STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF PROFESSIONAL )

REGULATION, CONSTRUCTION )

INDUSTRY LICENSING BOARD, )

)

Petitioner, )

)

vs. ) CASE NO. 90-7120

)

RICHARD MCDOUGAL, )

)

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 March 28, 1991, in Chipley, Florida.

APPEARANCES

For Petitioner: Robert B. Jurand, Esquire

Department of Professional Regulation The Northwood Centre, Suite 60

1940 N. Monroe St.

Tallahassee, Florida 32399-0792

For Respondent: Richard McDougal, pro se

P.O. Box 10277

Panama City, Florida 32404 STATEMENT OF THE ISSUES

The issue for determination is whether Respondent, licensed as a registered roofing contractor, committed a violation of Section 489.129(1)(m), Florida Statutes, sufficient to justify the imposition of disciplinary sanctions against his license.

PRELIMINARY STATEMENT

On June 4, 1990, Petitioner issued an Administrative Complaint charging Respondent with the offense of gross negligence, misconduct, or incompetence in the practice of contracting in connection with a roofing job undertaken by Respondent.

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 February 20, 1991, the final hearing was continued until March 28, 1991, at Respondent's request.

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

10 evidentiary exhibits. Respondent presented testimony of two witnesses, including himself, but no evidentiary exhibits.

A transcript of the hearing was requested of the court reporter by counsel for Petitioner. Although entry of a recommended order was delayed pending the filing of that transcript with the Division of Administrative Hearings, Petitioner's request for a transcript was eventually deemed to have been waived by order of the undersigned dated October 31, 1991. The parties were apprised by content of that order that any proposed recommended orders/proposed findings of fact were to be submitted for consideration by the undersigned no later than November 15, 1991. Proposed findings were submitted by Petitioner and are addressed in the appendix to this recommended order. No proposed findings were timely submitted by Respondent and none had been received at the time of preparation of this recommended order.

FINDINGS OF FACT

1. Respondent is Richard McDougal, holder, at all times pertinent to these proceedings, of registered roofing contractor license no. RC 0050466.

   
   

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 D & R Roofing Co., at all times pertinent to these proceedings.

   
   

4. On July 31, 1989, Arla Jackson signed and accepted Respondent's written proposal to re-roof a house belonging to Jackson, located in Washington County, Florida. Prior to engaging Respondent to re-roof the house, Jackson had only a minimal amount of leakage in a couple of corners inside the house.

   
   

5. Under the terms of the written proposal provided by Respondent to Jackson, Respondent agreed to remove the old roof covering from the structure; install a new three ply fiberglass felt covering; install new eave metal around the roof perimeter; extend the roof a short distance at one end; and top coat a utility building on the premises. Further, Respondent agreed to haul away debris resulting from the job.

   
   

6. Completion of the roofing project by Respondent and receipt of payment from Jackson in the amount of $3,000 occurred on August 9, 1989. $2,900 of this amount was payment to Respondent for replacing the old roof while the remainder satisfied charges by Respondent for additional work required to extend the roof.

   
   

7. Shortly after Respondent's completion of the roof replacement, Jackson began to telephone Respondent, requesting that he come and repair holes in the roof that were leaking water as the result of rain.

   
   

8. Respondent came to Jackson's house on at least three occasions to attempt to stop leaks in the roof. He eventually determined that he had stopped the leaks and told Jackson that, as far as he was concerned, there was no roof leakage problem.

9. Jackson's flat roof continued to leak. Eventually, Gus Lee, an unlicensed roofing assistant to H.M. Strickland, a local licensed contractor, agreed to repair her roof and eliminate the leakage problem. Strickland's signature appears with Lee's on written documentation bearing the date of October 1, 1989, and promising a "fine roof with no leaks; and I will stand behind it."

   
   

10. Jackson accepted the Strickland offer. Jackson paid approximately

    $1,925.00 to Lee for work in connection with replacing the roof and painting the interior ceiling of the house. She paid an additional $653.79 for building supplies in connection with the project.

    
    

11. Overall, Jackson paid approximately $2,578.79 for labor and materials to re-roof her house and repair the interior ceiling damage resulting from the leakage. This amount was in addition to the amount previously paid to Respondent.

    
    

12. On October 20, 1989, Lee, the unlicensed assistant to Strickland and the person who actually undertook the task of re-roofing Jackson's house, removed the previous roofing material placed on Jackson's house by Respondent.

    
    

13. Lee observed no fiber glass felt covering material on Jackson's roof at the time he re-roofed the house. Lee's testimony at hearing was credible, candid and direct. Although unlicensed as a contractor, Lee's attested experience supports his testimony regarding what he observed and establishes that Respondent failed to comply with his agreement to Jackson to provide fiber glass felt during the initial roofing of the house and instead used a less expensive material.

    
    

14. Lee's testimony, coupled with that of Jackson and Lee's son, also establishs that significant damage had occurred to the interior ceiling of Jackson's house as the result of leakage after completion of work by Respondent.

    
    

15. After Lee completed the re-roofing of Jackson's home, inclusive of use of a six ply felt covering on the roof accompanied by pea gravel and sealant, the roof's leakage stopped.

    
    

    CONCLUSIONS OF LAW

    
    

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

    
    

17. Section 489.129(1), Florida Statutes, authorizes Petitioner to take disciplinary action against a licensed contractor. Disciplinary action may include 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.

    
    

18. 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 "gross negligence, incompetency, or misconduct in the practice of contracting."

19. Respondent is charged in the Administrative Complaint filed in this case with exhibiting gross negligence, misconduct or incompetence in connection with his failure to construct a reasonably watertight roof in accordance with his contract with Jackson. The Administrative Complaint further alleges that Respondent's failure contributed to interior damage of Jackson's house.

    
    

20. 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).

    
    

21. The proof clearly and convincingly establishes that Respondent was grossly negligent in his performance of the roof repairs made to Jackson's home pursuant to the contract entered into between them. The proof further establishes that the work performance of Respondent was incompetent.

    
    

22. 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.

    
    

23. Rule 21E-17.001(19)(b), Florida Administrative Code, states that the usual penalty to be imposed for a first offense of gross negligence and incompetence in the practice of contracting which causes monetary harm to a customer is a fine. Petitioner's Rule states that the fine may range from $500 to $1500.

    
    

24. Pursuant to the penalty guidelines set forth in Rule 21E-17.001, Petitioner urges imposition of an administrative fine in the amount of $1500. Petitioner's position is amply justified.

RECOMMENDATION

Based on the foregoing, it is hereby

RECOMMENDED that a Final Order be entered imposing an administrative fine of $1500 upon Respondent's license as a registered roofing contractor.

DONE AND ENTERED this 25th day of November, 1991, in Tallahassee, Leon County, Florida.

DON W. DAVIS

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 25th day of November, 1991.

APPENDIX TO RECOMMENDED ORDER

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.-4. Adopted, though not verbatim.

5.-8. Subordinate to Hearing Officer's Conclusions. 9.-11. Adopted in substance, though not verbatim.

Respondent's Proposed Findings. None submitted.

COPIES FURNISHED:

Robert B. Jurand, Esq.

Department of Professional Regulation The Northwood Centre, Suite 60

1940 N. Monroe St. Tallahassee, FL 32399-0792

Richard McDougal

1. Box 10277

   Panama City, FL 32404

   
   

   Daniel O'Brien, Executive Director Construction Industry Licensing Board Department of Professional Regulation Post Office Box 2

   Jacksonville, FL 32201

   
   

   General Counsel

   Department of Professional Regulation The Northwood Centre, Suite 60

   1940 N. Monroe St. Tallahassee, FL 32399-0750

   
   

   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. Some agencies allow a larger period within which to submit written exceptions. You should consult with 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.

   ================================================================= AGENCY FINAL ORDER

   =================================================================

   
   

   STATE OF FLORIDA BOARD DEPARTMENT OF PROFESSIONAL REGULATION CONSTRUCTION INDUSTRY LICENSING BOARD

   
   

   DEPARTMENT OF PROFESSIONAL REGULATION,

   
   

   Petitioner,

   
   

   vs. CASE NO.: 89-10399

   DOAH CASE NO.: 90-7120

   
   

   RICHARD MCDOUGAL,

   LICENSE NO.: RC 0050466,

   
   

   Respondent.

   /

   
   

   FINAL ORDER

   
   

   THIS MATTER came before the Construction Industry Licensing Board (hereinafter referred to as the "Board") pursuant to Section 120.57(1)(b)(9), Florida Statutes, on March 11, 1993, in Jacksonville, Florida, for consideration of the Recommended Order (a copy of which is attached here to and incorporated herein by reference). The Petitioner was represented by Wellington Meffert.

   The Respondent appeared pro se at the Board meeting.

   
   

   Upon consideration of the Hearing Officer's Recommended Order, and the arguments of the parties and after a review of the complete record in this matter, and the exceptions filed, the Board makes the following:

   
   

   FINDINGS OF FACT

   
   

   1. The Hearing Officer's Findings of Fact are hereby approved and adopted in toto.

      
      

   2. There is competent, substantial evidence to support the Hearing Officer's Findings of Fact.

CONCLUSIONS OF LAW

1. The Board has jurisdiction of this matter pursuant to the provisions of Section 120.57(1), and Chapter 489, Florida Statutes.

   
   

2. The Hearing Officer's Conclusions of Law are hereby approved and adopted except where they are in conflict with Petitioner's Exceptions to Recommended Order which is hereby approved and adopted and incorporated herein by reference.

3. Respondent is guilty of violating Section 489.129(1)(m), Florida Statutes.

   
   

4. The penalty recommended by the Hearing Officer is hereby approved and expanded to include the additional penalties requested in Petitioner's Exceptions to Recommended Order for those reasons stated in said document.

   
   

5. There is competent, substantial evidence to support the Board's findings and conclusions.

THEREFORE, IT IS HEREBY ORDERED AND ADJUDGED:

Respondent shall pay to the Board a fine of one thousand five hundred dollars ($1,500.00), and provide written proof satisfactory to the Board's Executive Director of having paid restitution of two thousand five hundred seventy eight dollars and seventy nine cents ($2,578.79) to Arla Jackson of Washington County, Florida. Said fine and restitution shall be paid in thirty

(30) days.

To assure payment of the fine and restitution, it is further ordered that all of Respondent's licensure to practice contracting shall be suspended with the imposition of the suspension being stayed for thirty (30) days. If the ordered fine and restitution are paid within that thirty (30) day period, the suspension imposed shall not take effect. If the licensee does not pay the fine and restitution, within the required period, then immediately upon expiration of the stay, he shall surrender his licensure to an investigator of the Department of Professional Regulation or shall mail it to the Board offices. Upon payment of the fine and restitution after the thirty (30) days, the suspension imposed shall be lifted; in no event shall Respondent resume use of Respondent's licensure under this provision until notified in writing by the Executive Director that said licensure has been restored to good standing.

In addition, the Respondent will be required to pay interest on fines due to the Board at a rate of 18 percent per annum, beginning on the thirty-first (31st) day after the issuance of the final order.

Pursuant to Section 120.59, Florida Statutes, the Parties are hereby notified that they may appeal this Final Order by filing one copy of a Notice of Appeal with the Clerk of the Department of Professional Regulation, Northwood Centre, 1940 N. Monroe Street, Tallahassee, Florida 32399-0792, and by filing the filing fee and one copy of the Notice of Appeal with the District Court of Appeal within thirty (30) days of the effective date of this Order

This Order shall become effective upon filing with the clerk of the Department of Professional Regulation.

DONE AND ORDERED this 13th day of April, 1993.

CARLOS LOPEZ-CANTERA,

Chairman Construction Industry Licensing Board

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a true and correct copy of the foregoing Final Order has been provided by U.S, Mail to

Richard McDougal Richard McDougal

Post Office Box 10277 1449 Kraft Avenue

Panama City, Florida 32401 Panama City, Florida 32401

and by hand delivery/United States Mail to the Board Clerk, Department of Professional Regulation and its Counsel, Northwood Centre, 1940 North Monroe Street, Tallahassee, Florida 32399-0792, on or before 5:00 p.m., this 13th day of April, 1993.

Docket for Case No: 90-007120

Orders for Case No: 90-007120