STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

PINELLAS COUNTY CONSTRUCTION ) LICENSING BOARD, )

)

Petitioner, )

)

vs ) CASE NO. 90-6828

)

JAMES ROSATI, JR., )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice the Division of Administrative Hearings by its duly designated hearing officer, K.N. Ayers, held a formal hearing in the above- styled case on January, 1991 at Clearwater, Florida.

APPEARANCES

For Petitioner: Sarah Richardson, Esquire

315 Court Street Clearwater, Florida 34616

For Respondent: James Rosati, Jr., pro se

109 Harbor View Lane Largo, Florida 34640

STATEMENT OF THE ISSUES

Whether respondent violated various provisions of Section 24(2) Chapter 75- 489, Laws of Florida, as more specifically alleged in the Administrative Complaint dated September 20, 1990.

PRELIMINARY STATEMENT

By Administrative Complaint dated September 20, 1990 the Pinellas County Construction Licensing Board (PCCLB), Petitioner, seeks to revoke, suspend or otherwise discipline the license of James Rosati, Jr., Respondent, as a certified residential building contractor. As grounds therefor, it is alleged that Respondent contracted with a home owner to replace a porch roof, install soffit and facia and perform other work; that he failed to obtain a proper permit for the work for which he had contracted to perform; that he improperly performed the roof work; and, that in carrying out this contract, he violated the Standard Building Code, performed work for which he was not licensed, mismanaged the contract, committed fraud, deceit and gross misconduct, and performed the work without an applicable building permit.

At the hearing Petitioner called two witnesses, Respondent called one witness and stipulated that he was licensed as alleged, and seven exhibits were admitted into evidence. Proposed findings have been submitted by the parties. Treatment accorded proposed findings not accepted or included below is contained in the Appendix attached hereto and made a part hereof.

FINDINGS OF FACT

1. At all times relevant hereto, James Rosati Jr., Respondent, was a certified residential building contractor and held license No. C-1135 from the PCCLB. He was the qualifying contractor for Pinnacle Home Improvements, Inc.

   
   

2. Pinnacle Home Improvements, Inc. entered into a contract with Victoria Lawson to replace the aluminum roof on the back porch with a new roof, put an 8 foot divider wall in the back room, put soffit and facia around the overhang of the house, replace any bad wood found, replace a burglar bar with screen at front door, and replace a cracked beam and paint; all for a price of $4900.

   
   

3. A building permit was obtained to install 150 linear feet of facia and soffit aluminum PLC coated on August 3, 1989 (Ex. 6) showing estimated cost of work of $1000. This permit did not cover replacing the roof or doing other roofing work for which Respondent was not licensed.

   
   

4. When the work was completed Ms. Lawson paid the full contract price of

   $4900 to Pinnacle Builders.

   
   

5. Shortly thereafter the roof began to leak and Lawson complained to Pinnacle who sent someone out to stop the leak by putting a coating of fiberglass over the plywood originally placed over the existing aluminum roof.

   
   

6. When the roof continued to leak and satisfaction was not forthcoming from Pinnacle, Lawson requested a qualified roofer give her an estimate of the cost to replace the roof.

   
   

7. Charles Dallier, a licensed roofer, inspected the roof and found that Pinnacle had nailed a sheet of painted plywood over the aluminum roof piercing the aluminum in the process. When Dallier returned a second time he found 90 pound roll roofing had been added to the roof. Dallier gave Lawson an estimated price of $850 to remove the aluminum roof and replace.

   
   

8. The cost for a permit pulled for the work to be done is based upon the value of the work. Accordingly, the permit pulled that failed to include all of the work which Pinnacle had contracted to do cost Pinnacle considerably less than would have a permit showing the contract price of $4900.

   
   

9. Respondent contends that he was always willing to replace the roof but the price quoted by Dallier was too high. Nevertheless, Pinnacle finally presented a check for $850 to do the roof properly but before the work started the check was dishonored by the bank for insufficient funds.

   
   

10. Shortly thereafter, Pinnacle filed for bankruptcy.

    CONCLUSIONS OF LAW

    
    

11. The Division of Administrative Hearings has jurisdiction over the parties to, and the subject matter of these proceedings. Chapter 89-504 Laws of Florida, Section 12(6).

    
    

12. Section 24 of this statutes authorizes the PCCLB to take disciplinary action against the license of a contractor certified or registered under this chapter for the various offenses listed in subsection (2) of which the contractor has been found guilty.

    
    

13. In license disciplinary proceedings the PCCLB must prove the allegations by clear and convincing evidence. Ferris v. Turlington, 510 So.2d 292 (Fla. 1987).

    
    

14. Subsection (2) provides, in part the following acts constitute cause for disciplinary action:

    
    

    (d) Willfully or deliberately disregarding and violating the applicable building codes or laws of the state, this board, or of any municipality or county of this state;

    * * *

    (h) Committing mismanagement or misconduct in the practice of contracting that causes harm to a customer;

    * * *

    1. Being found guilty of fraud or deceit or of gross negligence, incompetency, or misconduct in the practice of contracting or;

    2. Proceeding on any job without obtaining applicable local building department permits and inspections.

    
    

15. The evidence here presented is clear and convincing that in failing to pull a permit which included the roof work and total cost of the contract, in placing plywood over the existing aluminum roof rather than replacing the roof as the contract called for, failing to repair the roof when leaks were reported, and requiring the home owner to have additional costs to correct the problem, Respondent violated the above quoted provisions of the statute.

    
    

16. Section 24(5) authorizes the board to suspend the certificate holder or registrant from all operations as a contractor for a fixed period of time, to revoke a certificate or registration, and impose an administrative fine or penalty not to exceed $1,000 on any contractor found guilty of the above listed offenses.

Having considered all evidence submitted and the gravity of the offenses it

is

RECOMMENDED:

That the license of John Rosati, Jr. as a residential building contractor

be suspended for a period of six months.

DONE and ENTERED this 6th day of February, 1991, in Tallahassee, Florida.

K.N. AYERS 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 6th day February, 1991.

COPIES FURNISHED:

Sarah Richardson, Esquire Board of County Commissioners Pinellas County

315 Court Street Clearwater, FL 34616

James Rosati, Jr.

109 Harbor View Lane Largo, FL 34640

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: 90-006828

Orders for Case No: 90-006828