STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
DEPARTMENT OF PROFESSIONAL ) REGULATION, )
)
Petitioner, )
) CASE NOS. 88-5197
vs. ) 88-5198
) 88-5199
RICHARD LEE MELVIN, )
)
Respondent. )
)
RECOMMENDED ORDER
A formal hearing was held on March 15, 1989, before Division of Administrative Hearings Hearing Officer, J. Lawrence Johnston, in St. Petersburg, Florida.
APPEARANCES
For Petitioner: Jack M. Larkin, Esquire
806 Jackson Street
Tampa, Florida 33602
For Respondent: Richard L. Melvin
12737 North Florida Avenue Tampa, Florida 33612
ISSUE
Whether disciplinary action should be taken against the Respondent's contractor license number CG C022926, issued by the State of Florida, based upon the violations of Section 489.105(4), 489.113(3), 489.117(2), 489.115(1)(b), 489.119, and 489.129(1)(d), (e), (g), (j) and (m), Florida Statutes (1987), alleged in three administrative complaints filed by the Petitioner.
BACKGROUND
On or about July 20, 1988, the Petitioner filed its amended administrative complaint against the Respondent in Case No. 88-5199 (DPR 92082), alleging: (1) that a certain contracting job was undertaken with the Armstrongs to reroof their house, that it was undertaken by a contractor who was not properly licensed under state licensing laws, that the Respondent aided on said job by obtaining or authorizing the obtaining of a permit for said job, using the Respondent's licensure, violating Sections 489.129(1)(e), (m), (g) and (j), 489.119, and 489.105(4), Florida Statutes (1987); (2) that the Respondent proceeded without timely obtaining all required inspections, violating local law, either deliberately or through improper supervision, in violation of Sections 489.129(1)(d), (m) and (j), 489.119, and 489.105(4), Florida Statutes (1987); (3) that the Respondent committed gross negligence, incompetence or misconduct in connection with said job in violation off Section 489.129(1)(m),
Florida Statutes (1987); and (4) that the Respondent had previously been disciplined by the Petitioner, having received a letter of guidance.
On or about December 27, 1988, the Petitioner filed its amended administrative complaint against the Respondent in Case No. 88-51198 (DPR #90275), alleging: (1) that a certain contracting job was undertaken with the Clems to remodel and reroof the customers' house, that the job was undertaken by a contracting business the Respondent was associated with and responsible for in his capacity as licensee, and that the work on said job failed to fully comply with the applicable local codes, violating Sections 489.129(1)(d) and (m), Florida Statutes (1987); (2) that the Respondent was guilty of fraud or deceit or gross negligence, incompetency or misconduct in connection with the job in violation of Section 489.129(1)(m), Florida Statutes (1987); (3) that the Respondent did business under a name not on his license, and which the Respondent did not qualify, in violation of Sections 489.129(1)(g) and (j) and 489.119, Florida Statutes (1987); and (4) that the Respondent exceeded the scope of his license concerning the type of work done and failed to properly subcontract the work, violating Sections 489.129(1)(j), 489.115(1)(b), 489.117(2), and 489.113(3), Florida Statutes (1987).
On or about June 25, 1988, the Petitioner filed its administrative complaint against the Respondent in Case No. 88-5197 (DPR #86616) alleging: (1) that a certain contracting job was undertaken with the Warzyboks for roof repair, that the job was undertaken by a contracting business the Respondent was associated with and responsible for in his capacity as a licensee, that in connection with the job the Respondent gave a guaranty on the job to the customer and thereafter failed to reasonably honor the guaranty in violation of Sections 489.129(1)(m) and (j), 489.119, and 489.105(4), Florida Statutes (1987); (2) that the Respondent did business under a name not on his license and which the Respondent did not qualify, in violation of Sections 49.129(1)(g) and
and 489.119, Florida Statutes (1987); (3) that the Respondent exceeded the scope of his license concerning the type of work done and failed to properly subcontract work, violating Sections 489.129(1)(j) 489.115(1)(b) , 489.117(2), and 489.113(3), Florida Statutes (1987); (4) that the Respondent committed gross negligence, incompetence or misconduct with the job in violation of Section 489.129(1)(m), Florida Statutes (1987); (5) that the Respondent failed to properly supervise the job site activities on the job in violation of Sections 489.129(1)(m) and (j), 489.119, and 489.105(4), Florida Statutes (1987); and (6) that the Respondent had previously been disciplined by the Petitioner, having received a letter of guidance.
After the filing of the administrative complaints, the Respondent requested a formal hearing by executing an Election of Rights form. The case was referred to the Division of Administrative Hearings for a Section 120.57(1), Florida Statutes, hearing.
FINDINGS OF FACT
At all times material to this proceeding, the Respondent, Richard Lee Melvin, was a licensed contractor in the State of Florida, having been issued license number CG C022926, by the State of Florida.
The Armstrong Job
On or about February 26, 1987, Mr. and Mrs. Armstrong entered into a contract with Sunshine State Homes to do certain siding work and roofing work on
two mobile homes owned by the Armstrongs located at 4605 and 4607 Orange Drive in Holiday, Florida. The cost of the repairs under the contract was $6,400.
Although the Respondent did not sign that contract, his name and license number appeared on it, he applied for and was granted the necessary Pasco County permit for Sunshine State Homes using his licensure. At the time he applied for the permit, the Respondent knew that Sunshine State Homes was not licensed since he was considering qualifying that company. The permit that the Respondent received from Pasco County required, among other things, that all the Respondent's work conform with the requirements of state and county codes and regulations.
The Respondent acted in the capacity of a contractor for Sunshine State Homes even though his certificate did not contain the name Sunshine State Homes.
After the signing of the contract, work began on both structures. The roof was replaced on the main structure, and the Armstrongs were informed that the Rainbow Roof System contracted for could not be installed. After work began, it rained and because of improper construction techniques, both mobile homes flooded. Representatives of Sunshine State Homes attempted to correct the problems, but when it rained again, there was substantial leaking in both mobile homes. A rug from the main mobile home had to be removed. Another attempt was made to correct the leaks at the rental unit by re-coating the roof with sealant. Again, it rained, and both mobile homes flooded. Both mobile homes had leaks where, prior to construction beginning, they did not have leaks.
Insurance covered $1,200 of the damage to the main mobile home. There also was damage that was not covered by insurance.
The type of roof put on the main coach resulted in leaks all along the seam between the roof over the main coach and the roof over the addition to the main structure. The water leaked through the walls of the mobile home, causing water damage.
On or about April 7, 1987, the roofs supposedly were finished, and the contractor wanted the rest of his money. The Armstrongs refused to give the balance of the money until another heavy rain was experienced. After representatives from Sunshine State Homes made various threats, the owners paid Sunshine State all but $900 of the contract price. The $900 was withheld to cover the water damage sustained as a result of the leaks.
The work that was done was required to be inspected by Pasco County. The work had not been inspected because neither the Respondent nor anyone else from Sunshine State had called for inspections.
The work that was done deteriorated over the summer months. On October 14, 1987, the homeowners contracted with Holiday Aluminum to replace the two mobile home roofs in accordance with the contract previously entered into between the homeowners and Sunshine State Homes. It cost the homeowners $4,300 to have the two new roofs installed. They have not experienced any problems with the roofs installed by Holiday Aluminum.
The work Sunshine State did under the Respondent's licensure was done in a grossly negligent or incompetent manner.
The Respondent and Tropical Exteriors
The Respondent was contacted by Jeff Gaston, in mid-November, 1986. Gaston wanted the Respondent to qualify Gaston's company, Tropical Exteriors and Services, Inc. The Respondent met with Gaston and Gaston's attorney, and the Respondent understood that it would take time for all of the paperwork to be concluded.
Towards the end of March, 1987, the Respondent started having concerns about his business relationship with Gaston and Tropical. However, the Respondent took no action to terminate that relationship or otherwise advise any governmental agencies involved or homeowners that he was not associated with Tropical until May 13, 1987.
There was a continuous business relationship between the Respondent and Tropical for the period November, 1986, through May 13, 1987.
The Respondent never qualified Tropical. The Respondent knew that Tropical was using his name in connection with its business after November, 1986. He also thought he would be given notice of any contracts Tropical entered into. But Tropical entered into contracts with the Clems and the Warzyboks and began work without telling the Respondent. The homeowners relied on Tropical's representations regarding the Respondent's association with the business.
The Clem Job
In November, 1986, Mr. and Mrs. Clem knew that they needed a new roof on their residence located 10511 - 53rd Avenue North, St. Petersburg, Florida, because the shingles were curling. However, they did not have any leaks in the roof.
In November, 1986, the Clems were contacted by Millie Morris regarding the roof repairs. Morris stated that she worked for Tropical and was representing U.S. Steel. She advised the Clems that she would like to use the Clem home in an advertising campaign.
The Clems did not have the cash money to pay for the repairs and needed financing. As part of that financing, Morris stated that she would give the Clems a $300 rebate on contracting resulting from any leads the Clems gave her. The Clems were able to obtain a second mortgage on their home which provided for the financing of the needed improvements.
On or about February 9, 1987, the Clems entered into a contract with Tropical. At the time of the signing of the contract, Morris again reaffirmed to the Clems that any leads the Clems gave Morris that resulted in a contract would result in the Clems being paid the sum of $300. The Clems put $1,000 down at the time of signing the contract and were to pay $1,500 during the course of the job and $2,500 on completion of the job.
Before entering into the contract, the Clems relied on the information on the contract letterhead which contained the Respondent's name, type of state certificate, license number, number of years of experience and a representation
that the Respondent was insured. Additionally, the Clems called the Better Business Bureau and checked on Tropical to see if any complaints had been filed.
The contract provided for, among other things, the removal of the old roof, installation of a new roof, the installation of soffit and facia, the installation of doors and windows and a guaranty on all the work.
Shortly after the contract was signed and work was started on the roof, the Clems told Morris the people across the street from them needed repairs. Those people signed a contract with Tropical to have their roof replaced. The work was done, but the Clems received nothing for giving Tropical the customer lead.
After the work was done, the Clems dealt with Morris and Gaston. Several times after the job was started, the Clems tried to get Gaston on the job site because the roof was leaking, there was no flashing around the drain pipes and vents, the aluminum edging was bent in many places and the siding had fallen on the ground.
Several times when a representative of Tropical was on the job site, Mrs. Clem pointed out to them that the aluminum was bent in places, the seams were cut crooked, there were unnecessary splices in the aluminum, there were bad cuts around certain pipes, there was an electric light left hanging, the wrong weather stripping had been installed around the door, other weather stripping was not put up right, the windows were not sealed, the roof leaked, there was unnecessary tar on the shingles and there were aluminum overlaps facing the street, among other things.
From that point forward, representatives of Tropical assured the Clems on many occasions that those problems would be corrected by a date certain, but the deadline was missed in every base. During the construction, the Clems agreed to pay Tropical the $1,500 due during the construction and $2,000 of the
$2,500 that was due at the end of construction because a representative of Tropical explained to them that the job was near completion, Tropical needed the money to cover expenses and that Tropical would put in a bedroom window in the Clems residence at no charge.
After many telephone conversations and on-site inspections by Tropical, all to no avail, Tropical agreed to finish the job if the Clems would pay him the remaining $500 and if the Clems would pay him an additional $150 for the bedroom window Otherwise, Tropical threatened to forfeit the $500 and not complete the job. The Clems agreed because they knew that it would cost them more than $500 to have the job completed by someone else. The job still was not competed, and the complaints were not corrected.
The Clems called another siding contractor, who told the Clems that he would charge $750 just to correct the siding problems, that no permits had been pulled for the job and that the Clems should not allow any further work to be done until the permits had been pulled for the siding and the roof.
When the building department received the siding contractor's inquiry regarding the permits, it contacted Tropical.
The Clems had several conversations with their attorney, who advised the Clems that it would be cheaper to attempt to solve the problem with Tropical than to get a new contractor. Several attempts were made to have Tropical complete the job, but Tropical continuously failed to honor its agreements.
The last time anyone from Tropical was on the job site was April 17, 1987. As of the hearing date, the complaints had not been corrected, and the work had not been completed in accordance with the contract.
On or about March 13, 1987, the Respondent obtained a building permit from Pinellas County, Florida, for the installation of the aluminum soffit and facia work, only. Later, after the Respondent had terminated his relationship with Tropical, the job was inspected by the Department of Building Inspections of Pinellas County and was cited for violations of the applicable local codes which never were corrected.
The work that was done was done in a grossly negligent or incompetent manner.
The Warzybok Case
On or about January 14, 1987, Mr. and Mrs. Warzybok, entered into a contract with Tropical Exteriors and Services, Inc., for the removal and replacement of the Warzyboks flat roof at their residence located at 6088 - 27th Avenue, St. Petersburg, Florida.
Before entering into the contract, the Warzyboks relied on the information on the contract letterhead which contained the Respondent's name, type of state certificate, license number, number of years of experience and the representation that the Respondent was insured. Additionally, the Warzyboks called the Better Business Bureau and checked on Tropical Exteriors and Services, Inc., to see if any complaints had been filed.
Before entering into the contract, the Warzyboks' old flat roof was leaking on the outside of an exterior wall but was not leaking inside.
Shortly after the contract was signed, Tropical tore off the old roof, mopped one coat of tar over it, and after it started to rain, put some visqueen over the roof and left. Sometime during the following week, representatives of Tropical finished mopping, put some roof paper down and did some other miscellaneous work.
Approximately one week later, Warzybok had the tile roof over the main house pressure cleaned (this roof was connected to the flat roof). When the water from the pressure cleaning came off the tile roof onto the flat roof, the water flooded the room underneath the flat roof. The Warzyboks also discovered that there were broken tiles on the roof over the main house. The flat roof was now leaking inside as well as outside.
The Warzyboks attempted on numerous occasions to contact Tropical and have Tropical correct the problems and finish the work. Numerous appointments were made to finish the work and correct the problems, most of which were not kept. Whatever work was done by Tropical did not complete the job or correct the problems. At one point, Tropical sent out a new roofer, Bill Vance, who told the Warzyboks that the roof needed to be totally redone.
Several months after the job was started, the homeowners called the City to get an inspection and determined that no permit had been obtained for the job.
The City of St. Petersburg Building Department went to the Warzybok property and determined that there had been no permit issued and that the persons who were working on the premises were not licensed roofers. The building department placed a stop order on the work and told the Warzyboks that they needed a licensed roofer to complete the job.
The job still has not been completed, and the problems have not been corrected. As of the hearing date, the Warzyboks have problem with leaking skylights, skylights covered with tar, a leaking fireplace, plaster being separated from the sheetrock because of water damage, roofing tiles that were not replaced after they were broken by Tropical and tar on the bottom of the roof, among other things.
The Warzyboks got an estimate of $275 just to replace one piece of plaster adjacent to the fireplace only.
Tropical started the roof as a three-ply roof and then changed the roof to a one-ply roof. There has been leaking at the chimney and at the skylights, which were not properly installed Some of the tile removed from the main roof at the point of tie-in with the flat roof has not been replaced properly and, in some places, has not been replaced at all.
The Respondent, under whose license the work was done, did not know of, and did not properly supervise, the installation of the roof. The roof was installed in an incompetent manner.
CONCLUSIONS OF LAW
Under Section 489.129, Florida Statutes (1987), the Construction Industry Licensing Board may revoke, suspend or otherwise discipline the license of a contractor for any of the following violations of Section 489.129(1): (d) willful or deliberate disregard and violation of the applicable building codes or laws of the State or any municipality or county; (e) aiding or abetting any uncertified or unregistered person to evade any provision of this act; (g) acting in the capacity of a contractor under any certificate or registration issued hereunder except in the name of the certificate holder or registrant as set forth on the issued certificate or registration; (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 amended administrative complaint in Case No. 88-5199 (the Armstrong job) alleged: (1) that the Armstrong job was undertaken by a contractor who was not properly licensed under State licensing laws and that the Respondent aided on the Armstrong job by obtaining or authorizing the obtaining of a permit for the job using the Respondent's licensure, violating Sections 489.129(1)(e), (m), (g) and (j), 489.119 and 489.105(4), Florida Statutes (1987); (2) that the Respondent proceeded on the Armstrong job without timely obtaining all required inspections, violating local law either deliberately or through improper supervision in violation of Sections 489.129(1)(d), (m) and (j), 489.119, and 489.105(4), Florida Statutes (1987); and (3) that the Respondent committed gross negligence, incompetence or misconduct in connection with the job in violation of Section 489.129(1)(m) , Florida Statutes (1987).
To evade the provisions of chapter 489, Florida Statutes, the Respondent acted in the capacity of the contractor for Sunshine State Homes by allowing his name and license number to appear on the contract and by obtaining
the permit for the job. Sunshine State Homes was not on the Respondent's certificate of registration. This violated Section 489.129(1)(e) and (g), Florida Statutes, which also violated Section 489.129(1)(m). As for Section 489.129(1)(j) , Florida Statutes, the Respondent violated Section 489.119, Florida Statutes, in that he aided or abetted Sunshine State Homes to evade the licensing requirements of Chapter 489 when the Respondent obtained the permit for Sunshine State Homes knowing that the Respondent was not legally qualified to act for Sunshine State Homes and that the Respondent did not have the authority to control the contracting activities of Sunshine State Homes.
The work that was done on the Armstrong's residence was required to be inspected by Pasco county, Florida, and it was not. The Respondent knew that inspections were required because of his past experience and because the building permit issued expressly required them. The Respondent deliberately or willfully disregarded and violated the building codes of Pasco County, Florida.
The Respondent is guilty of gross negligence, incompetence or misconduct in regard to the Armstrong job in allowing the workmen under his license to inform the Armstrongs that the Rainbow roof for which they contracted could not be installed (it was by a subsequent contractor), creating a water leak all along the seam between the two roofs, allowing both mobile homes to be flooded on many occasions, improperly installing the siding and failing to correct the foregoing deficiencies after being given ample opportunity to do so, among other things.
The amended administrative complaint in Case No. 88-5198 (the Clem job) alleged: (1) that the Clem job was undertaken by a contracting business with which the Respondent was associated and responsible for in his capacity as a licensee; (2) that the work on the job failed to fully comply with the applicable local codes, violating Section 489.129(1)(d) and (m), Florida Statutes; (3) that the Respondent was guilty of fraud or deceit or gross negligence, incompetency or misconduct in connection with the job in violation of Section 489.129(1)(m), Florida Statutes; (4) that the Respondent did business under a name, Tropical, not on his license and which the Respondent did not qualify, in violation of Sections 489.129(1)(g) and (j) and 489.119, Florida Statutes; and (5) that the Respondent exceeded the scope of his license concerning the-type of work performed and failed to properly subcontract that work, violating Sections 489.129(1)(j), 489.115(1)(b), 489.117(2), and 489.113(3), Florida Statutes, by doing work for which the Respondent was not licensed.
Clear and convincing evidence was presented to establish that during the period of time encompassing both the Clem and Warzybok jobs (Cases #88-5198 and #88-5197, respectively), there was a continuous business relationship between the Respondent and Tropical. During that period, the Respondent allowed Tropical to have contracts printed which contained the Respondent's name, number of years of experience, type of state license, license number and insurance information, among other things, on which both homeowners relied. The Respondent was responsible for Tropical in his capacity as a licensee during the period of both jobs.
When the Clem job began, no permit was obtained for it even though Pinellas County required one. After the job began, the Respondent obtained a building permit for the soffit and facia work, only. Violations of the Building Code of Pinellas County occurred and were never corrected. Both the roof and siding were red-tagged by the Pinellas County Building Department for violations of its code and were never corrected. It was not proved that the Respondent
willfully or deliberately committed code violations in connection with his soffit and facia work or that he willfully or deliberately failed to get a permit for the other work. (He did not know about it until much later.) But having learned that Tropical, the company he was responsible for, committed code violations in connection with work other than the soffit and facia, the Respondent did not take steps to correct the violations, including hiring qualified subcontractors if necessary. In failing to act to correct the violations, the Respondent violated Section 489.129(1)(d) and (m), Florida Statutes.
The Respondent violated Section 489.129(1)(m), Florida Statutes. Before the work began, the Clems' residence needed a new roof, but the old roof was not leaking. The roof Tropical attempted to install leaked. There also was no flashing around the drain pipes and vents, the aluminum edging was bent in many places, there was siding falling off on the ground, none of the corners were finished properly, the J-channels were cut too short leaving gaps, there were bent places in the aluminum, the seams were cut crooked, there were unnecessary splices in all the aluminum, there were bad cuts around the piping and an electric light was left hanging, the wrong weather stripping was placed around doors, in other places the appropriate weather stripping was not put up right, the windows were not sealed, the caulking around the inside of the windows are incorrectly done, there was unnecessary tar on the shingles, there were overlaps facing the street, and there was inadequate flashing. Additionally, the promised referral fee was never paid to the Clems. Through fraud or deceit, Tropical coerced the Clems into paying additional money on the contract to correct work which should have been done right in the first place and which was not done even after additional money had been paid. While the Respondent himself was not guilty of fraud or deceit, he was guilty of gross negligence, incompetency or misconduct in the practice of contracting, not only as to his soffit and facia work, but also in his failure to supervise the activities of Tropical.
The Respondent never qualified Tropical. The Respondent did business under the name Tropical while not being legally qualified to act for Tropical in all matters connected with its contracting business and without having authority to supervise construction undertaken by Tropical, violating Sections 489.129(1)(g) and (j) and 489.117, Florida Statutes, in regard to both the Clem job and the Warzybok job.
The Respondent is a licensed general contractor. Subject to certain exceptions, not applicable to this case, the Respondent is not licensed to do roofing work. The only roofing permit for the Clem work was obtained by Evans Roofing Company in May, 1987, after the date the roofing work on the Clem residence had begun and was supposedly completed. (No work actually was done on the roof under that building permit.) But, although Tropical exceeded the scope of the Respondent's license, it was not proven that the Respondent had knowledge of, or allowed, the roofing work Tropical did on the Clem job and the Warzybok job. The evidence did not establish violations of Sections 489.129(1)(j), 489.115(1)(b), 489.117(2), and 489.113(3), Florida Statutes.
The administrative complaint in Case No. 88-5197 (the Warzybok job) alleged: (1) that the Warzybok job was undertaken by a contracting business the Respondent was associated with and responsible for in his capacity as a licensee; (2) that the Respondent gave a guaranty to the Warzyboks and failed to reasonably honor the guaranty in violation of Sections 489.129(1)(m) and (j), 489.119, and 489.105(4), Florida Statutes; (3) that the Respondent did business under a name, Tropical, not on his license and which the Respondent did not
qualify, in violation of Sections 489.129(1)(g) and (j) and 489.119, Florida Statutes; (4) that the Respondent exceeded the scope of his license concerning type of work and failed to properly subcontract work, violating Sections 489.129(1)(j), 489.115(1)(b), 489.117(2), and 489.113(3), Florida Statutes, by
doing roofing work which the Respondent was not licensed to do; (5) that the Respondent committed gross negligence, incompetence or misconduct in connection with the Warzybok job in violation of Section 489.129(1)(m), Florida Statutes; and (6) that the Respondent failed to properly supervise the Warzybok job activities in violation of Sections 489.129(1)(m) and (j), 489.119, and 489.105(4), Florida Statutes.
Like the Clem job, the Warzybok job was undertaken by a contracting business the Respondent was associated with and responsible for in his capacity as a licensee. The contract between Tropical and the Warzyboks provided for a five-year warranty on workmanship and a twenty-year warranty on materials. Although failure to correct work done generally is more properly decided through the courts, in this case the failure to honor the warranties was incompetent or grossly negligent and violated Section 489.129(1)(m), Florida Statutes.
As with the Clem job, the Respondent did the Warzybok job under a name not on his license and which Respondent did not qualify, violating Sections 489.129(1)(g) and (j) and 489.119, Florida Statutes.
As with the Clem job, the Warzybok job does not show violations of Sections 489.129(1)(j), 489.115(1)(b), 489.117(2), and 489.113(3), Florida Statutes. See Conclusion 11, (renumbered 55) above.
The Warzybok contract was performed in a grossly negligent manner and exhibited incompetence in several areas of construction. Before the work began, the Warzybok roof was leaking only on an outside wall. Tropical started the roof as a three-ply roof and then changed to a one-ply roof. Tiles on the tile roof which tied into the roof where the work was done were broken and not replaced. After the work, the roof leaked inside as well as outside. The roof leaked around the chimney and around the skylights. The skylights were covered with tar, and plaster was being separated from the sheetrock because of the water. Since the Respondent did not even know about the Warzybok job until after the fact, his violation of Section 489.129(1)(m) was not in the performance of the work itself but in his gross negligence and incompetence in supervising the business of Tropical after he agreed to be its qualifying agent.
Section 489.119, Florida Statutes, provides that a licensee who qualifies a contractor must have the authority to supervise construction undertaken by the contractor. Section 489.105(4), Florida Statutes, provides that a qualifying agent means a person who has the responsibility to supervise 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 a building permit. The qualifying agent has a duty to supervise the contractor's work and the complete failure to supervise that work is a violation of Section 489.129(1)(m), Florida Statutes. The Respondent's complete failure to supervise the Warzybok job was a violation of Section 489.129(1)(m), Florida Statutes.
The following parts of Chapter 21E-17, Florida Administrative Code, apply to the appropriate punishment for the violations the Respondent committed in connection with the Armstrong, Clem and Warzybok jobs:
21E-17.001 Normal Penalty Ranges. The following guidelines shall be used in disciplinary cases, absent aggravating or mitigating circumstances and subject to the other provisions of this Chapter.
(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.
* * *
(5) 489.129(1)(d): Permit violations.
Late permits. Contractor pulls permit after starting job but prior to completion of same and does not miss any inspections.
First violation, letter of guidance; repeat violation, $500 fine.
Job finished without a permit having been pulled, or no permit until caught after job, or late permit during the job resulting in missed inspection or inspections. First violation, $250 to $750 fine; repeat violation, $1000 to $2000 fine.
* * *
(8) 489.129(1)(d): Failure to call for inspections. First violation, letter of guidance; repeat violation, $250 to $750 fine.
* * *
(11) 489.129(1)(m): Misconduct by failure to reasonably honor warranty. First violation, $250 to $750 fine; repeat violation, $500 to $1500 fine and one year suspension.
* * *
489.129(1)(e): Aiding and abetting evasion of Ch. 489. First violation, $500 to
$1500 fine; repeat violation, $500 to $3000 fine and one year suspension.
489.129(1)(f): Combining and conspiring in evasion of Ch. 489. First violation, $1000 to $3000 fine; repeat
violation, $1000 to $5000 fine and 18 months' suspension.
* * *
(18) 455.227(1)(a): fraud, deceit, misleading, or untrue representations. First violation, $500 to $1500 fine; repeat violation, revocation.
489.129(1)(m): Gross negligence, incompetence, and/or misconduct, fraud or deceit.
Causing no monetary or other harm to licensee's customer, and no physical harm to any person. First violation, $250 to $750 fine; repeat violation, $1000 to $1500 fine and 3 to 9 month suspension.
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.
489.129(1)(d): Violation of state or local laws. First violation, $250 to $750 fine. Repeat violation, $1000 to $3000 fine.
The absence of any violation from
this Chapter shall be viewed as an oversight, and shall not be construed as an indication that no penalty is to be assessed.
* * *
21E-17.002 Aggravating and Mitigating Circumstances. Circumstances which may be considered for the purposes 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 licensee.
The length of time the licensee has practiced.
The actual damage, physical or otherwise, to the licensee's customer.
The deterrent effect of the penalty imposed.
The effect of the penalty upon the licensee's livelihood.
Any efforts at rehabilitation.
Any other mitigating or aggravating circumstances.
* * *
21E-17.003 Repeat Violations.
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 (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 actions are of the same or different subsections of the disciplinary statutes.
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.
* * *
21E-17.005 Penalties Cumulative and Consecutive. Where several of the above violations shall occur in one or several cases being considered together, the penalties shall normally be cumulative and consecutive.
* * *
21E-17.007 Probation. Probation may also
be assessed in any case where, in the board's opinion, it is advisable for the public welfare, in order to assure that the licensee operates properly and within the law in the future, to require the licensee to report to the Board periodically, or to otherwise serve a probationary period.
Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Construction Industry Licensing Board find the
Respondent guilty of violating Section 489.105(4), 489.119, and 489.129(1)(d),
(e), (g), (j) and (m) , Florida Statutes, and that, as punishment, impose on the Respondent a fine of $5000, suspend the Respondent's license for three years and place the Respondent on probation for one year after termination of the suspension conditioned on completion of continuing education designated by the Board and on such other terms that the Board deems appropriate.
DONE and ENTERED this 20th day of April, 1989 in Tallahassee, Leon County, 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 20th day of April, 1989.
APPENDIX TO RECOMMENDED ORDER
CASE NOS. 88-5197, 88-5198 and 88-5199
To comply with Section 120.59(2), Florida Statutes (1987), the following rulings are made on the parties' proposed findings of fact:
Petitioner's Proposed Findings of Fact.
1.-4. Accepted and incorporated.
Sixth sentence, rejected because it was additional sealant, not fiberglass, that was put on the rental unit. Otherwise, accepted and incorporated.
Accepted and incorporated.
Proposed findings regarding the "high ridge" rejected as not supported by the evidence but otherwise accepted and incorporated.
Rejected that the owners held back $1,400 (they held back $900) but otherwise accepted and incorporated.
Proposed findings regarding the owners' telephone calls to the inspection department and the inspection results rejected as not supported by the evidence. First and penultimate sentences, accepted and incorporated.
10.-11. Accepted and incorporated.
12. Subordinate and unnecessary. 13.-28. Accepted and incorporated.
29. Accepted but subordinate and unnecessary. 30.-33. Accepted and incorporated.
34. Proposed findings that the permit was pulled after the work for purposes of correcting the work rejected as not proven by the evidence. Otherwise, accepted and incorporated.
35.-45. Accepted and incorporated.
The estimate was for plaster, not "plastic." Otherwise, accepted and incorporated.
Accepted and incorporated.
Second sentence, rejected as not supported by the evidence. Otherwise, accepted and incorporated.
Accepted and incorporated.
Respondent's Proposed Findings of Fact. (These rulings relate to the unnumbered paragraphs in the Respondent's March 23, 1989, letter, starting with
the third paragraph. They are assigned consecutive paragraph numbers for purposes of these rulings.)
Accepted and incorporated.
First sentence, accepted and incorporated; second sentence, rejected as contrary to facts found.
Accepted but subordinate to facts found and unnecessary.
First and last sentences, accepted and incorporated. Second and third sentences, rejected as contrary to facts found.
First sentence, accepted and incorporated. Second sentence, rejected as unclear.
Accepted. First sentence, incorporated; second sentence unnecessary.
First and third sentences, rejected as contrary to the weight of the evidence; second sentence, accepted but unnecessary.
First sentence, accepted and incorporated (although the unlicensed companies using the Respondent's name also did work and assumed responsibility for the jobs over which the Respondent exercised no control at all.) Second sentence, rejected as contrary to facts found.
COPIES FURNISHED:
Jack M. Larkin, Esquire 806 Jackson Street
Tampa, Florida 33602
Richard Lee Melvin
12737 North Florida Avenue Tampa, Florida 33612
Fred Seely, Executive Director Florida Construction Industry Licensing Board
111 East Coastline Drive, Suite 504 Jacksonville, Florida 32202
Kenneth E. Easley, Esquire General Counsel
Department of Professional Regulation
130 North Monroe Street Tallahassee, Florida 32399-0750
| Issue Date | Proceedings |
|---|---|
| Apr. 20, 1989 | Recommended Order (hearing held , 2013). CASE CLOSED. |
| Issue Date | Document | Summary |
|---|---|---|
| Nov. 06, 1989 | Agency Final Order | |
| Apr. 20, 1989 | Recommended Order | Respondent allowed unlicensed contaractor to use his license and willfully violated local law by not getting inspections. Respondent is neglegent. |
CONSTRUCTION INDUSTRY LICENSING BOARD vs. TROY GRIFFIN, 88-005197 (1988)
CONSTRUCTION INDUSTRY LICENSING BOARD vs. REX ALANIZ, 88-005197 (1988)
CONSTRUCTION INDUSTRY LICENSING BOARD vs. GEORGE F. GARRARD, 88-005197 (1988)
CONSTRUCTION INDUSTRY LICENSING BOARD vs IRVIN DINGLE, 88-005197 (1988)
CONSTRUCTION INDUSTRY LICENSING BOARD vs. PHILLIP SHEFFIELD, 88-005197 (1988)
