STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF PROFESSIONAL )

REGULATION, CONSTRUCTION )

INDUSTRY LICENSING BOARD, )

)

Petitioner, )

)

vs. ) CASE NO. 89-5101

)

MARK MASIERO, )

)

Respondent. )

)

RECOMMENDED ORDER

This matter was heard by William R. Dorsey, Jr., the Hearing Officer designated by the Division of Administrative Hearings in Fort Lauderdale, Florida, on December 21, 1989.

APPEARANCES

For Petitioner: Robert G. Harris

Department of Professional Regulation

1940 North Monroe Street Tallahassee, Florida 32399-0792

For Respondent: No Appearance

STATEMENT OF THE ISSUES

Whether Mr. Masiero is guilty of gross negligence in reroofing work he performed, and misconduct by failing to honor a guarantee given in connection with that work?

PRELIMINARY STATEMENT

Although provided due notice of the hearing, Mr. Masiero did not attend.

At the hearing room, a note was left by the building manager relaying a telephone message from Mr. Masiero stating that he was unable to attend the hearing because he "had too short notice" of the hearing. By Order dated October 18, 1989, this matter had been set for hearing on November 8, 1989. The hearing was deferred, on motion of the Department, to December 21, 1989. The Notice for the December hearing was served on the parties on October 31, 1989 Mr. Masiero had adequate notice of the hearing.

At the opening of the hearing, the Department renewed its Motion to Deem Matters Admitted, which it had filed on December 13, 1989. Requests for admissions had been sent to Mr. Masiero, which he failed to answer. The Department maintained that the matters had been admitted as a matter of law, and that there was no further need for a formal hearing. That motion was denied,

with respect to the allegations of misconduct made in the Administrative Complaint. The motion was granted with respect to requests 1-5 of the request for admissions, which established that Mr. Masiero is licensed by the Construction Industry Licensing Board as a roofing contractor, holds license RC0039716, that the license was in effect at the time of the final hearing and that Mr. Masiero was licensed at the time he performed the work which is the subject of the Administrative Complaint.

A transcript of the hearing was filed and the Department filed a proposed recommended order. The proposed findings of fact have been adopted in this Recommended Order.

FINDINGS OF FACT

1. Mark Masiero was the qualifying agent for All Florida Roofing Company. Mr. Masiero entered into a contract, on behalf of All Florida Roofing Company, with Cristobal Sotolongo of Miramar, Florida, on January 19, 1987 According to the contract Mr. Masiero would

   
   

   [r)emove the roof at the address above down to wood sheathing or smooth, workable surface and haul all debris away (Department Exhibit 1)

   
   

   and install a hot tar roof on a flat deck. The company further gave a guarantee which read:

   
   

   The company guararitees its workmanship for ten years. It will replace faulty materia1 or faulty workmanship within the period of the guarantee free of charge (Department Exhibit 1).

   
   

2. Mr. Sotolongo paid $700 at the time the contract was executed. The total price was to be $2,500. Mr. Sotolongo thereafter paid All Florida Roofing Company an additional $1,600. Mr. Sotolongo received a job invoice from All Florida Roofing Company signed by Mark Masiero on March 14, 1987, showing payment in full for the roofing work. Two hundred dollars had been deducted from the contract price for damage done to a patio screen and popcorn ceiling at the Sotolongo residence during the roofing work.

   
   

3. After the work was completed, Mr. Sotolongo had a leak in his bedroom. Mr. Masiero returned and put some tar on the roof, but it still leaked. As a result of the leak Mr. Sotolongo lost the ceiling in the bedroom. He called Mr. Masiero repeatedly in an attempt to have the leak repaired and ultimately retained a lawyer, Steven M. Rosen, who wrote to All Florida Roofing Company on Mr. Sotolongovs behalf to complain about the failure to honor the guarantee and perform remedial work.

   
   

4. After he received no reply to his lawyer's letter from Mr. Masiero or All Florida Roofing Company, Mr. Sotolongo received estimates for roof repairs from a number of roofers, including Professional Roofing, Inc. of Hollywood, Florida, Pioneer Roofing Company, Inc. of Hollywood, Florida, Universal Roofing, Inc. of Hollywood, Florida, and Gory Roofing, Inc. of Hollywood, Florida. A roof inspection was also provided by Gory Roofing. The reroofing was done by Gory Roofing, Inc. at a cost of $1,500.

5. The problem with the roofing work done by All Florida Roofing Company and Mr. Masiero was that the work did not conform to the contract, in that the old roof had not been removed down to the wood sheathing or to a smooth workable surface. The old roof had been a tar and gravel roof. Lengths of 2 x 4 lumber had been placed around the perimeter of that roof and 1 1/2" to 2" of concrete had been poured on that old roof; the old tar and gravel roof had been placed over the concrete. Mr. Masiero and All Florida Roofing Company had not removed the underlying concrete roof or an older tar and gravel roof below it. This caused the leaking. The repair work done by Gory Roofing, Inc. included removal of the old roofing system, and application of a new roof. After that work, there have been no leaks from the roof.

   
   

   CONCLUSIONS OF LAW

   
   

   The Division of Administrative Hearings has jurisdiction over this matter.

   Section 120.57(1), Florida Statutes.

   
   

6. Section 489.129(1), Florida Statutes (1987) provides in part that:

   
   

   The Board may revoke, suspend or deny the issuance or renewal of the certificate or registration of a contractor, impose an administrative fine not to exceed $5,000, place a contractor on probation . . . if the contractor . . . is found guilty of the following acts:

   (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.

   
   

7. Respondent was responsible for the contracting activities of All Florida Roofing Company and was responsible for supervising, directing, managing and controlling its activities on the Sotolongo job, pursuant to Sections 489.105(3) and (4) and 489.119, Florida Statutes. See, Allec v. Department of Professional Regulation, 423 So. 2d 624 (Fla. 5th DCA 1982). Failure to do so is a violation of the act.

   
   

8. Respondent violated Section 489.129(1)(j), Florida Statutes, by failing to provide warranty repairs, which is a type of misconduct, by failing to ensure that All Florida Roofing Company provided adequate warranty repairs, and by failing to adequately supervise the job site activities of its employees when the roof was replaced and when the repair work was attempted.

   
   

9. Respondent is guilty of gross negligence and incompetency in the performance of the substandard re-roofing work and guilty of misconduct by failing to reasonably honor the warranty, in violation of Section 489.129(1)(m), Florida Statutes. The Board treats failure to honor a warranty as misconduct. See, Rule 21E-17. 001 (11), Florida Administrative Code.

   Rule 21E-17.001, Florida Administrative Code, provides in part:

   
   

   The following guidelines shall be used in disciplinary cases, absent aggravating or mitigating circumstances and subject to the other provisions of this Chapter.

   (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.

   * * *

   (19) 489.129(1)(m): Gross negligence, incompetence, and/or misconduct, fraud or deceit.

   1. 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, $1,090 to $1,500 fine and 3 to 9 months suspension.

   2. Causing monetary or other harm to licensee's customer, or physical harm to any person. First violation, $500 to $1,500 fine; repeat violation, $1,000 to $5,000 fine and suspension or revocation.

      
      

      Rule 21-17.002, Florida Administrative Code, provides in part:

      
      

      Circumstances which may be considered for the purpose of mitigation or aggravation of penalty shall include, but are not limited to the following:

      1. Monetary or other damages to the licensee's customer, in any way associated with the violation, which damage the licensee has not relived, 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).

      2. 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.

   
   

10. In light of the monetary damage Mr. Sotolongo experienced, and the failure of Mr. Masiero to remedy his substandard work, the discipline to be imposed in this case should include the maximum fines allowed under the penalty guidelines for a first offense involving failure to honor a warranty and gross negligence or, incompetence causing financial harm to a consumer, for a total fine of $2,250. The penalties are cumulative under Rule 21E-17.005, Florida Administrative Code. At the time the contract was entered into, the Board was not authorized by statute to order restitution, so no restitution can be imposed. It is inappropriate to suspend Mr. Masiero's license until Mr. Masiero makes full restitution to Mr. Sotolongo, for to do so is to attempt to require restitution where no statute authorizes it.

RECOMMENDATION

It is recommended that Mr. Masiero be found guilty of violations of Section 489.129(1)(j) and (m), and that he be fined $2,250.

DONE AND ENTERED in Tallahassee, Leon County, Florida, this 23rd day of March, 1990.

WILLIAM R. DORSEY, JR.

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 23rd day of March, 1990.

COPIES FURNISHED:

Robert G. Harris

Department of Professional Regulation 1940 North Monroe Street

Tallahassee, Florida 32399-0792

Mark Masiero

6631 Southwest 26th Court Miramar, Florida 33023

Kenneth D. Easley, General Counsel Department of Professional Regulation 1940 North Monroe Street

Tallahassee, Florida 32399-0792

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

Jacksonville, Florida 32202

Docket for Case No: 89-005101

Orders for Case No: 89-005101