STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF PROFESSIONAL )

REGULATION (CONSTRUCTION )

INDUSTRY LICENSING BOARD), )

)

Petitioner, )

)

vs. ) CASE NO. 90-2813

)

LOUIS GORDON, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was conducted in this case on August

15 1990, in Miami, Florida, before Stuart M. Lerner, a duly designated Hearing Officer of the Division of Administrative Hearings.

APPEARANCES

For Petitioner: Robert G. Harris, Esquire

Cathleen E. Lindsey, Esquire Department of Professional Regulation 1940 North Monroe Street, Suite 341

Tallahassee, Florida 32399-0750

For Respondent: Louis Gordon, pro se

14870 Southwest 250th Avenue Miami, Florida 33187

STATEMENT OF THE ISSUES

1. Whether Respondent committed the offenses described in the administrative complaint?

   
   

2. If so, what disciplinary action should be taken against him?

   
   

   PRELIMINARY STATEMENT

   
   

   On January 29, 1990, the Department of Professional Regulation (Department) issued an administrative complaint charging that Respondent, a licensed roofing contractor, engaged in the following conduct in connection with two roofing jobs undertaken by the contracting business for which he was the qualifying agent:

   
   

3. Respondent, through the contracting business he was associated with and responsible for in his capacity as a licensed contractor, did undertake

certain contracting jobs, as set forth below, and did perform said jobs at

least in part, and in connection with each said job, the deficiencies/errors noted below occurred in Respondent's performance of said job:

1. Case #89-003611. On or about November 29, 1987, Respondent contracted with one, Wayne Leidecker to re-roof the residence at 18280 South West 202 Street, Miami, Florida for the amount of

   $4,655.00. Respondent has called for final inspection several times but all have failed. Respondent did not call for the tin cap/anchor sheet inspection. Respondent continued to work, concealing any deficiencies that exist. Respondent was cited numerous times by the Dade County Building Inspectors for code violations. On or about August 10, 1989, a formal hearing held by Dade County Construction Trades Qualifying Board found the Respondent guilty on three of four charges. Respondent's personal and business certificates were suspended for six months and the Respondent was fined $1,500.00.

2. Case #89-003559. On or about April 10, 1986, Respondent contracted with Mazella and Lee Harrington to re-roof

the residence at 11860 South West 221 Street, Goulds, Florida for the amount of $5,295.00 Respondent failed to obtain permits or call for the required inspections, in violation of local building codes.

According to the complaint, such conduct constituted "gross negligence, incompetence, and/or misconduct by Respondent, in violation of Chapter 489.129(1)(m) & (j), and 489.105(4), and 489.119;" a "willful or deliberate violation or disregard by Respondent of applicable local building codes and laws, in violation of [S]ection 489.129(1)(d);" a "failure by Respondent to properly supervise contracting activities he was responsible for as qualifying agent, and which supervisory deficiency also reflect[s] gross negligence, incompetence, or misconduct, violating 489.129(1)(m) & (j), 489,119, [and] 489.105(4);" and a "violation of Section 489.129(1)(i), Florida Statutes." The complaint further alleged that Respondent had previously been disciplined by the Construction Industry Licensing Board on two separate occasions for other misconduct.

Respondent denied the allegations of wrongdoing advanced in the complaint and requested a formal hearing. On May 8, 1990, the matter was referred to the Division of Administrative Hearings for the assignment of a Hearing Officer to conduct such a hearing.

At the outset of the formal hearing, the Department of Professional Regulation announced that it did not intend to pursue the allegations set forth in paragraph 3(b) of the administrative complaint concerning the roofing work done on the Harrington residence. It then proceeded to present its case on the

remaining allegations set forth in the complaint. One witness, Wayne Leidecker, testified on behalf of the Department. In addition to Leidecker's testimony, the Department offered six exhibits into evidence, all of which were received by the Hearing Officer. Respondent presented his own testimony as well as that of Dorothy Barret, the wife of the owner of the roofing company that employs Respondent. Respondent also offered 15 exhibits into evidence, all of which were admitted by the Hearing Officer.

At the close of the hearing, the Hearing Officer advised the parties on the record that post-hearing submittals had to be filed no later than ten days after the Hearing Officer's receipt of the transcript of the hearing. The hearing transcript was received by the Hearing Officer on September 4, 1990. The Department filed a proposed recommended order on September 13, 1990.

Petitioner's proposed recommended order contains proposed findings of fact. These proposed findings of fact have been carefully considered and are specifically addressed in the Appendix to this Recommended Order. To date, Respondent has not filed any post-hearing submittal.

FINDINGS OF FACT

1. Respondent is now, and has been since 1982, a roofing contractor licensed to practice in the State of Florida. He holds license number RC 0041149. At all times material hereto, Respondent has been the licensed qualifying agent for Reinforcement Roofing and Painting Company (Reinforcement).

   
   

2. On or about November 29, 1987, Reinforcement, through Respondent, entered into a written contract with Wayne Leidecker in which it agreed, for

   $4,655.00, excluding permit fees and taxes, to replace the roof on Leidecker's residence, located at 18280 S.W. 202nd Street in Miami, Florida.

   
   

3. Shortly thereafter, Reinforcement obtained a permit from the Metropolitan Dade County Building and Zoning Department to perform the work specified in the contract. It then proceeded to begin work on the project.

   
   

4. The felt underlayer of the new roof was improperly installed.

   
   

5. Reinforcement laid the shingles over this improperly installed felt underlayer without first calling for a tin cap/anchor sheet inspection, in willful violation of the local building code. The result was a roof having a "wavy" appearance.

   
   

6. To make matters worse, some of the shingles were not properly fastened to the roof deck.

   
   

7. Furthermore, the metal eaves and gable drips were installed too close to the facie in violation of the local building code.

   
   

8. The work on the Leidecker project, which was performed under the supervision of Respondent, was completed in January, 1988. The job, however, having been done in an incompetent manner, failed its final inspection.

   
   

9. Efforts were subsequently made by Reinforcement, under the direction of Respondent, to correct the foregoing problems. These efforts were inadequate and unsuccessful. Consequently, the project was still unable to pass a final inspection.

10. Leidecker was growing increasingly impatient. In the latter part of 1988, he had Charles H. Walton, the Vice-President of Bob Hilson & Company, Inc., examine the roof. Based upon his examination, Walton concluded, in a written report which he gave Leidecker, that "[d]ue to all of the above deficiencies, South Florida Building Code infractions and the waviness of the shingles, the only way that I can truthfully say that this roof can be properly corrected is to remove this existing shingle roof entirely to a smooth workable surface and reinstall a new 3-tab, 20 year type fungus resistant fiberglass shingle roof system, that meets all of the South Florida Building Code specifications and manufacturers' requirements." This was consistent with what Leidecker had been told by the building inspectors who had previously inspected the roof. Accordingly, after receiving Walton's report, Leidecker refused to allow Reinforcement to do any further patchwork on the roof. He expected Reinforcement to take the removal and reinstallation measures Walton had recommended in his written report. He would accept nothing less.

    
    

11. By letter dated July 14, 1989, Respondent was informed that a formal hearing would be held before the Dade County Construction Trades Qualifying Board (CTQB) on the following four charges filed against him relating to the Leidecker project:

    
    

    1. Between November 28, 1987 and January 31, 1989, Reinforcement Roofing

       & Painting, Co., and/or Louis Gordon as the Qualifying Agent there for as a Roofing and Painting Contractor did unlawfully violate Section 3401.4(c) of the South Florida Building Code (SFBC) by failing to obtain the final roofing inspection required at a roofing job

       located at 18280 S.W. 202nd Street Miami, Dade County, Florida; said violation evidencing a failure to maintain the affirmative condition of honesty, integrity and good character as required for the issuance of a certificate of competency under Section 10-16(a) of the Code of Metropolitan Dade County.

    2. Between November 28, 1987 and January 31, 1989, Reinforcement Roofing

       & Painting, Co., and/or Louis Gordon as the Qualifying Agent there for as a Roofing and Painting Contractor did unlawfully violate Section 3403.3(h)(2) of the South Florida Building Code (SFBC) by failing to imbed sheets of roofing felt without wrinkles or buckles as required at a roofing job located at 18280 S.W. 202nd Street, Miami, Dade County, Florida; said violation evidencing a failure to maintain the affirmative condition of honesty, integrity and good character as required for the issuance of a certificate of competency under Section 10-16(a) of the Code of Metropolitan Dade County.

    3. Between November 28, 1987 and January 31, 1989, Reinforcement Roofing

       & Painting, Co., and/or Louis Gordon as the Qualifying Agent there for as a Roofing and Painting Contractor did unlawfully violate Section 3408.3(c) of the South Florida Building Code (SFBC) by failing to install metal eave and/or gable drips so the bottom of said metal drips did not touch facie and did [not] have the minimum of a one-half inch clearance from the structure as required at a roofing job located at 18280 S.W.

       202nd Street, Miami, Dade County, Florida; said violation evidencing a failure to maintain the affirmative condition of honesty, integrity and good character as required for the issuance of a certificate of competency under Section 10-16(a) of the Code of Metropolitan Dade County.

    4. Between November 28, 1987 and January 31, 1989, Reinforcement Roofing

       & Painting, Co., and/or Louis Gordon as the Qualifying Agent there for as a Roofing and Painting Contractor did unlawfully violate Section 10-22(a) of the Code of Metropolitan Dade County, Florida, in that they did fail to fulfill their contractual obligation to honor a six (6) year warranty in connection with roofing work done on the residence located at 18280 S.W. 202nd Street, Miami, Dade County, Florida.

       
       

12. The hearing on these charges was held as scheduled on August 10, 1989. The CTQB found Respondent guilty of Charges 1, 2 and 3 and not guilty of Charge

1. The following penalties were imposed: Charge 1- six-month suspension of Respondent's personal and business certificates and a fine of $1,000.00; Charge 2- six-month suspension of Respondent's personal and business certificates and a fine of $250.00; and Charge 3- official letter of reprimand and a fine of

   $250.00. In addition, he was directed to pay $257.00 in administrative costs.

   
   

   1. On October 12, 1989, Respondent made another appearance before the CTQB. He made a request that the foregoing penalties be reduced. His request was granted. The CTQB "lifted" his suspension, but with the caveat that if he did not timely pay his fines the suspension would be reinstated. Respondent failed to make timely payment. As a result, his suspension was reinstated.

      
      

   2. Neither Reinforcement, nor Respondent in his individual capacity, has yet to take the measures necessary to correct the problems with the Leidecker roof that were caused by the shoddy work done under Respondent's inadequate supervision.

   3. Respondent has been disciplined on two separate, prior occasions by the Construction Industry Licensing Board for conduct unrelated to that which is the subject of the charges filed against him in the instant case. On February 12, 1986, the Board issued a final order in Case No. 0053301 imposing a $250.00 administrative fine upon Respondent. On June 16, 1988, in another case, Case No. 81135, the Board fined Respondent $500.00 for violating the provisions of Section 489.129(1)(i), Florida Statutes.

      
      

      CONCLUSIONS OF LAW

      
      

   4. The Department of Professional Regulation has been vested with statutory authority to issue licenses to those qualified applicants seeking to engage in the construction contracting business in the State of Florida. Section 489.115, Fla. Stat.

      
      

   5. A business entity, like Reinforcement, may obtain such a license, but only through a "qualifying agent." The "qualifying agent" must be "legally qualified to act for the business organization in all matters connected with its contracting business and [have the] authority to supervise construction undertaken by such business organization." The license which authorizes the business entity to act as a construction industry contractor is issued "in the name of the qualifying agent, and the name of the business organization [is] noted thereon." Section 489.119, Fla. Stat. The license which is the subject of the instant disciplinary proceeding is such a license. It is issued in the name of Respondent, who is the "qualifying agent" for Reinforcement.

      
      

   6. Once a license is issued, it may be revoked or suspended by the Construction Industry Licensing Board if an administrative complaint is filed alleging that the licensee committed any of the acts proscribed by Section 489.129(1), Florida Statutes, and it is shown that the allegations of the complaint are true. Proof greater than a mere preponderance of the evidence must be submitted. Clear and convincing evidence is required. See Ferris v. Turlington, 510 So.2d 292 (Fla. 1987); Pascale v. Department of Insurance, 525 So.2d 922 (Fla. 3d DCA 1988). "The evidence must be of such weight that it produces in the mind of the trier of fact a firm belief or conviction, without hesitancy, as to the truth of the allegations sought to be established." Slomowitz v. Walker, 429 So.2d 797, 800 (Fla. 4th DCA 1983). Furthermore, the revocation or suspension of a license may be based only upon offenses specifically alleged in the administrative complaint. See Hunter v. Department of Professional Regulation, 458 So.2d 842, 844 (Fla. 2nd DCA 1984).

      
      

   7. Section 489.129, Florida Statutes, provides in pertinent part as follows:

      
      

      1. The board may revoke, suspend, ... the certificate or registration of a contractor, require financial restitution to a consumer, impose an administrative fine not to exceed

         $5,000, place a contractor on probation, require continuing education, assess costs associated with investigation and prosecution, or reprimand or censure a contractor if the contractor, or if the business organization for which the

         contractor is a primary qualifying agent . . . , is found guilty of any of the following acts:

         * * *

         (d) Willfully or deliberately disregarding and violating the applicable building codes or laws of the state or of any municipalities or counties thereof.

         * * *

         (i) Being disciplined by any municipality or county for an act or violation of this part, which discipline shall be reviewed by the state board before the state board takes any disciplinary action of its own.

         * * *

         (j) Failing in any material respect to comply with the provisions of this act.

         * * *

         (m) Being found guilty of fraud or deceit or of gross negligence, incompetency, or misconduct in the practice of contracting.

         * * *

      2. If a contractor disciplined under subsection (1) is a qualifying agent for a business organization and the violation was performed in connection with a construction project undertaken by that business organization, the board may impose an additional administrative fine not to exceed $5,000 against the business organization or against any partner, officer, director, trustee, or member if such person participated in the violation or knew or should have known of the violation and failed to take reasonable corrective action.

         
         

   8. A "qualifying agent" has the statutory responsibility "to supervise, direct, manage, and control the contracting activities of the business entity with which [he] is connected." Section 489.105(4), Fla. Stat. This duty may not be delegated by the "qualifying agent to another licensed contractor." Because he has a nondelegable statutory obligation to oversee all construction projects undertaken by the business entity he has qualified, the "qualifying agent" may be held liable and disciplined for statutory violations committed in connection with such projects, regardless of his actual involvement in these projects, on the theory that he breached his duty "to supervise, direct, manage, and control." See Gatewood v. McGee, 475 So.2d 720 (Fla. 1st DCA 1985); Alles

      v. Department of Professional Regulation, 423 So.2d 624 (Fla. 5th DCA 1982)

   9. The administrative complaint in the instant case, as amended at hearing, charges that Respondent violated Section 489.129(1)(d),(i), (j) and (m), Florida Statutes, in connection with roofing work done on the Leidecker residence. The work in question was performed by Reinforcement, the business entity for which Respondent is the "qualifying agent."

      
      

   10. The record evidence clearly and convincingly establishes that Respondent, in his capacity as Reinforcement's qualifying agent, committed these violations, as charged in the amended administrative complaint. Accordingly, disciplinary action against Respondent is warranted.

       
       

   11. In determining what disciplinary action should be taken against Respondent for his violation of these statutory provisions, it is necessary to consult Chapter 21E-17, Florida Administrative Code, which contains the Construction Industry Licensing Board's disciplinary guidelines. Cf. Williams v. Department of Transportation, 531 So.2d 994, 996 (Fla. 1st DCA 1988) (agency is required to comply with its disciplinary guidelines in taking disciplinary action against its employees).

       
       

   12. Florida Administrative Code Rule 21E-17.001 provides in pertinent part:

       
       

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

       * * *

       (5) 489.129(1)(d): Failure to call for inspections. First violation, letter of guidance; repeat violation, $250 to

       $750 fine.

       * * *

       (16) 489.129(1)(i): Local disciplinary action. Use penalty herein listed for the violation most closely resembling the act underlying the local discipline; repeat violation, same method, use the penalty herein for repeat violation.

       * * *

       1. 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,

             $1000 to $5000 fine and 3 to 9 month suspension.

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

       $1500 fine; repeat violation, $1000 to

       $5000 fine and suspension or revocation. 1/

       Because Respondent's violation "harmed" Leidecker, subsection (19)(b), rather than (19)(a), of Rule 21E-17.001 applies in the instant case.

       
       

   13. "Repeat violation," as used in Chapter 21E-17, Florida Administrative Code, is described in Florida Administrative Code Rule 21E-17.003 as follows:

       
       

       1. 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 the chronological relationship of the acts underlying the various disciplinary actions, and (ii) regardless of whether the violations in the present or prior disciplinary actions are of the same or different subsections of the disciplinary statutes.

       2. The penalty given in the above list for repeat violations is intended to

          apply only to situations where the repeat violation is of a different subsection of Chapter 489 than the first violation. Where, on the other hand, the repeat violation is the very same type of violation as the first violation, the penalty set out above will generally be increased over what is otherwise shown for repeat violations on the above list.

          
          

   14. Florida Administrative Code Rule 21E-17.005 provides that "[w]here several of the . . . violations [enumerated in Florida Administrative Code Rule 21E-17.001] shall occur in one or several cases being considered together, the penalties shall normally be cumulative and consecutive."

       
       

   15. The aggravating and mitigating circumstances which are to be considered before a particular penalty is chosen are listed in Florida Administrative Code Rule 21E-17.002 . They are as follows:

       
       

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

       3. The severity of the offense.

       4. The danger to the public.

       5. The number of repetitions of offenses.

       6. The number of complaints filed against the licensee.

       7. The length of time the licensee has practiced.

       8. The actual damage, physical or otherwise, to the licensee's customer.

       9. The deterrent effect of the penalty imposed.

       10. The effect of the penalty upon the licensee's livelihood.

       11. Any efforts at rehabilitation.

       12. Any other mitigating or aggravating circumstances.

           
           

   16. Having considered the facts of the instant case in light of the provisions of Chapter 21E-17, Florida Administrative Code, it is the view of the Hearing Officer that the appropriate penalty in the instant case is the suspension of Respondent's license for a period of one year and the imposition upon Respondent of a fine in the amount of $3,500.00.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby

RECOMMENDED that the Construction Industry Licensing Board enter a final order finding Respondent guilty of the violations of Section 489.129, Florida Statutes, charged in the instant amended administrative complaint and suspending Respondent's license for a period one year and imposing upon him a fine in the amount of $3,500.00 for having committed these violations.

DONE AND ENTERED in Tallahassee, Leon County, Florida, this 27th day of September, 1990.

STUART M. LERNER

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 27th day of September, 1990.

ENDNOTES

1/ Pursuant to Florida Administrative Code Rule 21E-17.007, the Construction Industry licensing Board, in addition to imposing the foregoing penalties, may also place the licensee on probation if it determines that such action is required "to assure that the licensee operates properly and within the law in the future."

APPENDIX TO RECOMMENDED ORDER IN CASE NO. 90-2813

The following are the Hearing Officer's specific rulings on the proposed findings of fact submitted by the Department in the instant case:

1. Rejected because it is more in the nature of a statement of the law than a finding of fact.

2-10. Accepted and incorporated in substance, although not necessarily repeated verbatim, in this Recommended Order.

1. Rejected because it would add only unnecessary detail to the factual findings made by the Hearing Officer.

2. Accepted and incorporated in substance.

3. Rejected because it is more in the nature of argument concerning the significance of evidence adduced by the Department rather than a finding of fact based upon such evidence.

14-21. Accepted and incorporated in substance.

COPIES FURNISHED:

Robert G. Harris, Esquire Department of Professional

Regulation

1940 North Monroe Street, Suite 341

Tallahassee, Florida 32399-0750

Louis Gordon

14870 Southwest 205th Avenue Miami, Florida 33187

Fred Seely, Executive Director Construction Industry Licensing Board Post Office Box 2

Jacksonville, Florida 32201

Kenneth E. Easley, Esquire General Counsel

Department of Professional Regulation 1940 North Monroe Street, Suite 60

Tallahassee, Florida 32399-0750

Docket for Case No: 90-002813

Orders for Case No: 90-002813