DEPARTMENT OF PROFESSIONAL ) REGULATION, CONSTRUCTION ) INDUSTRY LICENSING BOARD, )
vs. ) CASE NO. 88-3298
DONALD F. ROYAL, )
Respondent. )
Before J. Lawrence Johnston, Hearing Officer, Division of Administrative Hearings.
Final hearing was held on this case in Tampa on November 22, 1988. The issue is whether the Construction Industry Licensing Board should discipline the Respondent, Donald F. Royal, on charges that he failed to supervise the activities of a construction company for which he was the licensed qualifying agent in violation of Sections 489.129(1)(m) and (j), 489.119, and 489.105(4), Florida Statutes (1987).
Elizabeth R. Alsobrook, Esquire, of Tallahassee, for Petitioner. Donald F. Royal, of Tampa, pro se.
Only the Petitioner filed a Proposed Recommended Order. The proposed findings of fact contained in it are accepted and incorporated to the extent necessary and not subordinate.
At all times material to this proceeding, the Respondent, Donald F. Royal, was licensed as a registered roofing contractor in the State of Florida, holding license number RC 0031831.
During the times of the alleged violations, the Respondent was the sole qualifying agent for J & J Construction Company (the company.)
The principals of the company were the Respondent and a man named James Jimenez. Both men sold jobs for the company and were responsible for overseeing some of the work of the company. The Respondent pulled permits for, and was primarily responsible for, the roofing work contracted by the company. But sometimes, when the company had more than one job going at the same time, the Respondent would be primarily responsible for overseeing one, and Jimenez would be primarily responsible for overseeing the other.
The Respondent thought that Jimenez held a license of some kind that enabled him to do some kinds of minor renovation construction. The Respondent restricted his work to roofing and did not mind Jimenez doing some renovation work on the side, separate from the business of the company. But the Respondent understood that Jimenez' "side deals" would be done separately under Jimenez' own license and would not be part of the business of the company.
On or about August 14, 1986, Jimenez entered into a contract on behalf of the company to build an addition, remodel and reroof the existing structure and roof the addition of the residence of Ernest and Mercedes Riccio located at 3117 West Henry Avenue, Tampa, Florida. The contract price was $18,999.
Jimenez telephoned the Respondent about the job but only told him about the part of the contract that called for the existing roof to be torn off and reroofed. He told the Respondent that the contract price for the job was
$3,800. The Respondent pulled a permit for what he thought was the job and started and finished what he thought was the work to be done. The Respondent personally was compensated approximately $700-$800 for his part in the reroofing job.
When the Respondent was finished, Jimenez continued with the rest of the contract, which was to include roofing the addition, without telling the Respondent about it. Jimenez did not get very far before a Tampa building inspector happened past and, seeing unfamiliar work in process, inspected the job site. He discovered that the building permit displayed at the site had been altered to expand the work purportedly permitted to include building, in addition to the roofing work for which the Respondent had obtained a permit. Someone other than the Respondent (probably Jimenez although he denied it) altered the permit. The Respondent knew nothing about the contract (other than the reroofing that he did), the alteration of the permit, or the work Jimenez was doing after he left the site.
When he discovered the permit violations, the building inspector "red- tagged" the entire job, and work stopped. That was only the beginning of the Riccios' problems. Further investigation revealed that the job would require not only a valid permit but also zoning variances and utility easements. Although the contract had called for the company to obtain all necessary permits, Jimenez and the Riccios agreed that the Riccios would apply for whatever else was necessary in their own names and that Jimenez would assist them.
By the time work stopped, the Riccios already had paid the company
$12,666 of the total contract price. Nonetheless, when Jimenez' minimal assistance did not resolve the Riccios' problems quickly, Jimenez decided that he already had put too much into the job, and he began to lose interest and make himself scarce. The Riccios finally got their necessary permits on January 26, 1987. They then approached Jimenez about the work to be done under the contract (and the matter of the remaining $6,333 draw). The Riccios and Jimenez agreed that the Riccios would provide the materials and supplies necessary to complete the work and the company would provide the labor.
Despite these alternate arrangements, the company did not promptly finish the job. Eventually, the Riccios gave up on Jimenez and in April or May, 1987, began to deal directly with the company's former job superintendent, a man named Ray. To improve their chances of getting the job done (and reduce some of their extra expenses), the Riccios agreed to allow Ray to live in the house free of charge while they were doing the work. The job still did not get finished.
Eventually, Mrs. Riccio and some of her relatives finished the job themselves. Even so, the Riccios wound up spending about $20,000, in addition to the $12,666 they had paid the company, to complete the job which the company had contracted to do for $18,999, total.
The Respondent was not aware of any of Jimenez' dealings with the Riccios after the Respondent completed his reroofing work. The Respondent assumed that Jimenez had called for a final inspection and that the job had been completed satisfactorily. But in approximately February or March, 1987, the Respondent was contacted by a DPR investigator in connection with the Riccios' complaint against the company. He learned at about that time about Jimenez' other dealings with the Riccios. He also learned that the roof over the addition that had been built had failed inspection. The Respondent eventually corrected the deficiencies, and the roof passed final inspection on August 19, 1987.
The Respondent attempts to excuse himself of any wrongdoing, saying that he had a right to delegate the supervision of jobs such as the Riccio job to Jimenez and that he himself was victimized by Jimenez, along with the Riccios. Respondent nonetheless negotiated with Jimenez through the end of the year 1987 in an attempt to come to an agreement to continue to do business together, but the negotiations finally failed.
The Respondent was disciplined by the Construction Industry Licensing Board on January 7, 1988, for offenses which occurred during the same time frame in which the Riccio job took place.
CONCLUSIONS OF LAW
Under Section 489.129(1)(j) and (m), Florida Statutes (1987), authorizes the Construction Industry Licensing Board to revoke or suspend the certificate or registration of a contractor found guilty of: "(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."
The Respondent, as licensee, qualified J & J Construction Company under Sections 489.119 and 489.105, Florida Statutes (1987). The company was not authorized to enter into construction contracts without a qualifying agent.
Under Section 489.105(4), Florida Statutes (1987), a "qualifying agent" is "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 ... [and] who has the responsibility to supervise, direct, manage, and control construction activities on a job for which he has obtained the building permit
..."
The evidence is clear that the Respondent did not meet his obligations under Section 489.105(4) as qualifying agent for the company when it came to the Riccio job. Delegation of day-to-day supervisory duties to Jimenez did not constitute a violation. And the Respondent himself may have been victimized by Jimenez, along with the Riccios. But neither of those facts would excuse the Respondent's total abdication of his responsibilities as qualifying agent to take some steps to inform himself as to what was happening on the jobs Jimenez was working. The Respondent's complete failure to exercise any form of
supervision over the Riccio job was a violation of the statutes. See Hunt v. Dept. of Prof. Reg., 444 So.2d 997 (Fla. 1st DCA 1983); Alles v. Dept. of Prof. Reg., 423 So.2d 624 (Fla. 5th DCA 1982).
F.A.C. Rule 21E-17.001 establishes as a guideline, subject to aggravating and mitigating circumstances, that the penalty for the first violation of Section 489.129(1)(m), Florida Statutes (1987), where the violation causes monetary damage, should be a fine in the range of $500 to $1,500.
F.A.C. Rule 21E-17.002 suggests consideration of the following factors, among others less pertinent to the facts of this case, in aggravation and mitigation of the penalty guidelines established in Rule 21E-17.001: "(a) Monetary or other damage ... which ... the licensee has not relieved, as of the time the penalty is to be assessed ... (c) The severity of the offense ... (d) The danger to the public ... (e) The number of repetitions of offenses ... (f) The number of complaints filed against the licensee ... (h) The actual damage, physical or otherwise, to the licensee's customer ... (i) The deterrent effect of the penalty imposed."
Based on the foregoing Findings Of Fact and Conclusions Of Law, it is recommended that Construction Industry Licensing Board enter a final order finding the Respondent, Donald F. Royal, guilty of violating Section 489.129(1)(j) and (m), Florida Statutes (1987), and imposing on him an administrative fine in the amount of $1,000.
RECOMMENDED this 20th day of December, 1988, in Tallahassee, Florida.
J. LAWRENCE JOHNSTON Hearing Officer
Filed with the Clerk of the Division of Administrative Hearings this 20th day of December, 1988.
Mr. Fred Seely, Executive Director Construction Industry Licensing Board Post Office Box 2
Elizabeth R. Alsobrook, Esquire Department of Professional Regulation
Donald F. Royal, pro se 8509 North 16 Street
Bruce D. Lamb General Counsel
Dept. of Professional Regulation
