Hearings by its duly designated Hearing Officer, Diane Cleavinger, on October 17, 1988. The parties were represented as follows:

APPEARANCES

For Petitioner: Elizabeth R. Alsobrook, Esquire

Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32399-0750

For Respondent: Harry Clinton Brackin, pro se

Route 1, Box 2470

Chipley, Florida 32428

The issue addressed in this proceeding is whether Respondent's roofing contractor's license should be disciplined and if so the appropriate penalties.

At the hearing, Petitioner called two witnesses and introduced six exhibits. Respondent testified in his own behalf and called one other witness. Petitioner submitted a proposed recommended order on October 26, 1988.

Respondent did not submit a proposed recommended order. Petitioner's proposed findings of fact have been considered and utilized in the preparation of this Recommended Order except where such proposals were not supported by the weight of the evidence or were immaterial, cumulative or subordinate. Specific rulings on the Petitioner's proposed findings of fact are contained in the Appendix to this Recommended Order.

FINDINGS OF FACT

1. Respondent, Harry Clinton Brackin, is a licensed registered roofing contractor holding license number RC0045880. Respondent was licensed at all times material to this action.

   
   

2. Respondent is the owner and licensee for Brackin Roofing Company. Sometime around February 20, 1987, Respondent entered into a contract with Mrs.

   Arebelle S. Hughes, an elderly woman, to re-roof her house and remodel the front porch of her home located in Vernon, Florida. In addition to the work performed pursuant to the contract, there were verbal construction agreements between Mrs. Hughes and Respondent for the remodeling of the back porch, removing and closing out windows, replacing and framing doors, placing molding in the kitchen and various other carpentry repairs. Ms. Hughes asked Respondent to perform the additional work because she was well satisfied with the roofing job done by Respondent and she was unable to find a licensed contractor willing to come to Vernon and perform the work she wanted done. Respondent, in fact, informed Ms. Hughes he was not a contractor and in his opinion she needed a contractor.

   However, Ms. Hughes still wanted Respondent to do the additional work for the above reasons.

   
   

3. Later, Mrs. Hughes became very dissatisfied with the quality of Respondent's remodeling work and advised the Respondent of her complaints. However, the evidence disclosed that her complaints were not well communicated and Respondent did generally try to meet Ms. Hughes' requests. None of Respondent's work constituted a hazardous condition and no evidence was offered which indicated an actual building code violation. The Respondent has not corrected the work.

   
   

4. Mr. Harold Benjamin, an expert in the area of general contracting, reviewed the contract, the job site, the Respondent's license, and the pertinent Florida Statutes. Mr. Benjamin's expert opinion was that the Respondent's contracting job with Mrs. Hughes definitely exceeded the scope of Respondent's roofing license. Mr. Benjamin added that the carpentry work itself demonstrated an unfitness in the area of carpentry contracting and that Respondent's work did not in some respects meet the minimum carpentry standards for the industry. However, Respondent's work was not so bad as to constitute gross negligence in the area of contracting. This is particularly true since Respondent disclosed to Ms. Hughes that he was not a contractor and that the work she wanted done should be performed by one. Respondent's duty was thereby limited to a duty to perform reasonably given his abilities. Respondent did meet that duty.

   
   

5. Respondent was disciplined for the same type of violation in 1986.

   
   

   CONCLUSIONS OF LAW

   
   

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

   
   

7. Section 489.129(1), Florida Statutes, grants the Construction Industry Licensing Board the authority to take disciplinary action against a licensed roofing contractor. Section 489.129. (1) provides in pertinent part as follows:

   
   

   489.129(1) The board may revoke, suspend, or deny the issuance or renewal of the certificate or registration of a contractor and impose an administration fine not to exceed $5,000.00, 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:

   
   

   489.129(1)(j): Failure in any material respect to comply with the provisions of this act.

   
   

8. "The act" referred to in the above cited statue provides in pertinent part as follows:

   
   

   Florida Statute 489.115: Certification and registration; endorsement, renewals.

   
   

   (1)(b) certificate holder to engage in contracting only for the type of work covered by the certificate.

   
   

   Florida Statute 489.117: 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.

   
   

   Florida Statutes 489.105(3) defines a contractor as the person who is qualified for and responsible for the entire project contracted for and means, the person who, for compensation, undertakes to, submits a bid to, or does himself or by others construct, repair, alter, remodel, add to, subtract from, or improve any building or structure, including related improvements to real estate.

   
   

9. The Administrative Complaint alleged that Mrs. Hughes' job was undertaken by the contracting business Respondent was associated with and responsible for in his capacity as a licensee, and that Respondent exceeded the scope of his license concerning the type of work he was to do.

   
   

10. Petitioner has the burden of proving by clear and convincing evidence that the Respondent committed the alleged acts. Ferris v. Turlington, 510 So.2d 292 (Fla. 1987).

    
    

11. Petitioner has established by clear and convincing evidence that Respondent undertook the contracting job for Mrs. Hughes and exceeded the scope of his license. Respondent is a certified roofing contractor. The Respondent undertook a remodeling job for Mrs. Hughes which consisted of closing in and/or repairing the front and back porches; removing windows and closing up the holes; framing in doors; placing molding in the kitchen; and various other little carpentry items. Such work requires a person to be certified as a general contractor. Respondent had no such license and was only certified as a roofing contractor. Respondent, therefore, exceeded the scope of his certified roofing contractors license and violated Section 489.129(1)(j) and Section 489.115(1)(b), Florida Statutes.

    
    

12. Petitioner proved by clear and convincing evidence that Respondent was disciplined in 1986 for the same type violation.

13. Chapter 21E-17, Florida Administrative Code, sets forth sanctions which the Board may impose for violations of Chapter 489. Rule 21E-17.O01, Florida Administrative Code, provides in part:

    
    

    The following guidelines shall be used in disciplinary cases, absent aggravating or mitigating circumstances and subject to the other provisions of this Chapter.

    * * *

    (3) 489.117, 489.113: Contracting beyond scope of license, no safety hazard. First violation, letter of guidance; repeat violations, $250.00 to

    $750.00 fine.

    
    

14. Rule 21E-17.002, Florida Administrative Code, provides for aggravating and mitigating circumstances which include:

    
    

    1. Actual job-site violations of building codes or conditions exhibiting gross negligence, incompetence, or misconduct by the licensee, which have not been corrected as of the time the penalty is being assessed.

    2. The severity of the offense.

    3. The danger to the public.

    4. The number of repetitions of offenses.

       1. The deterrent effect of the penalty imposed.

       2. The effect of the penalty upon the licensee's livelihood.

       (12) Any other mitigating or aggravating circumstances.

       
       

15. Rule 21E-17.003, Florida Administrative Code, defines repeat violations and provides:

    
    

    1. As used in this rule, a repeat violation is any violation on which disciplinary action is being taken where the same licensee had previously had disciplinary action taken against him or received a letter of guidance in a prior case; and said definition is to apply

       1. regardless of the chronological relationship of the acts underlying the various disciplinary actions, and (ii) regardless of whether the violations in the present and prior disciplinary actions are of the same or different subsections of the disciplinary statutes.

    2. The penalty given in the above list for repeat violations is intended to

    apply only to situations where the repeat violation is of a different subsection of Chapter 489 than the first

    violation. Where, on the other hand, the repeat violation is the very same type of violation as the first violation, the penalty set out above will generally be increased over what is otherwise shown for repeat violations in the above list.

    
    

16. In light of the fact that Respondent's violation while not grossly negligent does constitute a repeat violation for the same offense and due to the fact that a lengthy suspension would have a deleterious affect on Respondent's livelihood, as well as in consideration of the all surrounding facts and circumstances stated above, an administrative fine of $2,500.00 would be reasonable under the provisions of Chapter 21E-17, Florida Administrative Code.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED:

That the Department of Professional Regulation, Construction Industry Licensing Board impose an administrative fine of $2,500.00.

DONE and ORDERED this 5th day of December, 1988, in Tallahassee, Florida.

DIANE CLEAVINGER

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 5th day of December, 1988.

APPENDIX TO RECOMMENDED ORDER, CASE NO. 88-2721

The facts contained in paragraphs 1, 3, 4, 6, 7 and 9 of Petitioner's Proposed Findings of Fact are adopted in substance, in so far as material.

The facts contained in paragraphs 2 and of Petitioner's Proposed Findings of Fact are subordinate.

The facts contained in paragraph 8 of Petitioner's Proposed Findings of Fact are adopted except as to the finding pertaining to gross negligence which is rejected.

COPIES FURNISHED:

Elizabeth R. Alsobrook, Esquire Department of Professional

Regulation

130 North Monroe Street Tallahassee, Florida 32399-0750

Harry Clinton Brackin Route 1, Box 2470

Chipley, Florida 32428

Bruce D. Lamb, Esquire General Counsel

Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32399-0750

Fred Seely, Executive Director

Department of Professional Regulation

Construction Industry Licensing Board Post Office Box 2

Jacksonville, Florida 32201

Docket for Case No: 88-002721

Orders for Case No: 88-002721