STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

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

)

Petitioner, )

)

vs. ) CASE NO. 90-2523

)

RONNIE L. BARFIELD, )

)

Respondent. )

)

RECOMMENDED ORDER

This matter came on for hearing in Panama City, Florida, before Robert T. Benton, II, Hearing Officer of the Division of Administrative Hearings, on December 21, 1990. The Division of Administrative Hearings received the hearing transcript on January 3, 1991. Petitioner's proposed recommended order was filed on January 15, 1991. Petitioner's proposed findings of fact have been adopted, in substance, insofar as material.

APPEARANCES

For Petitioner: G. W. Harrell, Esquire

Department of Professional Regulation

1940 N. Monroe Street, Suite 60

Tallahassee, FL 32399-0792

For Respondent: Rowlett W. Bryant, Esquire

833 Harrison Avenue Panama City, FL 32402

STATEMENT OF THE ISSUE

Whether petitioner should take disciplinary action against respondent for the reasons alleged in the amended administrative complaint?

PRELIMINARY STATEMENT

By amended administrative complaint, petitioner alleges that respondent "at all times material . . . a registered roofing contractor . . . around June 1987

. . . orally contracted . . . to re-roof and replace four sky lights for a home

. . . [in] Panama City"; that he "was grossly negligent in the performance of the aforementioned job and he failed to correct any or all deficiencies despite several contacts regarding said deficiencies"; that "additional contractors were hired to effect repairs at additional expense, resulting in the customer paying more for the job than the original contract price"; and that, for these reasons, respondent "violated Section 489.129(l)(h), Florida Statutes, by committing mismanagement or misconduct in the practice of contracting that causes financial

harm to a customer" and "violated Section 489.129(l)(m), Florida Statutes by being found guilty of fraud or deceit or of gross negligence, incompetency, or misconduct in the practice of contracting."

FINDINGS OF FACT

1. At all pertinent times, respondent Ronnie L. Barfield was registered as a roofing contractor and held a state contractor's license, No. RC 0039607. At some point, records reflected the license was inactive, but this was in error.

   
   

2. In 1987, Jack Williams lived in the house at 3101 Kings Drive in Panama City, Florida. At all pertinent times the house belonged to Evelyn Rhoads, whose daughter Anna was once married to Mr. Williams.

   
   

3. "[B]ack in 1987," (T.10) Mr. Williams contracted with respondent Barfield, on behalf of Ms. Rhoads, to re-roof the house. Doing business as Gulf Coast Roofing Co., Mr. Barfield estimated the work would cost $5,000, before seeing the house, but ultimately presented a bill for (and was paid) $13,922.56. Petitioner's Exhibit No. 2.

   
   

4. Respondent removed the existing shingles, replaced rotted portions of the decking near the chimney, installed four new skylights, installed a new drip edge or eave drip and put on new felt and fiberglass shingles. Any flashing there may have been around the chimney did not survive removal of the existing shingles.

   
   

5. The eave drip, a strip of aluminum, "puckered" over the carport because the trusses were not uniform. At Mr. Williams' request, Mr. Barfield drove three nails through the eave drip into the fascia to flatten the metal out. Exposed to the elements, the heads of these galvanized nails rusted.

   
   

6. On August 10, 1987, after Jack had moved out, Anna moved back in. She noticed "a lot of ridges, indentations and waves in the roof." T.16. (But this may have been nothing new. When a concrete slab foundation varies in height, so that the trusses are at different heights, it makes the roof uneven.) Waviness arising even after respondent's work would more likely have been because of poor attic ventilation than any dereliction by respondent.

   
   

7. Anna Bartness, as she has been known since July of 1988, also noticed that the shingles capping the peak or ridge of the roof were loose and uneven. When inspected in January, ridge cap shingles were found attached with only a single nail, instead of two -- one on either side -- which is the industry standard. Eventually "the ridge cap came off it was in the yard." T.16. One of the skylights leaked, when it rained.

   
   

8. Ms. Bartness sought Mr. Williams' assistance in locating respondent to tell him of the problems. Mr. Williams remembered getting "the telephone number where [respondent] could be reached." T.14. Whether Mr. Williams himself actually telephoned is not clear, but Ms. Bartness tried repeatedly to reach Mr. Barfield by telephone.

   
   

9. Although she never succeeded, she left messages on a telephone answering machine and also left word with a secretary in Mr. Barfield's lawyer's office. A certified letter she mailed respondent was returned unclaimed. These efforts to reach Mr. Barfield may have coincided with time he spent in south Florida.

10. Respondent had agreed "LABOR CARRIES A 5 YEAR WARRANTY." Petitioner's Exhibit No. 2. He did not learn of complaints about the work at 3101 Kings Drive until after Ms. Rhoads complained to the Department of Professional Regulation and the present proceedings began. But he had not offered to reimburse Ms. Rhoads or otherwise honor the warranty in any way, as of the time of the hearing.

    
    

11. Giving up on Mr. Barfield, Ms. Bartness got estimates from two other roofers, David C. Stallnecker and Mayo= Rudd. Among other things, flanges around plumbing vents that had sustained damage from external sources required replacement, flashing needed to be installed around the chimney, wood there had again rotted, and ridge cap shingles needed removal and proper installation.

    
    

12. Mr. Rudd charged her $710 for repairs he told her consisted of putting flashing around the chimney because there was none, reapplying tar or "bull," replacing a defective vent that was leaking into a skylight and, which she could see herself, replacing shingles on the roof ridge. Petitioner's Exhibit No. 5. On or about January 15, 1988, before these repairs, Mr. Stallnecker, like Mr. Rudd, found "no flashing on the chimney." Petitioner's Exhibit No. 5; T. 44.

    
    

13. When water began coming down the chimney in 1990, Ms. Bartness contracted with James Rutledge, doing business as Rutledge Roofing, to do additional work. He removed shingles around the chimney, replaced bad wood, installed a "membrane with plastic [r]oof cement for flashing against chimney," Petitioner's Exhibit No. 7, and replaced felt and shingles.

    
    

14. Unless an owner instructs him not to, a reasonably prudent roofer would install flashing around a chimney that did not already have it before laying shingles there. T. 45. Testifying at hearing, Mr. Barfield never claimed that he installed flashing around the chimney. Nor did he ever say he saw flashing around the chimney. He said flashing

    
    

    was built in behind the brick. You couldn't see it . . . until you pulled the brick out.

    
    

    T. 70. On balance, however, his testimony suggested that he assumed there was flashing around the chimney, without ever seeing it.

    
    

    [T]he brick masons put the flashing on unless you go where they're building these 235 houses around here they would have nailed it on the side. You hardly wouldn't do that on a $200,000 house sitting on the water, I wouldn't think.

    I would think it would be built in.

    
    

    T. 71. However reasonable this assumption, and the unstated assumption that his crew had not (inadvertently) removed the flashing in taking off the existing roof, the evidence as a whole showed there was no flashing around the chimney by the time respondent's crew put down the new shingles.

    
    

    CONCLUSIONS OF LAW

    
    

15. Since the Department of Professional Regulation referred respondent's hearing request to the Division of Administrative Hearings, in accordance with Section 120.57(1)(b)3., Florida Statutes (1989), "the division has jurisdiction over the formal proceeding." Section 120.57(1)(b)3., Florida Statutes (1989).

16. Petitioner abandoned, in its proposed recommended order, its allegation that respondent violated Section 489.129(1)(h), Florida Statutes (1989). Accordingly, the Construction Industry Licensing Board is authorized to take disciplinary action against a licensee like respondent only

    
    

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

    
    

    Section 489.129(1), Florida Statutes (1989). When, as here, a licensee has invoked his right to a formal administrative hearing, the petitioner must prove him guilty at a de novo evidentiary hearing, like the one conducted in Panama City on December 21, 1990.

    
    

17. Strict procedural protections apply in disciplinary cases, and the prosecuting agency's burden is to prove its case clearly and convincingly. Ferris v. Turlington, 510 So.2d 292 (Fla. 1987). See Addington v. Texas, 441

    U.S. 426 (1979); Ferris v. Austin, 487 So.2d 1163 (Fla. 5th DCA 1986); Anheuser Busch, Inc. v. Department of Business Regulation, 393 So.2d 1177 (Fla. 1st DCA 1981); Walker v. State Board of Optometry, 322 So.2d 612 (Fla. 3rd DCA 1975); Reid v. Florida Real Estate Commission, 188 So. 2d 846, 851 (Fla. 2nd DCA 1966). A licensee's breach of duty justifies revocation only if the duty has a "substantial basis," Bowling v. Department of Insurance, 394 So.2d 165, 173 (Fla. 1st DCA 1981) in the evidence, unless applicable statutes and rules create a clear duty, which the evidence shows has been breached.

    
    

18. License revocation proceedings have been said to be "'penal' in nature." State ex rel. Vining v. Florida Real Estate Commission, 281 So.2d 487,

    491 (Fla. 1973); Kozerowitz v. Florida Real Estate Commission, 289 So.2d 391 (Fla. 1974); Bach v. Florida State Board of Dentistry, 378 So.2d 34 (Fla. 1st DCA 1979) (reh. den. 1980).

    
    

19. In the present case, petitioner proved ordinary negligence on respondent's part, both with respect to nailing the ridge cap shingles (or failing adequately to inspect) and with respect to shingling despite the absence of flashing around the chimney (or failing adequately to inspect), but Section 489.129(1)(m), Florida Statutes (1989) does not make simple negligence grounds for disciplinary action. Although failing to flash around the chimney, especially after replacing rotten wood in proximity, seems egregious, not one of the three expert roofers who testified was asked whether it amounted to a serious mistake or otherwise evinced gross negligence.

    
    

20. Petitioner also proved, however, that respondent has taken no steps to honor his warranty, despite the problems his negligience gave rise to. Proof at hearing did not establish the reasonableness and necessity of the repairs made subsequent to respondent's work in the sense of establishing a precise dollar amount that the warranty would require him to reimburse Ms. Rhoads, but petitioner proved that some reimbursement was definitely in order and that respondent had not offered the first penny. Respondent himself seemed to concede both these points. In the absence of any suggestion that respondent lacked financial ability, petitioner's proof made out a violation of Section 489.129(1)(m), Florida Statutes (1989).

21. In pertinent part, rules the Construction Industry Licensing Board has promulgated to govern disciplinary proceedings specify penalty guidelines for use "absent aggravating or mitigating circumstances," including:

(19) Gross negligence, incompetence and/or misconduct, fraud or deceit.

1. Causing monetary or other harm to licensee's customer, or physical harm to any person. First violation, $500 to $1500 fine.

   
   

   Rule 21E-17.001, Florida Administrative Code. Apparently anything relevant logically may be taken into account in aggravation or mitigation. The Board's rule provides:

   
   

   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 damage to the licensee's customer, in any way associated with the violation, which damage the licensee has not relieved . . .

      
      

   2. Actual job-site violations of building codes, or conditions exhibiting gross negligence,

      incompetence, or misconduct by the licensee, which have not been corrected. . .

      
      

   3. The severity of the offense.

(9) The deterrent effect of the penalty imposed.

(12) Any other mitigating or aggravating circumstances.

Petitioner argues for a penalty of $1500, assuming it has proven a repeat violation. But it was not clear to the hearing officer on what basis petiioner contends that it has proven a repeat violation within the meaning of Rule 21E- 17.003, Florida Administrative Code. The decision in Willner v. Department of Professional Regulation, Board of Medicine, 563 So.2d 805 (Fla. 1st DCA 1990), seems to rule out probation subject to restitution.

RECOMMENDATION

It is, accordingly, RECOMMENDED:

That the Construction Industry Licensing Board fine respondent five hundred dollars ($500).

DONE and ENTERED this 1st day of January, 1991, in Tallahassee, Florida.

ROBERT T. BENTON, II

Hearing Officer

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, FL 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 1st day of January, 1991.

Copies furnished to:

Daniel O'Brien, Executive Director Construction Industry Licensing Board Post Office Box 2

Jacksonville, FL 32202

Jack McRay, General Counsel Department of Professional Regulation 1940 N. Monroe Street

Tallahassee, FL 32399-0792

G. W. Harrell, Esquire

Department of Professional Regulation 1940 N. Monroe Street, Suite 60

Tallahassee, FL 32399-0792

Rowlett W. Bryant, Esquire 833 Harrison Avenue

Panama City, FL 32402

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS:

ALL PARTIES HAVE THE RIGHT TO SUBMIT WRITTEN EXCEPTIONS TO THIS RECOMMENDED ORDER. ALL AGENCIES ALLOW EACH PARTY AT LEAST 10 DAYS IN WHICH TO SUBMIT WRITTEN EXCEPTIONS. YOU SHOULD CONTACT THE AGENCY THAT WILL ISSUE THE FINAL ORDER IN THIS CASE CONCERNING AGENCY RULES ON THE DEADLINE FOR FILING EXCEPTIONS TO THIS RECOMMENDED ORDER. ANY EXCEPTIONS TO THIS RECOMMENDED ORDER SHOULD BE FILED WITH THE AGENCY THAT WILL ISSUE THE FINAL ORDER IN THIS CASE.

Docket for Case No: 90-002523

Orders for Case No: 90-002523