STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

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

)

Petitioner, )

)

vs. ) CASE NO. 89-0183

)

BRUCE D. GAYTON, )

)

Respondent. )

)

RECOMMENDED ORDER

A hearing was held in this case in Clearwater, Florida, on July 11, 1989, before Arnold H. Pollock, Hearing Officer.

APPEARANCES

For Petitioner: Elizabeth Alsobrook, Esquire

Department of Professional Regulation 1940 North Monroe Street

Tallahassee, Florida 32399-0750

For Respondent: was not present and was not represented.

STATEMENT OF THE ISSUE

The issue for consideration was whether Respondent's license as a registered roofing contractor should be disciplined because of the misconduct alleged in the Administrative Complaint filed herein.

PRELIMINARY STATEMENT

On May 3, 1988, Douglas A. Shropshire, for Tom Gallagher, then Secretary of the Department of Professional Regulation filed an Administrative Complaint in this case alleging the Respondent had violated several provisions of Chapter 489, Florida Statutes, dealing with the construction contracting business. On or about November 22, 1988, the Respondent requested a formal hearing but neglected to place his address or phone number on the Election of Rights form he used. Thereafter, on January 10, 1989 the matter was forwarded to the Division of Administrative Hearings for the appointment of a Hearing Officer and on January 23, 1989, the undersigned set the case for hearing on April 5, 1989 at which time it was held as scheduled.

Respondent was not present at the hearing nor was he represented by counsel. A notice of hearing in this case was sent by U.S. Mail to the Respondent at the address furnished by the Department of Professional Regulation, 20116 Gulf Blvd., Indian Shores, Florida. However, on or about

February 18, 1989, the envelope containing the notice was returned to the Division by the Postal Service with a stamp thereon indicating either "insufficient address" or "moved, left no address."

Counsel for Petitioner indicated that the licensing information effective August, 1985, reflected Respondent's address as 2009 6th Place, S.W. in Largo. On July 1, 1987, however, Respondent's license was placed in delinquent status for non-renewal until April, 1988, when it was reinstated with Respondent qualifying Roofing Enterprises, 15010 113th Avenue, No 32, Largo, as the place of residence. That latter address was not used, however, by the undersigned on the Notice of Hearing, since it was not made known to him until the day of the hearing. In fact, that information and address was not ascertained by petitioner's counsel until several days prior to the hearing. The Report of Investigation revealed that the 6th Place address initially listed on the licensing information was changed and inquiry of the Postal Service indicated Respondent had taken a new address of 2551 Ulmerton Rd. When the Department's investigator went to that address to locate the Respondent, it was determined that the premises were vacated. The Administrative Complaint herein was, nonetheless, served on Respondent at his home, 20116 Gulf Blvd., the address to which the Notice of Hearing was sent, on November 9, 1988. Since extensive effort had been made to locate Respondent and since the last known home address was utilized for service of the Administrative Complaint, the hearing was held in the absence of the Respondent. A copy of this Recommended Order, however, will be sent to the Respondent at the address listed on the licensing information, 15010 113th Avenue, Largo.

At the April 5, 1989 hearing, Petitioner presented the testimony of John M. Mack, owner of the property in question; Edward K. Archer, an employee of the Respondent at the time in issue; Michael J. Wilkins, building inspector for the City of Clearwater; Victor C. Chodora, building official for the City; and Bernard S. Verse, a certified general contractor, consultant and expert in the field of construction. Petitioner introduced Petitioner's Exhibits 1 through 4.

A transcript was provided. Though counsel for petitioner requested and received several extensions of the deadline for filing Proposed Findings of Fact, none were initially filed.

Due to a failure of service of the Notice of Hearing on the Respondent, the Hearing Officer determined that a rehearing, after proper notice, was necessary, and on June 16, 1989, the undersigned ordered a rehearing in this case which was mailed to Respondent at 15010 113th Avenue, No. 32, Largo, Florida 34644-4305.

Respondent received that Order which notified him of the time, date, and location of the rehearing. No request for continuance was submitted by the Respondent to the Hearing Officer or counsel for the Petitioner. However, upon arrival at the hearing site, the Hearing Officer was presented with a note from the secretary to the City Manager of the City of Clearwater, whose address appeared on the Order Setting Rehearing, which indicated that the Respondent had, that very morning, contacted her telephonically with a request that she relate to the Hearing Officer that he, Respondent, was in Atlanta, Georgia, had undergone surgery, and would not return to Florida until August 1, 1989. He indicated that the address to which the Order Setting Hearing had been sent was the correct one.

At the direction of the Hearing Officer, counsel for the Petitioner twice attempted to contact the Respondent at the telephone number furnished by him but received no answer either time. Consequently, the Hearing Officer concluded

that Respondent's message through the City Manager's secretary was a Motion for Continuance, but since it was not filed in a timely manner and was resisted by the Petitioner, denied it.

At the July 11, 1989 hearing, Petitioner submitted the transcript of proceedings of the July 5, 1989 hearing which was received into evidence by the Hearing officer after it was determined that none of the parties who testified at the July 5, 1989 hearing desired to change their testimony. The transcript was introduced as Petitioner's Exhibit 5. Petitioner's Exhibits 1 through 4 had been introduced at the previous hearing and were admitted again. Petitioner's Exhibits 6 through 8 were also admitted.

Counsel for Petitioner filed a Proposed Recommended Order which includes Proposed Findings of Fact. These have been accepted and are incorporated herein.

FINDINGS OF FACT

1. At all times pertinent to the issues contained herein, Respondent, Bruce D. Gayton, was licensed as a roofing contractor in Florida under license number RC0030867, but at the time of the misconduct alleged herein, the license was delinquent and invalid. Respondent's license was placed on delinquent status for non-renewal when it expired on June 30, 1987 and was considered invalid until reinstated in April, 1988. The Petitioner, Construction Industry Licensing Board, (Board), is the state agency responsible for the licensing of contractors in this state.

   
   

2. On August 27, 1987, John M. Mack and his wife contracted with Respondent, doing business as Roofing Enterprises, to replace the roof on their

   70 year old house in Clearwater. The contract called for Respondent to remove the old roof, replace all rotten wood, and install fiberglass shingles as well as all other actions part thereof, including cleanup.

   
   

3. For this, the Macks agreed to pay Respondent $2,930.00 to be paid one- third at commencement, one-third when dried in, and the balance due upon completion. The term "dried in" means to cover the roof base with felt and secure it so as to prevent moisture incursion. This constitutes the subsurface for the final roof surface. The contract did not provide a completion date. Respondent guaranteed his work for five years.

   
   

4. Respondent started work on September 9, 1989 and was paid the first

   $1,000.00 by check. He started tearing off the existing roof and five days later, when only one quarter of the existing roof had been removed, requested the second installment of the contract price. Mr. Mack was out of town at the time, but Mrs. Mack gave him a second $1,000.00 check. At that time, far less than one third of the project had been completed.

   
   

5. After that second payment was made, Respondent did "minimal work" on the project. He would appear at the job only intermittently and when he did, would leave after only a short while. When Mr. Mack asked about this, Respondent indicated it was too hot to work after 11:00 in the morning. He also complained that because the sub-roof was made of hard, old white pine, it was very difficult to remove the old nails.

   
   

6. For several days in early November, 1987, Respondent did not show up for work and Mack's efforts to reach him by phone were unsuccessful. He finally

   filed a complaint with both the Better Business Bureau and the Department of Professional Regulation.

   
   

7. Finally, on November 14, 1987, Respondent came to the work site and left after two hours indicating he had a meeting with other contractors on other jobs. The next day, when Respondent did not show up, Mr. Mack went to his house whereupon Respondent stated he had spent most of the $2,000.00 the Macks had given him on other projects and to pay his workers and did not have enough funds to finish the job. Mr. Archer, the only employee to work on the Mack property has not been paid at all for his work. Nonetheless, Mr. Mack instructed Respondent to do what he could with what was left and when that was gone, he would pay the balance.

   
   

8. Though Respondent had previously indicated to Mr. Mack that he had secured all required permits, the day after the above discussion, he stated he had not done so and left the job site to get it without doing any work that day. Over the next 11 days, Respondent spent a total of 20 hours on the job.

   
   

9. On November 17, 1987 it rained and because the roof was not secure, water leaked into the house. The following day, Respondent did not arrive for work until 10:00 AM.

   
   

10. On November 19, 1987, when Mr. Mack called the lumber yard from which Respondent had ordered the shingles, he was told they were scheduled for delivery COD and were on their way. When they arrived, Mr. Mack refused to accept them and pay for them because he had already paid Respondent $2,000. Respondent, when told of this development, agreed to borrow the money for them from his brother but was unable to do so, and in order to get the job finally done, Mr. Mack agreed to pay approximately $200.00 for them. They were ultimately delivered.

    
    

11. The next day, Respondent telephoned Mr. Mack and said he was coming to the site and would stay until the job was done. However, he did not get there until after 10 and left at 3:30 PM with the job incomplete. At 8:00 AM the following morning, Respondent again called Mr. Mack and reported he did not have enough money for the required flashings. He indicated he would come to work and finish up the shingling, but did not show up at all that day.

    
    

12. On the day after, Respondent came with his wife who worked with him for a short while. On this occasion, Mack gave Respondent some more money for supplies, but Respondent left again before the job was complete. Respondent neither showed up for work nor called on both the next two days, but on the following day, November 25, 1987, he finally finished up the job except for the gravel roof on the rear house and the front part of the main house. Because the Macks had a tenant in the rear house who they did not want disturbed, they did not permit Respondent to work there, but he did finally finish up the front of the main house roof and the work that was accomplished was done satisfactorily.

    
    

13. There was, however, an unused chimney on the main house which Respondent should have removed and roofed over. Instead, he improperly attempted to roof around it and since he was unable to make the area water tight, it resulted in severe leakage into the house which caused damage to several ceilings and some furniture.

    
    

14. Throughout the entire course of the work, Respondent applied improper pressure to the Macks. He repeatedly threatened to file for bankruptcy and not complete the work, prompting the Macks to pay him before contractually called

    for. At the time for final payment, when Mr. Mack indicated he wanted to have the job checked before making that last payment, Respondent became angry and walked off. He has not been seen or heard from since. As a result of Respondent's failure to properly manage his funds and accomplish the job in a timely and professional manner, the Macks have sustained substantial damage to their property and have had to expend additional funds to get the work done properly.

    
    

15. Respondent should have identified the unused chimney at the time he bid for the job and provided for its removal. If this would cost more, he should have so indicated. His failure to identify the problem and correct it constitutes negligence since it is impossible to properly roof around such an obstruction without leaks.

    
    

16. Based on the information available to him, Mr. Verse, the Department's expert, concluded Respondent was guilty of gross negligence because:

    
    

    1. He was required to get a permit for this project and failed to do so,

       
       

    2. He was required to request inspections of the project as it progressed and failed to do so,

       
       

    3. He took an unreasonable amount of time to complete the job, (roofs are usually replaced in an expedient manner because re-roofing generates exposure of the house and contents to weather conditions),

       
       

    4. He failed to properly place the felt and thereafter cover it with the final coat in a timely manner (qualified roofers recognize that felt is insufficient roofing to prevent leaking),

       
       

    5. He diverted funds from this project to others for which they were not intended,

       
       

    6. He failed to properly supervise his employees,

       
       

    7. He did not complete the work called for under the contract,

       
       

    8. He failed to honor his warranty, and

       
       

    9. He failed to properly remove the old chimney as a part of the re-roofing process.

       
       

17. With the exception of the failure to complete the job which was caused by Mr. Mack's refusal to allow Respondent to complete the roofing project on the gravel roof, Respondent's actions as outlined herein constituted gross negligence. In addition, he violated existing local law by failing to get a

    permit and have the required inspections made; he failed to perform in a timely manner; he diverted funds; he abandoned the job without it being completed; and he failed to honor his warranty.

    
    

    CONCLUSIONS OF LAW

    
    

18. The Division of Administrative Hearings has jurisdiction over the parties and subject matter in this case. Section 120.57(1), Florida Statutes.

    
    

19. In the Administrative Complaint filed herein, Petitioner seeks to discipline Respondent's license because of several alleged incidents of misconduct, all of which, if proven, constitute violations of Chapter 489, Florida Statutes.

    
    

20. The burden of proof in this case is on the Petitioner. Board, Balino

    v. Department of Health and Rehabilitative Services, 348 So.2d 349 (Fla. 1st DCA 1977). Since discipline of a professional license is in the nature of a penal action, Petitioner must establish Respondent's guilt of each offense alleged by clear and convincing evidence, Ferris v. Turlington, 510 So.2d 292 (Fla. 1987).

    
    

21. Section 489.129(1), Florida Statutes, authorizes the Board to discipline the registration of a contractor if he is found guilty of, inter alia:

    
    

    (d) Willful or deliberate disregard and violation of the applicable building codes or laws of the state or of any municipalities or counties thereof.

    
    

    (h) Financial mismanagement or misconduct in the practice of contracting that causes financial harm to a customer.

    
    

    1. Failure in any material respect to comply with the provisions of this act.

       
       

    2. Abandonment of a construction project in which the contractor is engaged or under contract as a contractor ....

    
    

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

    
    

22. As qualifying agent for his company, Respondent bears the responsibility for insuring the work done for the Macks here was done properly, in a timely fashion, and in a manner consistent with the contract. The evidence clearly shows he failed to live up to this responsibility and is guilty of a violation of Section 489.119(j), Florida Statutes.

    
    

23. Further, his failure to get the required permit and arrange for the required inspections is a violation of Section 489.129(j); his failure to properly remove and roof over the unused chimney is gross negligence which resulted in harm to his customer in violation of Sections 489.129(h) and (m); and his diversion of funds resulted in harm to the Macks and is a violation of Section 489.129(h). He is not guilty of abandoning the job because his failure

    to complete the gravel roof was the direct result of the Macks' refusal of permission for him to continue, regardless of the fact that may well have been caused by his performance.

    
    

24. Respondent has shown a total disregard for the interests of his clients here and has taken an approach to his professional standards.

    
    

25. Petitioner seeks to revoke Respondent's license as a registered roofing contractor and to impose an Administrative fine of $5,000. Absent a showing of prior disciplinary action, such a severe penalty is excessive. There is no showing that the misconduct displayed here by Respondent was repeated with other clients. Consequently, a penalty less than that recommended by counsel appears appropriate.

RECOMMENDATION

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

RECOMMENDED that Respondent, Bruce D. Gayton's, license as a registered roofing contractor be suspended for three years under such provisions for reinstatement as may be deemed appropriate by the Board, and that he be fined

$1,000.00.

RECOMMENDED this 11th day of August, 1989 at Tallahassee, Florida.

ARNOLD H. POLLOCK

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 11th day of August, 1989.

COPIES FURNISHED:

Elizabeth R. Alsobrook, Esquire Department of Professional

Regulation

1940 North Monroe Street Tallahassee, Florida 32399-0792

Bruce D. Gayton

15010 113th Avenue #32

Largo, Florida 34644-4305

Fred Seely Executive Director

Construction Industry Licensing Board

Post Office Box 2 Jacksonville, Florida 32201

Kenneth A. Easley, Esquire General Counsel

DPR

1940 North Monroe Street Tallahassee, Florida 32399-0792

=================================================================

AGENCY FINAL ORDER

=================================================================

STATE OF FLORIDA DEPARTMENT OF PROFESSIONAL REGULATION CONSTRUCTION INDUSTRY LICENSING BOARD

DEPARTMENT OF PROFESSIONAL REGULATION,

Petitioner,

vs CASE NO.: 91395

DOAH CASE NO.: 89-0183

BRUCE D. GAYTON,

LICENSE NO.: RC 0030867,

Respondent.

/

FINAL ORDER

THIS MATTER came before the Construction Industry Licensing Board pursuant to Section 120.57(1)(b)(9), Florida Statutes, on October 12, 1989, in Tampa, Florida, for consideration of the Recommended Order (a copy of which is attached, hereto and incorporated herein by reference). The Petitioner was represented by Ray Shope. The Respondent was neither present nor represented by counsel at the Board meeting.

Upon consideration of the hearing officer's Recommended Order, and the arguments of the parties and after a review of the complete record in this matter, including the exceptions filed, the Board makes the following:

FINDINGS OF FACT

1. The hearing officer's findings of fact are hereby approved and adopted in toto.

   
   

2. There is competent, substantial evidence to support the hearing officer's findings of fact.

CONCLUSIONS OF LAW

1. The Board has jurisdiction of this matter pursuant to the provisions of Section 120.57(1), and Chapter 489, Florida Statutes.

   
   

2. The hearing officer's conclusions of law are hereby approved and adopted in toto.

   
   

3. Respondent is guilty of violating Section 489.129(1)(d), (h), (j) , (m), Florida Statutes.

   
   

4. The penalty recommended by the Hearing Officer is hereby rejected for those reasons stated on the record and in the Petitioner's exceptions to the Hearing officer's recommended penalty.

   
   

5. Petitioner's Exceptions to the hearing officer's recommended penalty is hereby approved and adopted and incorporated herein by reference.

   
   

6. There is competent, substantial evidence to support the Board's findings and conclusions.

WHEREFORE, IT IS HEREBY ORDERED AND ADJUDGED:

Respondent's licensure to practice contracting is hereby REVOKED. Respondent is hereby ordered to pay to the Construction Industry Licensing Board an administrative fine of five thousand dollars ($5,000.00) within thirty (30) days.

Pursuant to Section 120.59, Florida Statutes, the Parties are hereby notified that they may appeal this Final Order by filing one copy of a Notice of Appeal with the Clerk of the Department of Professional Regulation, Northwood Centre, 1940 N. Monroe Street, Tallahassee, Florida 32301, and by filing the filing fee and one copy of the Notice of Appeal with the District Court of Appeal within thirty (30) days of the effective date of this Order

This Order shall become effective upon filing with the clerk of the Department of Professional Regulation.

DONE AND ORDERED this 19th day of February, 1990.

MIKE BLANKENSHIP, CHAIRMAN

Construction Industry Licensing Board

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a true and correct copy of the foregoing Final Order has been provided by U.S. Mail to

and by hand delivery/United States Mail to the Board Clerk, Department of Professional Regulation and its Counsel, Northwood Centre, 1940 North Monroe Street, Tallahassee, Florida 32399-0792, on or before 5:00 p.m., this 19th day of February, 1990.

F I L E D

Department of Professional Regulation Florida Construction Industry Licensing Board

BOARD CLERK

Clerk Date: February 19, 1990

Docket for Case No: 89-000183

Orders for Case No: 89-000183