Judges: J. LAWRENCE JOHNSTON
Agency: Department of Business and Professional Regulation
Latest Update: Feb. 09, 1989
Summary: Not proven that roofing contractor was incompetent or grossly negligent or willfully violated local ordinance, but he didn't adequately supervise employees.
88-3299.PDFSTATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
DEPARTMENT OF PROFESSIONAL REGULATION, ) CONSTRUCTION INDUSTRY LICENSING BOARD, )
)
Petitioner, )
)
v. ) CASE NO. 88-3299
)
JOSEPH H. RAYL, )
)
Respondents. )
)
RECOMMENDED ORDER
A formal administrative hearing was held in this case in Tampa on December 20, 1988, before J. Lawrence Johnston, Hearing Officer, on an Administrative Complaint charging the Respondent, Joseph H. Rayl, with various violations arising out of a re-roofing job. The Administrative Complaint charges that Rayl's roofing business re-roofed a part of the roof of a customer's house without obtaining required permits and inspections and without honoring the guarantee it gave and that Rayl did not properly supervise the job.
Explicit rulings on the Petitioner's proposed findings of fact may be found in the attached Appendix To Recommended Order Case. No. 88-3299. (The Respondent did not file any proposed findings of fact).
APPEARANCES
For Petitioner: Elizabeth R. Alsobrook, Esquire
Department of Professional Regulation
130 North Monroe Street Tallahassee, Florida 32399-0750
For Respondent: William E. Whitlock, III, Esquire
Donald L. Tucker, Esquire
16 East 3rd Avenue Tallahassee, Florida 32303
FINDINGS OF FACT
At all times material to the Administrative Complaint, the Respondent, Joseph H. Rayl, was licensed as a registered roofing contractor in the State of Florida, holding license number RC 0034055.
At all times material to the Administrative Complaint, the Respondent, Joseph H. Rayl also was licensed in the State of Florida as a certified roofing contractor holding license number CC C035625 and as a certified building contractor holding license number CB C033206.
At all times material to the Administrative Complaint, through the time it closed its doors in November, 1987, the Respondent was the sole qualifying agent, owner, and president of Unique Construction, Inc. (Unique).
On or about July 19, 1985, Mrs. Anna M. Adams contracted through a salesman for Unique to reroof the flat roof of her house in St. Petersburg Beach for $1076.
Mrs. Adams contracted with Unique because the company offered a five year warranty on workmanship.
In August of 1985, Unique reroofed the flat roof of Mrs. Adams' house.
Mrs. Adams' roof continued to leak.
Mrs. Adams called Unique every Monday and advised that her roof continued to leak.
Repeated promises were given by Unique that her roof would be repaired.
Unique responded to Mrs. Adams calls for repairs on or about February 18, 1986.
Mrs. Adams' roof continued to leak, and she notified Unique repeatedly. After Mrs. Adams complained to Consumer Affairs in Tampa, Unique again attempted to repair the roof on April 30, 1987.
Mrs. Adams left her home after the April 30th repairs by Unique, but when she returned in August, 1987, the roof had continued to leak. The interior of Mrs. Adams' home was damaged, including, but not limited to, ceiling tiles falling down and her floor and furniture getting wet.
Mrs. Adams repeatedly telephoned Unique from August 5, 1987, advising of the leaking roof. Mrs. Adams sought the assistance of the Better Business Bureau. On September 15, 1987, Unique again attempted to repair the roof.
In January, 1988, Mrs. Adams hired another roofing contractor to repair her entire roof, which included reroofing the shingle roof over the main part of her house, for $2100.
No permits were obtained nor inspections called for by Unique for Mrs. Adams' job.
Unique had continuous access to Mrs. Adams' home to repair her home.
The Respondent repaired the interior of Mrs. Adams' house after he received notice of the complaint from Department of Professional Regulation in February, 1988.
Prior to the hearing, the Respondent had not seen the contract Unique had with Mrs. Adams.
The Respondent had no knowledge of the Adams' job until receiving the Department of Professional Regulation complaint.
Until February, 1988, the Respondent had not seen or examined Mrs. Adams' roof.
Until February, 1988, the Respondent had never spoken with Mrs. Adams. Despite Mrs. Adams repeated requests to speak to the Respondent when she called Unique, the requests never were passed along to the Respondent.
During the late part of 1985 and early part of 1986, Unique had five locations and did 600-700 jobs a year. The Respondent could not personally supervise all the jobs and relied on supervisors.
The Respondent placed authorization letters in the building departments so that his office managers could pull permits for Unique.
The Respondent instructed his office managers to pull permits and call for inspection on all jobs. But he did not adequately monitor the operations of his Tampa office to assure that his instructions were followed in the case of the Adams job.
Failing to obtain building permits and failing to call for inspection constitutes improper supervision as well as violations of local building codes.
The cause of the leak in the Adams roof was in the shingle roof over the main part of the house, not in the flat roof Unique put on or in the "tie- in" between the flat roof and the shingle roof.
A roofer is responsible to advise the customer of the cause of continuous leaks. Unique did not advise Mrs. Adams that repairing her main roof was required to stop the leaks.
The Respondent previously has received letters of guidance from the Construction Industry Licensing Board on October 5, 1987, for violations of Florida Statutes 489.129(1)(d) and 489.129(1)(m).
CONCLUSIONS OF LAW
Section 489.129(1), Florida Statutes (1987), provides:
"The Board may revoke, 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:
(d) Wilful or deliberate disregard and violation of the applicable building codes or laws of the State or of any municipalities or counties thereof.
(j) Failure in any material respect to comply with the provision 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 provisions of this act" require an applicant who proposes to engage in construction as a corporation or other business entity to apply through a qualifying agent. Section 489.119, Florida Statutes (1987).
Section 489.105(4), Florida Statutes, (1987), 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.
The purpose of Section 489.119, requiring a corporation to apply through a qualifying agent, and Section 489.105(4), which sets forth the responsibilities and qualifications of a qualifying agent, is to ensure that construction projects undertaken by a corporation are supervised by a licensed individual. These statutes placed upon the Respondent the duty to properly supervise the construction activities of Unique. Alles v. Department of Professional Regulation, Construction Industry Licensing Board, 423 So.2d 624 (Fla. 5th DCA 1982).
The evidence in this case clearly and convincingly shows that the Respondent did not adequately supervise the reroofing of Mrs. Adams' home. The problems with the old roof causing the continued leaking could have been discussed and remedied if the Respondent had examined and/or supervised the Adams job. The fact that the Respondent's business got too large for him to properly supervise as required by statute does not alleviate his responsibility to his customer. Mrs. Adams, for nearly three years, repeatedly asked Unique to repair her roof. Had the Respondent properly supervised the company, he would have known of the Adams job and the continuous problem with the roof leaking and could have used his knowledge and skill to advise Mrs. Adams what was required to stop the leak.
Had the Respondent properly supervised the company, he would have known if a permit and inspection were obtained as required by law.
The Respondent is guilty of failing to comply with the provisions of Sections 489.119 and 489.105(4), in violation of Section 489.129(1)(i), Florida Statutes (1987), in that he did not properly supervise the contracting or construction activities of Unique and was never on the Adams job until a complaint was filed.
On the evidence of this case, it was not proved that the Respondent wilfully or deliberately disregarded local permitting and inspection requirements, that he is incompetent as a roofing contractor or that he was grossly negligent.
Rule 21E-17.001, Florida Administrative Code, does not provide a guideline for discipline for failure to adequately supervise. But Section (21) of the rule states that the omission of a violation from the guidelines is an oversight and should not be construed to mean that no penalty should be imposed.
Although there is no guideline for the penalty for violation of Section 489.129(1)(j) for failure to supervise as required by Sections 489.119
and 489.105(4), Florida Statutes (1987), the rule provisions for aggravation and mitigation of penalties are pertinent.
Rule 21E-17.002, Florida Administrative Code, provides: "Circumstances which may be considered for the purpose of mitigation or
aggravation of penalty shall include, but are not limited to the following:
Monetary or other damage to the licensee's customer, in any way associated with the violation, which damage the licensee has not relieved, as of the time the penalty is to be assessed. (This provision shall not be given effect to the extent it would contravene federal bankruptcy law).
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.
The severity of the offense.
The danger to the public.
The number of repetitions of offenses.
The number of complaints filed against the license.
The actual damage, physical or otherwise, to the licensee's customer.
The deterrent effect of the penalty imposed.
Any other mitigating or aggravating circumstances."
Rule 21E-17.003, Florida Administrative Code, defines repeat violations:
"(a) As used in this rule, a repeat violation is a 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 (i) 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 are of the same or different subsections of the disciplinary statutes.
(b) 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 generally should be increased
over what is otherwise shown for repeat violations in the above list."
RECOMMENDATION
Based upon the Findings Of Fact and Conclusions Of Law, it is recommended that the Construction Industry Licensing Board enter a final order (1) finding the Respondent, Joseph H. Rayl, guilty of violating Section 489.129(1)(j) by failing to supervise the activities of his company as required by Sections
489.119 and 489.105(4), Florida Statutes (1987); (2) fining him $1000; and (3) suspending his license for three months.
DONE and ENTERED this 9th day of February, 1989, at Tallahassee, Florida.
J. LAWRENCE JOHNSTON 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 9th day of February, 1989.
APPENDIX TO RECOMMENDED ORDER, CASE NO. 88-3299
To comply with Section 120.59(2), Florida Statutes (1987), the following rulings are made on the Petitioner's proposed findings of fact:
1. Accepted but unnecessary.
2.-24. Accepted and incorporated to the extent necessary and not subordinate.
25. Accepted; subordinate to facts found.
26.-29. Rejected as subordinate to facts contrary to those found. The evidence did not prove that the leak was at the tie-in or any other part of the work Unique did in re-roofing the Adams' flat roof. Unique did not fail to honor its guarantee on the work it did.
Accepted; subordinate to facts found.
Rejected as not proven. 32.-33. Accepted and incorporated.
COPIES FURNISHED:
Fred Seely Executive Director
Construction Industry Licensing Board Department of Professional
Regulation Post Office Box 2
Jacksonville, Florida 32201
Elizabeth R. Alsobrook, Esquire Department of Professional
Regulation
130 North Monroe Street Tallahassee, Florida 32399-0750
William E. Whitlock, III, Esquire Donald L. Tucker, Esquire
16 East 3rd Avenue Tallahassee, Florida 32303
Bruce D. Lamb General Counsel
Department of Professional Regulation
130 North Monroe Street Tallahassee, Florida 32399-0750
Docket for Case No: 88-003299
Orders for Case No: 88-003299
| Issue Date |
Document |
Summary |
|
May 23, 1989 |
Agency Final Order
|
|
|
Feb. 09, 1989 |
Recommended Order
|
Not proven that roofing contractor was incompetent or grossly negligent or willfully violated local ordinance, but he didn't adequately supervise employees.
|
