Judges: CLAUDE B. ARRINGTON
Agency: Department of Business and Professional Regulation
Latest Update: May 22, 1989
Summary: Roofing contractor disciplined for misconduct in failing to honor a warranty.
89-0732STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
DEPARTMENT OF PROFESSIONAL ) REGULATION, CONSTRUCTION ) INDUSTRY LICENSING BOARD, )
)
Petitioner, )
vs. ) CASE NO. 89-0732
)
JACK WORLEY, )
)
Respondent. )
)
RECOMMENDED ORDER
Pursuant to notice, a formal hearing was conducted in this case on April 6, 1989, at Fort Lauderdale, Florida, before Claude B. Arrington, a duly designated Hearing Officer of the Division of Administrative Hearings. Appearances for the parties at the hearing were as follows:
For Petitioner: Elizabeth Alsobrook, Esquire
Department of Professional Regulation
1940 North Monroe Street, Suite 60
Tallahassee, Florida 32399-0729
For Respondent: Jack Worley, pro se
731 N.E. 59th Court
Fort Lauderdale, Florida 33334
This is a license discipline case in which the Petitioner seeks to take disciplinary action against Respondent on the basis that Respondent gave a guarantee to a customer and thereafter failed to reasonably honor said guarantee in violation of Section 489.129(1)(m), (j), Florida Statutes.
At the final hearing, the Petitioner appeared through counsel and offered evidence in support of the allegations in the Second Amended Administrative Complaint. Petitioner's evidence consisted of the testimony of four witnesses, one of whom was accepted as an expert witness as to general construction contracting practices in Florida, and six documentary exhibits, all of which were accepted into evidence. Respondent testified on his own behalf and called one additional witness. Respondent produced no documentary evidence. Following the hearing, the Petitioner filed a proposed recommended order containing proposed findings of fact and conclusions of law. The Respondent has not filed any post-hearing documents. All findings of fact proposed by the Petitioner are addressed in the appendix attached to this recommended order.
FINDINGS OF FACT
Based on the evidence received at the final hearing, the following findings of fact are made.
At all times material to this case the Respondent, Jack Worley was licensed as a certified roofing contractor in the State of Florida, holding license number CC C026452.
From October 1983 through August of 1986 Respondent, Jack Worley, served as the sole qualifying agent for a company known as Aqua Shield Roofing, Inc.(Aqua Shield).
On November 22, 1983, Aqua Shield contracted with Mr. Reno Bellucci to reroof the house owned by Mr. Bellucci and his wife, Edith Bellucci, located at 3901 N.E. 26th Avenue, Lighthouse Point, Florida.
Mr. and Mrs. Bellucci paid Aqua Shield the sum of $4,000.00 for the
job.
Aqua Shield applied a waterproofing sealant to Mr. and Mrs. Bellucci's
partly flat and partly pitched roof. The work was done between November 22, 1983 and December 3, 1983.
The contract signed by Mr. Bellucci and Aqua Shield on November 22, 1983, stated that Aqua Shield would "supply five year unconditional warranty against water penetration on completion/collection."
On December 5, 1983, Aqua Shield issued a five-year warranty covering the roofing work done on the Bellucci house. That warranty contained the following provision:
This warranty shall not apply if in our judgment the roof has been subject to abuse or misuse or if damage results from causes other than quality of materials and labor.
Several months after Aqua Shield completed its work, the roof in the Bellucci residence started leaking.
In response to repeated calls from Mr. and Mrs. Bellucci, Aqua Shield employees returned on two occasions to reseal the roof and on another occasion to replace the flashing on the roof. The additional work done by Aqua Shield did not stop the leaks. Mr. and Mrs. Bellucci were thereafter unable to contact Aqua Shield despite repeated attempts to do so because Aqua Shield had closed its office and had had its telephone disconnected. Respondent did not meet with Mr. and Mrs. Bellucci until after they had complained to Petitioner.
In November 1988, the Belluccis had the roof on their residence replaced by Gable Roofing at a cost of $10,625.00.
Between the time the leaks first started and the time Gable Roofing replaced the roof on their residence, Mr. and Mrs. Bellucci had installed a fireplace with the chimney extending through the roof and two skylights. These improvements were properly installed and did not void the Aqua Shield warranty.
The leaks began prior to the Belluccis having any additional work done on the roof. These initial leaks, which Aqua Shield failed to repair, were caused by Aqua Shield's sealing over rotten wood.
The Belluccis sustained extensive damages to the interior of their residence because of the leaks and because of Aqua Shield's failure to honor its guarantee.
Respondent has been disciplined by Petitioner on two previous occasions. In Case 79765, Respondent was sent a letter of guidance for not having identification on his trucks. In Case 85101, Respondent was sent a letter of guidance for failing to honor a guarantee he had issued.
CONCLUSIONS OF LAW
Based on the forgoing findings of fact and the applicable decisional law, statutes, and rules, the following conclusions of law are made:
The Division of Administrative Hearings has jurisdiction over the subject matter of and parties to this proceeding. Section 120.57(1), Florida Statutes.
Section 489.129(1), Florida Statutes, authorizes the Construction Industry Licensing Board to take disciplinary action against a contractor when the contractor or the business entity for which the contractor is a qualifying agent is found guilty of various specified acts, including the following:
(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 Petitioner has the burden of proving by clear and convincing evidence that the Respondent committed the acts alleged in the Second Amended Complaint. See Ferris v. Turlington, 510 So.2d 292 (Fla. 1987)
Petitioner has proved by clear and convincing evidence that Aqua Shield failed to honor the warranty it had given Mr. and Mrs. Bellucci and that its failure to honor the warranty was without justification. Respondent, as the qualifying agent of Aqua Shield, is held responsible for its misconduct as provided by Section 489.129(1)(m), Florida Statutes. There was no separate factual basis upon which to find a violation of Section 489.129(1)(j), Florida Statutes.
Rule 21E-17.001, Florida Administrative Code, sets forth the normal penalty guidelines and, pertinent to this case, provides:
(19) 489.129(1) (m): Gross negligence, incompetence, and or misconduct, fraud or deceit.
* * *
(b) Causing monetary or other harm to licensee's customer, or physical harm to any person. First violation $500 to $1500 fine; repeat violation, $1,000 to $5,000 fine and suspension or revocation.
Rule 21E-17.003 Florida Administrative Code, provides in part:
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 chronological relationship of the acts underlying the various disciplinary actions, and (ii) regardless of whether the violation in the present and prior disciplinary actions are of the same or different subsections of the disciplinary statutes.
Respondent's misconduct is, within the meaning of the applicable guidelines, a repeat violation which caused monetary damage to his customer.
RECOMMENDATION
Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that a final order be entered finding Respondent guilty of
having violated Section 489.129(1)(m), Florida Statutes, and which imposes an administrative fine of $5,000.00 against Respondent and suspends his license for thirty days.
DONE and RECOMMENDED this 22nd day of May, 1989, in Tallahassee, Florida.
CLAUDE B. ARRINGTON
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 day of May, 1989.
APPENDIX
Paragraphs 1, 3, 4, 5, 6, 7, 9, 10, 11, 12, 14, 15,17,18,19,25 and 26 of
Petitioner's Proposed Recommended Order are adopted in substance, insofar as material.
Paragraph 2 and 16 of Petitioner's Proposed Recommended Order are immaterial.
Paragraph 8, 13, 20, 21, 22, 23, 24, 27, 28, and 29 are subordinate.
COPIES FURNISHED:
Elizabeth Alsobrook, Esquire Department of Professional
Regulation
1940 North Monroe Street Suite 60
Tallahassee, FL 32399-0729
Jack Worley
731 N.E. 59th Court
Fort Lauderdale, FL 33334
Kenneth E Easley, General Counsel Department of Professional
Regulation
1940 North Monroe Street Suite 60
Tallahassee, FL 32399-0729
Fred Seely, Executive Director Construction Industry Licensing Board Department of Professional Regulation Post Office Box 2
Jacksonville, FL 32201
=================================================================
AGENCY FINAL ORDER
=================================================================
STATE OF FLORIDA DEPARTMENT OF PROFESSIONAL REGULATION CONSTRUCTION INDUSTRY LICENSING BOARD
DEPARTMENT OF PROFESSIONAL REGULATION,
Petitioner,
vs CASE NO.: 84140
DOAH CASE NO.: 89-0732
JACK W. WORLEY, II, LICENSE NO.: CC C026452,
Respondent.
/
FINAL ORDER
THIS MATTER came before the Construction Industry Licensing Board pursuant to Section 120.57(1)(b)(9), Florida Statutes, on July 14, 1989, in Fort Lauderdale, 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 present and represented by counsel at the Board meeting. Respondent's Motion to Reopen is DENIED for reasons delineated in response to said motion at the aforementioned meeting the record of which I hereby approved and adopted and fully incorporated herein by reference.
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, the Board makes the following:
FINDINGS OF FACT
The hearing officer's findings of fact are hereby approved and adopted in toto.
There is competent, substantial evidence to support the hearing officer's findings of fact.
CONCLUSIONS OF LAW
The Board has jurisdiction of this matter pursuant to the provisions of Section 120.57(1), and Chapter 489, Florida Statutes.
The hearing officer's conclusions of law are hereby approved and adopted in toto.
Respondent is guilty of violating Section 489.129(1)(j), and (m), Florida Statutes.
The penalty recommended by the Hearing Officer is hereby rejected in part.
For reasons stated on the record, which is hereby adopted and incorporated into this Order, the penalty and fine are reduced.
There is competent, substantial evidence to support the Board's findings and conclusions.
WHEREFORE, IT IS HEREBY ORDERED AND ADJUDGED:
Respondent shall pay to the Construction Industry Licensing Board an administrative fine of two thousand dollars ($2,000.00). Said find shall be paid within ninety (90) days.
Respondent's licensure shall be an probation from the date of the final action herein, for a period of two (2) years.
Respondent shall make four (4), probation appearances before the Board within the two (2) year probationary period in the months of January, 1990, July, 1990, January, 1991, and July, 1991. At said appearances, Respondent shall stand for questions from the Board as to his firm's operations and finances, and shall supply the Board with such financial reports and other papers as the Board may require.
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 10th day of August, 1989.
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
Jack W. Worley II M. Daniel Hughes
731 N.E. 59th Court Bayview Bldg.
Ft. Lauderdale, Florida 1040 Bayview Drive
33334 Ft. Lauderdale, Florida 33304
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 16th day of August 1989.
F I L E D
Department of Professional Regulation Florida Construction Industry Licensing Board
Board Clerk
Clerk Date: August 16, 1989
Docket for Case No: 89-000732
Orders for Case No: 89-000732
