STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

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

)

Petitioner, )

)

vs. ) CASE NO. 89-0735

)

JOSEPH H. RAYL, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, Don W. Davis, held a formal hearing in the above- styled case on April 12, 1989, in Tampa, Florida.

APPEARANCES

For Petitioner: Elizabeth R. Alsobrook, Esquire

Department of Professional Regulation The Northwood Centre, Suite 60

1940 North Monroe Street Tallahassee, Florida 32399-0750

For Respondent: No Appearance

STATEMENT OF THE ISSUES

The issue for determination is whether Respondent, licensed as a registered roofing contractor, certified roofing contractor, and certified building contractor, committed various violations of Chapter 489, Florida Statutes, sufficient to justify the imposition of disciplinary sanctions against his licenses.

PRELIMINARY STATEMENT

On November 28, 1988, Petitioner issued an Administrative Complaint charging Respondent with the offenses of gross negligence, incompetence, misconduct, and deceit in connection with contracts for various roofing repairs between 1984 and 1987. The Administrative Complaint further alleged that Respondent had been previously disciplined for violations related to professional conduct.

Respondent requested a formal administrative hearing on the charges set forth in the Administrative Complaint. Subsequently, the matter was transferred to the Division Of Administrative Hearings to conduct a formal hearing pursuant to Section 120.57(1), Florida Statutes. Although originally scheduled to convene on March 28, 1989, the final hearing was continued until April 12, 1989,

when counsel for Petitioner properly requested a continuance and represented concurrence by Respondent's counsel to the motion.

At the hearing, Petitioner presented the testimony of eight witnesses and

26 evidentiary exhibits. While no appearance was made for Respondent at hearing and no evidence was presented on his behalf, a motion was filed by his counsel subsequent to the final hearing requesting a rehearing in the matter. The Motion for Rehearing recounted that confusion arising from relocation of Respondent counsel's office facilities resulted in the inadvertent failure of counsel to properly calendar the April 12th hearing date or appear at that hearing. The Motion for Rehearing was denied.

The transcript of the hearing was filed with the Division Of Administrative Hearings on June 9, 1989. Respondent did not timely file proposed findings of fact, and no proposed findings had been received at the time of the preparation of this recommended order. Proposed findings of fact submitted by Petitioner are addressed in the appendix to this recommended order.

FINDINGS OF FACT

1. Respondent is Joseph H. Rayl, holder, at all times pertinent to these proceedings, of registered roofing contractor license no. RC 0034055; certified roofing contractor license no. CC C035625; and certified building contractor license no. CB C033206. Petitioner previously disciplined Respondent's license RC 0034055 through the imposition of a $250 fine by order dated July 11, 1985; and Respondent's license CB C033206 by suspension of license for six months and imposition of a fine of $2,500. Petitioner also found probable cause for three cases in 1987 that were closed with letters of guidance to Respondent.

   
   

2. Petitioner is the Department of Professional Regulation, Construction Industry Licensing Board, the state agency charged with the regulation of contractors in the State of Florida.

   
   

3. Respondent was the qualifying agent for Unique Construction, Inc., (Unique) at all times pertinent to these proceedings. Further, Respondent has been the qualifying agent for Superior Roofing & Construction Inc., (Superior) since February, 1988.

   
   

4. On June 19, 1984, Mary Lois Brining, owner of a day care center for children known as Town and Country Schools of Bradenton in Manatee County, Florida, entered into a contract with Respondent to reroof the day care center. Respondent's personnel arrived at the school and removed the roof. Heavy rainfall then caused extensive damage to the interior of the facility and Brining complained to Unique. A representative of the company assured her that the situation would be resolved. Brining later paid Unique $623 to paint the school's interior, in addition to the cost of the roof replacement. While Respondent was never present during the construction, his workmen finished the roofing project on June 26, 1984. When leaks to the roof developed after completion of the job, Brining advised Unique of the leakage on numerous occasions. No action was taken by Respondent or Unique in response to Brining's telephone calls about the roof's leakage. Water leakage also damaged the carpet in Brining's facility, which she replaced at a cost of $2,000. In 1988, Brining finally hired another roofing company to correct the roof leakage.

   
   

5. Helen M. Hayes, a resident of Gulfport, Florida, contracted with Unique to reroof the flat portion of the roof to her home on April 12, 1984, for a sum of $2,890. The job was finished on April 15, 1984. Two days later, the roof

   leaked. Hayes advised Unique and a representative came to the house and attempted to stop the leaks. After every rain, the roof leaked and Hayes would advise Unique. She never saw or spoke with Respondent. Finally, after 22 contacts with the company over a period of two and a half years, Hayes contacted local government building authorities. The building inspector for the City of Gulfport inspected the roof and told the company to replace it. Unique's workmen removed the roof in July, 1986, and left the house uncovered. That same day 10 inches of rain fell in the area of the residence, resulting in extensive damage to the home's interior and clothing which Hayes had stored in the home.

   Hayes called the police. The police called the building inspector who, in turn, called the roofing company. On July 28, 1986, Unique completed replacing the roof on Hayes' house. That new roof still leaks, the floor to the house is cracked from the leakage, the carpet has been saturated with water, plaster from the ceiling is falling to the floor, and there are water stains on the ceiling and walls throughout the residence.

   
   

6. The proof further establishes that the City of Gulfport, located in Pinellas County, Florida, retained a private contractor to conduct an inspection of Hayes' roofing job in July of 1986. That inspection established that the roof should be replaced with a roof complying with building code requirements. Notably, while Unique obtained permits for the job, no final inspection of the project was ever obtained by Respondent's company in accordance with the Southern Building Code adopted as an ordinance by the City of Gulfport.

   
   

7. James Oliver Prince is a resident of Lake Hthchineha, a settlement located in Polk County, Florida. He has never met Respondent. Prince entered into a contract with Unique in September of 1985. The reroofing job was completed on or about September 26, 1985. Leaks developed with the onset of the first rain after the completion of the job. Prince notified Unique and a representative came out to the residence to attempt to repair the roof and stop the leaks. This procedure continued on numerous occasions until November of 1987 when Prince attempted to contact Unique regarding the roof's leakage only to be informed that the telephone had been disconnected. Prince tried to locate Unique at the various offices listed on his contract, but received no answer. Eventually, due to the seriousness of the leaks and his inability to contact Unique, Prince hired a carpenter and replaced the roof at a cost of approximately $6,000.

   
   

8. As established by testimony of Charles Fant, fire chief and building official for the City of Treasure Island, Florida, Unique obtained a construction permit for a reroofing job for the home of Vincent Ferraro located at 62 North Dolphin Drive in that city. The city has adopted the Southern Building Code as a city ordinance. However, the company never obtained the required final inspection for that job as required by the building code.

   
   

9. On August 13, 1986, Carl and Ludie Buice of Bellview, Florida entered into a contract with Unique for a reroofing job on their home. Carl Buice passed away in November of 1986 Later, their son assisted Ms. Buice when leaks developed in the roof by attempting to contact the roofing company. The son, Alfred Buice, was unable to contact Unique. He then contacted the local offices of the Better Business Bureau; thereafter a representative of Superior, Respondent's successor company to Unique, came to the Buice residence on or about May 25, 1988, and gave Alfred Buice a check for $200 in connection with money previously spent by Buice to repair leaks to the roof. Even after repairs, the roof continued to leak to the point that it began to cave in around the roof's edges. Eventually, Alfred Buice had his mother's residence reroofed by another contractor on March 21, 1989, for $5,800.

10. Testimony of Petitioner's expert witness establishes that Respondent was grossly negligent in meeting his qualifying agent responsibilities to supervise financial activities and construction practices of Unique. Further, Respondent's subordinates, who actually carried out roofing activities, performed those tasks incompetently. Respondent failed to comply with existing construction industry practices to inspect jobs where successive complaints were lodged by customers.

    
    

    CONCLUSIONS OF LAW

    
    

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

    
    

12. Section 489.129(1), Florida Statutes, authorizes Petitioner to take disciplinary action against a licensed contractor through revocation of licensure; suspension of licensure; denial of issuance or renewal of licensure; imposition of an administrative fine up to $5,000; placement of licensure status on probation; or reprimand or censure of the licensee.

    
    

13. The imposition of such disciplinary action is permitted by Section 489.129(1)(m), Florida Statutes, when there is proof that the licensee is guilty of "fraud or deceit or of gross negligence, incompetency, or misconduct in the practice of contracting."

    
    

14. Respondent is charged in the Administrative Complaint filed in this case with "gross negligence, incompetence, misconduct and/or deceit" in connection with contracts with various customers in various counties of the State of Florida for roof repairs during the period 1984-1987.

    
    

15. Petitioner bears the burden of proof of the charges set forth in the Administrative Complaint. Proof that Respondent has committed those violations must be clear and convincing. Ferris v. Turlington, 510 So.2d 292 (Fla. 1987).

    
    

16. During the time period in question, the proof clearly and convincingly establishes that Respondent was grossly negligent in his supervision of subordinates in their performance of roof repairs made pursuant to contracts entered into by the company which Respondent had qualified. The proof further establishes that the work performance of those subordinates was incompetent. Respondent's negligence is further exemplified by his failure to respond to complainants; a violation of prevailing industry practices for qualifying agents. Respondent is guilty of violation of Section 489.129(1)(m), Florida Statutes, as a result of gross negligence and incompetence in the practice of contracting.

    
    

17. Respondent's conduct also failed to conform with the statutory definition of a qualifying agent as the person responsible for supervision of contracting and constructing activities of the qualified business organization. Section 489.105(4), Florida Statutes. Therefore, his conduct also constitutes a violation of Section 489.129(1)(j), Florida Statutes, prohibiting any violation of any portion of the professional practices act governing contractor conduct.

    
    

18. As noted in the Administrative Complaint, Respondent has been previously disciplined by the Construction Industry Licensing Board.

    
    

19. Rule 21E-17.002, Florida Administrative Code, enumerates aggravating circumstances which may be considered in determining the penalty to be imposed

    in the instant case. The monetary damage to customers, the severity of the offenses committed and the danger to the public from Respondent's contracting practices, as well as his previous disciplinary record, are all aggravating factors authorized by the rule for penalty consideration in this case.

    
    

20. Pursuant to penalty guidelines set forth in Rules 21E-17.001 through 21E-17.003, Florida Administrative Code, Petitioner urges the revocation of Respondent's registered roofing contractor, certified roofing contractor and certified building contractor licenses. Petitioner's position is amply justified.

RECOMMENDATION

Based on the foregoing, it is hereby

RECOMMENDED that a Final Order be entered revoking Respondent's licenses as a registered roofing contractor, certified roofing contractor, and certified building contractor.

DONE AND ENTERED this 7th day of July, 1989, in Tallahassee, Leon County.

Florida.

DON W. DAVIS

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 7th day of July, 1989.

APPENDIX

The following constitutes my specific rulings, in accordance with Section 120.59, Florida Statutes, on findings of fact submitted by the parties.

Petitioner's Proposed Findings.

1.-42. Addressed.

Respondent's Proposed Findings.

None submitted.

COPIES FURNISHED:

Elizabeth R. Alsobrook, Esquire Department of Professional Regulation The Northwood Centre, Suite 60

1940 N. Monroe St.

Tallahassee, Florida 32399-0750

William E. Whitlock, III, Esquire

320 West Park Avenue Tallahassee, Florida 32301

Fred Seely, Executive Director Construction Industry Licensing Board Department of Professional Regulation Post Office Box 2

Jacksonville, Florida 32201

Kenneth E. Easley, Esquire

Department of Professional Regulation The Northwood Centre, Suite 60

1940 N. Monroe St.

Tallahassee, Florida 32399-0750

Docket for Case No: 89-000735

Orders for Case No: 89-000735