STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

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

)

Petitioner, )

)

vs. ) CASE NO. 92-7432

)

ERNEST E. LEE, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to written notice, a formal hearing was held in this case before Larry J. Sartin, a duly designated Hearing Officer of the Division of Administrative Hearings, on May 10, 1993, in St. Augustine, Florida.

APPEARANCES

For Petitioner: G. W. Harrell

Senior Attorney

Department of Professional Regulation 1940 North Monroe Street

Tallahassee, Florida 32399-0792

For Respondent: Ernest E. Lee, pro se

228 Charlotte Street

St. Augustine, Florida 32084 STATEMENT OF THE ISSUES

Whether the Respondent, Ernest E. Lee, committed the offenses alleged in an Administrative Complaint entered by the Department of Professional Regulation on November 22, 1992, and, if so, what discipline should be imposed against Mr.

Lee's Florida registered general contractor's license?

PRELIMINARY STATEMENT

The Petitioner, the Department of Professional Regulation (hereinafter referred to as the "Department") filed an Administrative Complaint before the Construction Industry Licensing Board against the Respondent, Ernest E. Lee, on or about November 22, 1992. In the Administrative Complaint, it was alleged that Mr. Lee had violated certain laws governing his conduct as a licensed registered general contractor.

On or about December 10, 1992, Mr. Lee filed an Election of Rights form with the Department disputing the allegations of fact contained in the Administrative Complaint and requesting a formal administrative hearing. Mr. Lee's request for hearing was forwarded to the Division of Administrative

Hearings with a request that a Hearing Officer be assigned to conduct a formal administrative hearing on the Administrative Complaint. The request was filed with the Division of Administrative Hearings on December 16, 1992.

The final hearing of this matter was scheduled for March 8, 1993, by a Notice of Hearing entered January 25, 1993. On February 22, 1993, the Department filed a Motion for Continuance. The Department represented that it needed additional time to complete discovery. The Department also represented that Mr. Lee had rejected attempts to discuss the matter. The undersigned was required to wait until March 8, 1993, to give Mr. Lee an opportunity to respond before ruling on the requested continuance. In light of the fact that the hearing was scheduled for March 8, 1993, the undersigned attempted to contact Mr. Lee to determine if he had any objection to a continuance. Those efforts proved fruitless. Mr. Lee refused to return the undersigned's telephone calls. The undersigned granted the continuance and cancelled a scheduled deposition by the Department of Mr. Lee. The final hearing was rescheduled for May 10, 1993.

At the final hearing the Department presented the testimony of Joyce Ann Rogero, Richard B. Crab, Jerod Meeks, Tom Smead, and Michael Griffin. Mr. Meeks was accepted as an expert in commercial roofing applications. Thirty exhibits were offered by the Department and were accepted into evidence.

Mr. Lee did not present any evidence. On March 30, 1993, Mr. Lee filed a "Declaration of Rights". In this pleading Mr. Lee indicated that he intended to rely on his constitutional right against self-incrimination. On April 8, 1993, the Department filed a Motion to Preclude Testimony and Exhibits. By written notice, the undersigned scheduled a telephone hearing to insure that Mr. Lee understood the consequences of his assertion of his right against self- incrimination. The undersigned wanted to insure that Mr. Lee understood that he could not assert his Fifth Amendment right against self-incrimination prior to the hearing to avoid discovery requests of the Department and then testify or present exhibits requested during discovery at the final hearing. Mr. Lee refused to participate in the telephone hearing. Mr. Lee did not, however, request to present evidence during the final hearing.

A transcript of the final hearing was ordered by the Department. The parties were informed that proposed recommended orders were required to be filed, if a party wished to file a proposed recommended order, within ten days of the date of a letter of the court reporter transmitting the transcript for filing. The court reporter's letter was dated May 18, 1993 and a copy was mailed to both parties. Proposed recommended orders were, therefore, due on or before May 28, 1993. On May 28, 1993, the Department and Mr. Lee filed separate proposed recommended orders containing proposed findings of fact. A ruling on each proposed finding of fact has been made either directly or indirectly in this Recommended Order, or the proposed finding of fact has been accepted or rejected in the Appendix, which is attached hereto.

In the proposed recommended order filed by the Department, the Department has dismissed counts II and IV of the Administrative Complaint.

Mr. Lee has attached documents to his proposed recommended order which were not offered into evidence during the final hearing despite inquiry by the undersigned during the final hearing as to whether Mr. Lee intended to offer any exhibits. See page 116-119 of the Transcript of the Final Hearing. Mr. Lee was asked several times whether he intended to rely on any documents other then the exhibits which had been accepted into evidence at the final hearing. The following is the last time that Mr. Lee was questioned and his response:

THE HEARING OFFICER: There is nothing else other than what's cited in [the Administrative Complaint]; is that correct?

MR. LEE: Yes, sir. I will just go through the counts, cite the rules and cite the document it pertains to which you have in your evidence.

Lines 5-9, Page 119, Transcript of Final Hearing. Mr. Lee apparently understood that additional evidence could not be relied upon in this matter and failed to offer any evidence. Therefore, the documents and any other evidence relied upon by Mr. Lee in his recommended order not presented at the final hearing of this matter has not been considered in making findings of fact in this Recommended Order.

FINDINGS OF FACT

1. The Parties.

   
   

   1. The Petitioner is an agency of the State of Florida charged with responsibility for regulating and disciplining, among others, licensed registered general contractors in the State of Florida. Section 20.30, and Chapters 120, 455 and 489, Florida Statutes.

      
      

   2. At all times relevant to this proceeding, the Respondent, Ernest E. Lee, was licensed as a registered general contractor in the State of Florida. Mr. Lee holds license number 0052441. Mr. Lee was registered to do business as an individual. DPR exhibit 1. At no time relevant to this proceeding was Mr. Lee licensed as a roofing contractor.

      
      

2. Mr. Lee's First Contract with Mr. and Mrs. Rogero.

1. On or about February 14, 1991, Joyce A. Rogero accepted a proposal dated February 11, 1991 (hereinafter referred to as the "First Contract"), from Mr. Lee for construction management on a building owned by Albert L. and Joyce

   1. Rogero. DPR exhibit 3. The Rogero's building is located at 142 King Street, St. Augustine, St. Johns County, Florida (hereinafter referred to as the "Rogero Property"). The Rogero Property was being used as an automobile parts retail shop and jobber's outlet. There was also a mechanic's shop in the rear of the Rogero Property which the Rogero's leased.

      
      

2. Pursuant to the First Contract, Mr. Lee was to be paid $150.00 upon acceptance of the proposal and $10.00 per hour for all work performed by Mr. Lee, with a minimum of one hour per work day until the First Contract was fulfilled or cancelled. DPR exhibit 3.

   
   

3. On or about February 21, 1991, Mr. Lee filed a Notice of Commencement with the St. Johns County Planning and Building Department concerning the First Contract. In the notice Mr. Lee described the work to be performed as "[r]eplace decayed wood repair roof as necessary." DPR exhibit 5.

   
   

4. On or about February 21, 1991, Mr. Lee filed an Application for Building Permit with the City of St. Augustine for the work to be performed on the Rogero Property. DPR exhibit 18. See also DPR exhibit 20. Mr. Lee described the work to be performed as follows:

   1. Remove all roof gutters - 2. Remove decayed wood & replace 3. Frame in gable ends - 4. Point up cracks in masonry exterior walls 5. Install new garage door

      (See plans)

      
      

      On or about March 6, 1991, the City of St. Augustine issued a building permit to Mr. Lee for the Rogero Property. DPR exhibit 19. The only roof work mentioned by Mr. Lee in the permit and permit application was incidental work caused by the demolition of part of the Rogero Property.

      
      

5. Work was performed on the Rogero Property pursuant to the First Contract by Mr. Lee and Jim Rogers. For these services, Mr. Lee was paid

   $848.39 between February 14, 1991 and March 15, 1991. Mr. Rogers was paid

   $1,432.00 between February 14, 1991 and March 22, 1991. DPR exhibit 4.

   
   

   1. Work Performed by Jim Rogers.

      
      

6. The evidence in this case failed to prove whether Mr. Rogers was an employee of Mr. Lee or was acting as an independent contractor. While Jim Rogers performed work pursuant to the First Contract under the supervision of Mr. Lee, Mr. Rogers was paid directly by the Rogeros for the hours he worked.

   
   

7. At all time relevant to this proceeding, Jim Rogers was not licensed to perform construction contracting in the State of Florida. See DPR exhibit 2.

   
   

   1. Mr. Lee's Second Contract with Mr. and Mrs. Rogero.

      
      

8. While performing the work called for by the First Contract, Mr. Lee attempted to repair leaks above a store room in the Rogero Property without much success. The roof did not leak over the mechanic's shop at the time that Mr. Lee was performing the work on the First Contract.

   
   

9. During the summer of 1991 the Rogero Property roof still leaked. Upon inquiry by the Rogeros, Mr. Lee informed the Rogeros that the roof would have to be replaced to prevent further leaking.

   
   

10. On June 10, 1991, Mr. Lee submitted a proposal to Mr. Rogero for completion of the following work:

    
    

    1. Install 1 x 4 P.T. purling over existing roof.

    2. Install V crimped roofing to purlings.

    3. Flash three sides - south - west - east to existing structure.

    4. Refill pitch pockets.

    
    

    DPR exhibit 7. Pursuant to this proposal, Mr. Lee offered to construct a metal roof over the existing flat portion of the roof of the Rogero Property. Mr. Lee assured the Rogeros that the metal roof would correct the leaking problem.

    
    

11. The June 10, 1991, proposal (hereinafter referred to as the "Second Contract"), which was accepted by the Rogeros, provided for the payment to Mr. Lee of $2,000.00 upon acceptance and $500.00 upon completion of the work. DPR exhibit 7.

12. Mr. Lee did not apply for, or obtain, any permit from the City of St. Augustine for the work to be performed pursuant to the Second Contract. Nor did the permit issued for the First Contract authorize the roof work Mr. Lee was to perform, or that he actually performed, pursuant to the Second Contract.

    
    

13. Mr. Lee proceeded to begin construction of a metal roof over the existing flat portion of the roof on the Rogero Property. As work progressed on this portion of the roof, heavy leakage from the roof over the mechanic's garage began for the first time.

    
    

14. After leaks in the roof occurred in other parts of the Rogero Property, Mr. Lee suggested that it would be necessary to construct the metal roof over the rest of the roof of the Rogero Property. It was agreed, therefore, that the entire roof of the Rogero Property would be covered by a metal roof.

    
    

15. As Mr. Lee began to sheath over the hip portion of the roof of the Rogero's Property, the leakage became worse.

    
    

16. The Rogeros paid Mr. Lee a total of $6,000.00 for the work he performed on the roof. DPR exhibit 8.

    
    

    1. Stop Work Order.

       
       

17. Following receipt of a complaint by the City of St. Augustine Building Department from a general contractor about the construction at the Rogero Property, a City of St. Augustine inspector visited the Rogero Property. As a result of this site visit, the City of St. Augustine issued a Stop Work Order for Violation form ordering that construction on the Rogero Property be stopped. DPR exhibit 9. Work was ordered stopped because Mr. Lee had failed to obtain a permit for the "new roof over existing roof." DPR exhibit 9.

    
    

18. Following issuance of the work stop order, Michael Griffin, Chief Building Inspector for the City of St. Augustine, became concerned about the appropriateness of the metal roofing material being used by Mr. Lee to re-roof the Rogero Property and the fact that Mr. Lee was not a licensed roofing contractor. The City of St. Augustine building code required that the type of work Mr. Lee was performing be performed by a licensed roofing contractor. The building code also required that metal roofing material for a building such as the Rogero Property be of a minimum gauge of 29. The metal being used by Mr. Lee was 31-32 gauge, a lower, and unacceptable, gauge for such roofing material.

    
    

19. On August 2, 1991, Mr. Griffin informed Mr. Lee that the grade of the metal roofing material he was using on the Rogero Property was in violation of the City of St. Augustine's building code. See DPR exhibit 26. Rather than correct the deficiency, Mr. Lee filed an application for a variance from the code's metal roofing material requirements. DPR exhibit 27.

    
    

20. As a result of the stop work order, and after being told that the metal roofing material was inadequate and learning that Mr. Lee had requested permission to continue to use the material, the Rogeros terminated Mr. Lee's work on the Rogero Property by letter dated August 15, 1991. DPR exhibit 10.

    
    

    1. Completion of the Roof on the Rogero Property.

21. Following the termination of Mr. Lee's work on the roof, the Rogeros contacted two licensed roofing contractors. Mr. Lee did not, however, subcontract with a licensed roofing contractor.

    
    

22. On August 20, 1991, the Rogeros contracted with Arnett Roofing (hereinafter referred to as the "Arnett Contract"), to remove the roofing material installed by Mr. Lee and to construct a built-up, shingled roof. DPR exhibit 11. The Arnett Contract provided that the Rogeros were to pay

    $16,000.00 for the agreed work.

    
    

23. The Rogeros ultimately paid a total of $20,565.00 to Arnett Roofing for work associated with the roof on the Rogero Property: $1,836.00 for removal of the roof material Mr. Lee had placed on the Rogero Property; and $18,729.00 for the installation of a new roof. See DPR exhibits 12, 13 and 14. The roofing material Mr. Lee placed on the Rogero Property had to be removed.

    
    

24. The roof work performed by Mr. Lee suffered from the following deficiencies:

    
    

    1. The material used on part of the roof (the flat portion) was improper in light of the slope of the roof;

       
       

    2. The gauge of the metal roofing material used by Mr. Lee was insufficient for the Rogero Property;

       
       

    3. The flashings were improperly installed and would not prevent leaking;

       
       

    4. There was a substantial amount of rotten wood underneath portions of the new roof Mr. Lee had already installed. Strips of 1 x 4 wood that Mr. Lee planned to attach the metal roof to had been nailed to areas of the roof with obviously rotten wood.

    
    

25. The rotten wood on the Rogero Property should have been noticed and replaced by Mr. Lee. Because of the amount of rotten wood on the roof of the Rogero Property, and Mr. Lee's failure to remove it, the Rogero Property would have been dangerous had Mr. Lee completed his roof work. The roof that Mr. Lee was installing also would not have prevented further leaking.

    
    

26. The Rogeros were also required to contract for the services of a general contractor in order to obtain a permit from the City of St. Augustine to complete the roof work and to complete other work which Mr. Lee had begun during the First Contract. The total amount paid for these services by the Rogeros was

    $3,222.61. See DPR exhibit 15. The evidence failed to prove what portion of this amount was caused by Mr. Lee's improper conduct in performing the Second Contract.

    
    

    1. Mr. Lee's Code Violations.

       
       

27. The City of St. Augustine has adopted, and requires compliance with, the 1988 Standard Building Code. DPR exhibit 21.

    
    

28. Section 103 of the 1988 Standard Building Code provides the following:

    
    

    A person, firm or corporation shall not erect, construct, enlarge, alter, repair, move, improve, remove, convert or demolish any building or structure in the applicable

    jurisdiction, or cause the same to be done, without first obtaining a building permit for such building or structure from the Building Official.

    
    

    DPR exhibit 22. Mr. Lee violated Section 103 of the 1988 Standard Building Code, and, therefore, violated the building code of the City of St. Augustine.

    
    

29. Section 706 of the 1988 Standard Building Code adopts the "SBCCI Standard for the Installation of Roof Coverings." DPR exhibit 23. Section

    111.1.2 of the SBCCI Standard for the Installation of Roof Coverings provides the following:

    
    

    Galvanized sheet metal shall be 0.0172-inch (29 ga) thick or heavier, .90 oz (total weight both sides) zinc coating per sq. ft.

    
    

    DPR exhibit 24. The metal used by Mr. Lee on the Rogero Property roof did not comply with Section 111.1.2 of the SBCCI Standard for the Installation of Roof Coverings and, therefore, Mr. Lee violated the building code of the City of St. Augustine.

    
    

    1. Mr. Lee's Reaction to His Dismissal by the Rogeros and the Rogero's Complaint to the Department.

    
    

30. In June of 1991, after the Rogeros had filed a complaint with the Department concerning Mr. Lee, Mr. Lee sent a letter to the Rogeros and several building department officials of the City of St. Augustine threatening the following:

    
    

    THIS INSTRUMENT IN PRESENTED PURSUANT TO CHAPTERS 770 AND 836 FLA. STAT. 1989.

    
    

    NOTICE IS HEREBY GIVEN OF MY INTENT TO FILE A COMPLAINT IN THE STATE OF FLORIDA CIRCUIT COURT IN ST. JOHNS COUNTY.

    
    

    THE TIME ACCRUAL PERIOD WILL COMMENCE UPON RECEIPT OF THIS NOTICE.

    
    

    ACTION WILL BE BASED ON THE PUBLICATION OF ITEMS 1, 2, 3, 4, 5 AND 6, CONTAINED HEREIN AND WILL BE RELATED TO THE TORT OF DEFAMATION AS PER CHAPTERS 770 AND 836, FLA. STAT. 19189.

    
    

    DPR exhibit 16.

    
    

31. By letter dated August 16, 1991, Mr. Lee requested the following action be taken by the City of St. Augustine:

    
    

    I HAVE LOST CONTROL OF THE CONSTRUCTION ACTIVITIES OCCURRING AT 142 KING ST.

    
    

    I REQUEST THAT YOU ISSUE A STOP WORK ORDER ON ALL ACTIVITIES.

    
    

    DPR exhibit 28.

32. Mr. Lee has made no effort to make restitution to the Rogeros for any damages incurred by them.

    
    

    I. Costs.

    
    

33. The Department incurred $4,319.41 in costs associated with the investigation and prosecution of this matter.

    
    

    CONCLUSIONS OF LAW

    
    

    1. Jurisdiction.

       
       

34. The Division of Administrative Hearings has jurisdiction of the parties to and the subject matter of this proceeding. Section 120.57(1), Florida Statutes (1992 Supp.).

    
    

    1. The Department's Charges.

       
       

35. The Administrative Complaint against Mr. Lee contains six counts. The Department dismissed Counts II and IV in the Department's proposed recommended order filed in this case.

    
    

36. Section 489.129, Florida Statutes, authorizes the Department to take disciplinary action against licensed contractors if they commit certain acts specified in Sections 489.129(1)(a) through (p), Florida Statutes. The Department has alleged that Mr. Lee has committed the acts specified in Sections 489.129(1)(d), (e), (j) and (m), Florida Statutes.

    
    

    1. Burden of Proof.

       
       

37. The burden of proof, absent a statutory directive to the contrary, is on the party asserting the affirmative of the issue of the proceeding. Antel v. Department of Professional Regulation, 522 So.2d 1056 (Fla. 5th DCA 1988); Department of Transportation v. J.W.C. Co., Inc. 396 So.2d 778 (Fla. 1st DCA 1981); and Balino v. Department of Health and Rehabilitative Services, 348 So.2d

    249 (Fla. 1st DCA 1977).

    
    

38. In this proceeding it is the Department that is asserting the affirmative. Therefore, the burden of proof was on the Department.

    
    

    1. Count I; Performing Roofing Work.

       
       

39. Section 489.129(1)(j), Florida Statutes, authorizes disciplinary action against any contractor that is guilty of the following:

    
    

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

    
    

40. In Count I the Department has alleged that Mr. Lee violated Section 489.129(1)(j), Florida Statutes, by contracting for, and performing, roofing work in violation of Sections 489.105, 489.113(3) and 489.117(2), Florida Statutes.

    
    

41. Section 489.105, Florida Statutes, provides, in pertinent part, the following:

    1. "Contractor" means the person who is qualified for and responsible for the entire project contracted for and means, except as exempted in this part, the person who, for compensation, undertakes to, submits a bid to, or does himself or by others construct, repair, alter, remodel, add to, subtract from, or improve any building or structure, including related improvements to real estate, for others or for resale to others. Contractors are subdivided into two divisions, Division I, consisting of those contractors defined in paragraphs (a)-(c) . . . .

       
       

       1. "General contractor" means a contractor whose services are unlimited as to the type of work which he may do, except as provided in this part.

          
          

          Pursuant to this provision, Mr. Lee, as a general contractor, is authorized to perform essentially any construction services "except as provided in [Part I, Chapter 489, Florida Statutes]."

          
          

42. Section 489.117(1), Florida Statutes, authorizes a contractor to perform only that work for which the contractor has obtained a certificate:

    
    

    (1)(a) The department shall issue a certificate or registration to each person qualified by the board and upon receipt of the original license fee.

    1. Certification allows the certificateholder to engage in contracting only for the type of work covered by the certificate.

    
    

43. Section 489.113(3), Florida Statutes, provides the following limitation on the services which a contractor may perform:

    
    

    (3) A contractor shall subcontract the . . .

    roofing . . . work for which a local examination for a certificate of competency or a license is required, unless such contractor holds a state certificate of competency or license of the respective trade category, as required by appropriate local authority. However, a general . . .

    contractor shall not be required to subcontract the installation of wood shingles, wood shakes, or asphalt or fiberglass shingle roofing materials on a new building of his own construction . . . .

    
    

44. The foregoing provisions require that general contractors subcontract roofing work with one limited exception. That exception does not apply in this case; Mr. Lee did not perform work on a "new building of his own construction .

    . . ." Mr. Lee performed work on an existing structure. The evidence proved that Mr. Lee was certified only as a registered general contractor. Mr. Lee was

    not certified as a roofing contractor. Despite the lack of qualification to perform roofing work, Mr. Lee entered into a contract to provide roofing work, he failed to subcontract the roofing work to a qualified roofing contractor and he proceeded to perform roofing work on the Rogero Property.

    
    

45. Mr. Lee has suggested that "Respondent did intend to subcontract waterproofing." See page 3 of Mr. Lee's proposed recommended order. The evidence failed to support this proposed fact. Nor would Mr. Lee's "intent" matter in light of the fact that he did not carry out his alleged intent by subcontracting any roofing work and the fact that Mr. Lee proceeded to perform roofing work himself.

    
    

46. Mr. Lee also has suggested that he was prevented from engaging a roofing subcontractor. Again, the evidence failed to prove that Mr. Lee was prevented from engaging a roofing subcontractor until after the Rogeros terminated Mr. Lee's services by letter dated August 15, 1991. See DPR exhibit

1. This termination letter was sent by the Rogeros after Mr. Lee had entered into a contract to perform the roof work (June 10, 1991), after the stop work order had been issued (July 11, 1991), after Mr. Lee had been paid $6,000.00 for roofing work and after Mr. Lee had performed substantial, but unsatisfactory, roofing work.

   
   

   1. Based upon the foregoing, it is concluded that Mr. Lee violated Section 489.129(1)(j), Florida Statutes, by performing roofing work which he was not qualified to perform in violation of Sections 489.105(3), 489.113(3) and 489.117, Florida Statutes.

      
      

      1. Count III; Mr. Rogers' Work.

         
         

   2. Section 489.129(1)(e), Florida Statutes, authorizes disciplinary action if a contractor is guilty of:

      
      

      (e) Performing any act which assists a person or entity in engaging in the prohibited uncertified and unregistered practice of contracting, if the certificateholder or registrant knows or has reasonable grounds to know that the person or entity was uncertified and unregistered.

      
      

   3. In Count III, the Department has alleged that Mr. Lee violated Section 489.129(1)(e), Florida Statutes, by allowing Mr. Rogers to assist him in performing roofing work.

      
      

   4. The Department has suggested that Mr. Rogers was not Mr. Lee's employee, that Mr. Rogers' work constituted construction contracting and, therefore, Mr. Lee assisted a person to engage in the practice of contracting without qualification.

      
      

   5. The evidence in this case failed to prove whether Mr. Rogers was an employee of Mr. Lee or an independent contractor. The only evidence concerning Mr. Rogers' status, which indicated that Mr. Rogers was not acting as an employee, was the fact that the Rogeros paid Mr. Rogers directly. This fact alone is not sufficient to prove that Mr. Rogers was not an employee of Mr. Lee, or that Mr. Lee was simply attempting to avoid having to treat Mr. Rogers as an employee for workers' compensation insurance and tax purposes.

   6. The Department failed to prove that Mr. Lee violated Section 489.129(1)(e), Florida Statutes.

      
      

      1. Count V: Violations of Building Codes.

         
         

   7. Section 489.129(1)(d), Florida Statutes, authorizes disciplinary action if a contractor is guilty of:

      
      

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

      
      

   8. In Count V, the Department has alleged that Mr. Lee violated Section 489.129(1)(d), Florida Statutes, by failing to obtain a building permit for the roof work on the Rogero Property, and for failing to perform the roof work on the Rogero Property in conformance with the City of St. Augustine building code.

      
      

   9. The evidence in this case proved that Mr. Lee failed to obtain a building permit for the roofing work he performed on the Rogero Property. The only building permit he obtained concerning the Rogero Property was obtained in March 1991. DPR exhibit 19. The application for the March 1991, permit was filed as result of the First Contract and long before the Second Contract was entered into. The application for the building permit associated with the First Contract made no mention of the roofing work performed by Mr. Lee on the Rogero Property pursuant to the Second Contract.

      
      

   10. Failing to obtain a permit for the roofing work constituted a violation of Section 103 of the 1988 Standard Building Code, which has been adopted by the City of St. Augustine as part of its building code.

       
       

   11. The City of St. Augustine building code, by adopting the 1988 Standard Building Code, also requires that the installation of roof coverings be installed consistent with Section 111.1.2 of the SBCCI Standard for the Installation of Roof Coverings. This provision requires that the gauge of sheet metal used as a roofing material be 29 gauge. The material used by Mr. Lee on the Rogero roof was of an inferior gauge. The material was, therefore, in violation of the City of St. Augustine building code.

       
       

   12. Based upon the foregoing, it is concluded that Mr. Lee committed two violations of Section 489.129(1)(d), Florida Statutes, by failing to obtain a building permit for the roof work on the Rogero Property and by failing to use adequate roofing materials in violation of the City of St. Augustine building code.

       
       

       1. Count VI: Gross Negligence, Incompetency or Misconduct.

          
          

   13. Section 489.129(1)(m), Florida Statutes, authorizes disciplinary action if a contractor is guilty of:

       
       

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

       
       

   14. In Count VI, the Department has alleged that Mr. Lee violated Section 489.129(1)(m), Florida Statutes, as a result of his substandard work on the Rogero's Property.

   15. The Department has not argued that Mr. Lee committed fraud or deceit. Nor does the record support a finding of such conduct. The Department has, however, suggested that Mr. Lee has committed gross negligence and misconduct.

       
       

   16. The evidence in this case supports a conclusion that Mr. Lee has committed gross negligence, incompetency and misconduct with regard to the roofing work he performed on the Rogero Property. Mr. Lee proceeded to attempt to perform work he was not qualified to perform. Mr. Lee used substandard materials to cover the old roof. Mr. Lee was unable to insure that the facings would not leak. Most importantly, Mr. Lee failed to replace obviously rotten wood before attempting to place a new roof over the rotten wood.

       
       

   17. Mr. Lee has suggested that he was merely performing work on the roof consistent with the low amount of the contract price. In effect, Mr. Lee has suggested that he was providing the Rogeros what they paid for. This argument is without merit. Mr. Lee was the expert, general contractor. Mr. Lee was the one that suggested the agreed to price. If Mr. Lee could not provide reasonable, competent services for the price he suggested and agreed to, he should not have agreed to perform the work. Mr. Lee also had no problem increasing the amount paid by the Rogeros as his initial efforts proved to be unsuccessful.

       
       

   18. Based upon the foregoing, it is concluded that Mr. Lee violated Section 489.129(1)(m), Florida Statutes, by committing gross negligence, incompetency and misconduct in his practice of contracting.

       
       

       1. Penalty.

       
       

   19. Section 489.129(1), Florida Statutes, authorizes the imposition of the following penalties for a violation of the prohibited acts contained therein:

       
       

       1. The board may revoke, suspend, or deny the issuance or renewal of 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 . . . .

          
          

   20. Disciplinary guidelines are provided for in Rule 21E-17.001, Florida Administrative Code. The evidence in this case proved that Mr. Lee violated Sections 489.129(1)(d) and (m), Florida Statutes, and Section 489.129(j), Florida Statutes, by violating Sections 489.105, 489.113 and 489.117, Florida Statutes. In pertinent part, Rule 21E-17.001, Florida Administrative Code, at the time of Mr. Lee's violations, provided that the following penalties, absent a consideration of any aggravating or mitigating circumstances for these violations:

       
       

       . . . .

       (3) 489.113, 489.117: Contracting beyond scope of license, no safety hazard. First violation, letter of guidance; repeat violation, $250 to $750 fine.

       . . . .

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

          . . . .

          (b) Causing monetary or other harm to licensee's customer, and no physical harm to any person. First violation, $500 to $1,500 fine; repeat violation, $1,000 to $5,000 fine and suspension or revocation.

       2. 489.129(1)(d): Violation of state or local laws. First violation, $250 to $750 fine. Repeat violation, $1,000 to $3,000 fine.

       . . . .

       
       

   21. The following aggravating circumstances must also be taken into account in this case:

       
       

       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. . . .

       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.

          . . . .

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

          . . . .

          1. Any effort at rehabilitation.

          2. Any other mitigating or aggravating circumstances.

          
          

          Rule 21E-17.002, Florida Administrative Code.

          
          

   22. The following facts in this case support the conclusion that the foregoing aggravating circumstances should be considered in determining an appropriate penalty in this case:

       
       

       1. Monetary or other damage to the Rogeros: The Rogeros paid Mr. Lee

          $6,000.00 for the roofing work he performed for which they received no benefit. All of Mr. Lee's work had to be removed. The cost of removal of Mr. Lee's work to the Rogeros was $1,836.00. Therefore, the Rogeros suffered a minimum of

          $7,836.00 in damage as a result of Mr. Lee's roofing work.

          
          

       2. On-site violations of codes: Mr. Lee violated the City of St. Augustine building code by using substandard roofing material on the roof of the Rogero Property. Instead of correcting the violation, Mr. Lee sought a variance.

          
          

       3. Efforts at rehabilitation: Mr. Lee made no effort initially to correct the City of St. Augustine code violations, to use suitable materials for the roof. Mr. Lee did look into the use of a licensed roofing contractor, but left

          the job before correcting this problem. Mr. Lee also has made no effort to reimburse the Rogeros for any damage he caused.

          
          

       4. Other aggravating circumstances: Mr. Lee failed to recognize the hazardous condition of the roof of the Rogero Property which would have been created had he completed his substandard roofing work. Mr. Lee either did not care or his knowledge of roofing work was so substandard that he did not realize the impact of placing the metal roof over the amount of rotten wood on the Rogero Property roof.

       
       

   23. The only mitigating factor in this case is the lack of evidence that Mr. Lee has been found to have committed violations of Section 489.129(1), Florida Statutes, in the past.

       
       

   24. Based upon the foregoing, Mr. Lee should be required to reimburse the Rogeros for their proven damages of $7,836.00, be required to pay a fine of

       $5,000.00, and his license should be placed on probation for a period of one year.

       
       

   25. Finally, the Florida Construction Industry Licensing Board is authorized to assess the costs of the investigation and prosecution of this matter. Mr. Lee should, therefore, be required to pay $4,319.41 in costs.

RECOMMENDED ORDER

Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered finding that Ernest E. Lee has

violated Sections 489.129(1)(d) and (m). Florida Statutes, and Section

489.129(1)(j), Florida Statutes, by failing to comply with Sections 489.105,

489.113 and 489.117, Florida Statutes. It is further

RECOMMENDED that Counts II, III and IV of the Administrative Complaint should be dismissed. It is further

RECOMMENDED that Mr. Lee be required to reimburse the Rogeros $7,836.00, pay an administrative fine of $5,000.00 and pay costs of $4,319.41 within thirty days of the date the Final Order in this case becomes final. It is further

RECOMMENDED that Mr. Lee be placed on probation for a period of one year from the date the Final Order in this case becomes final.

DONE AND ENTERED this 16th day of June, 1993, in Tallahassee, Florida.

LARRY J. SARTIN

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 16th day of June, 1993.

APPENDIX

The parties have submitted proposed findings of fact. It has been noted below which proposed findings of fact have been generally accepted and the paragraph number(s) in the Recommended Order where they have been accepted, if any. Those proposed findings of fact which have been rejected and the reason for their rejection have also been noted.

The Department's Proposed Findings of Fact

1. See 20 and hereby accepted as hearsay which supports other competent substantial evidence.

2. Accepted in 20, 26 and 31.

3. Accepted in 21.

18 See 22-23.

1. Accepted in 24-25.

2. Accepted in 28.

3. See 26 and hereby accepted.

4. Accepted in 27. The last sentence is a legal conclusion. 23-24 Accepted in 32.

25 Accepted in 34. The last sentence is not relevant to this proceeding.

Mr. Lee's Proposed Findings of Fact

Count I:

1. See 2

2. Not supported by the weight of the evidence.

3. Not supported by the weight of the evidence.

Count II: Count was dismissed.

Count III (incorrectly identified as Count "II"):

1 Mr. Lee is correct to the extent that the weight of the evidence failed to prove the facts alleged in this count.

Count IV: Count was dismissed.

Count V:

1. See 6.

2. Not supported by the weight of the evidence or relevant.

3. See 5.

4. See 5.

5. Not supported by the weight of the evidence.

Count VI:

Mr. Lee has merely quoted a few lines from the Transcript of the Final Hearing.

COPIES FURNISHED:

G. W. Harrell Senior Attorney

Department of Professional Regulation Northwood Centre

1940 North Monroe Street Tallahassee, Florida 32399-0792

Ernest E. Lee

228 Charlotte Street

St. Augustine, Florida 32084

Jack McRay General Counsel

Department of Professional Regulation 1940 North Monroe Street

Tallahassee, FL 32399-0792

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

Jacksonville, FL 32202

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 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.

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

AGENCY FINAL ORDER

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

STATE OF FLORIDA

DEPARTMENT OF BUSINESS AND PROFESSIONAL REGULATION CONSTRUCTION INDUSTRY LICENSING BOARD

DEPARTMENT OF BUSINESS AND PROFESSIONAL REGULATION,

Petitioner,

DOAH Case No. 92-7432

vs. Case No: 92-05735

License No: RG 0052441

ERNEST E. LEE,

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 August 12, 1993, in Tallahassee, Florida, for consideration of the Recommended Order (a copy of which is attached hereto and incorporated herein by reference) The Petitioner was represented by G. W. Harrell. The Respondent appeared pro se at the proceedings.

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(I), 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

   
   

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 five thousand dollars ($5,000.00), costs in the amount of four thousand eight hundred ninety-four dollars and twenty-one cents ($4,894.21) to the Board within 30 days of the filing of this Order and restitution of seven thousand eight hundred thirty-six dollars ($7,836.00) to the Rogeros within 30 days with interest to accrue from

30 days after the date of the filing of this Order at the rate established by the Board rule, standard enforcement provisions to apply.

To assure payment of the fine, costs 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 30 days. If the ordered fine, costs and restitution are paid within that 30 day period, the suspension imposed shall not take effect. Upon payment of the fine, costs and restitution after the 30 days, the suspension imposed shall be lifted. If the licensee does not pay the fine, costs and restitution within said period, then immediately upon expiration of the stay, the licensee shall surrender the license to the Department of Business and Professional Regulation or shall mail it to the Board office.

Pursuant to Section 120.59, Florida Statutes, the Parties are hereby notified that they may appeal this Order by filing one copy of a Notice of Appeal with the Clerk of the Department of Business and Professional Regulation, Northwood Centre, 1940 North Monroe Street, Suite 60, 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 Business and Professional Regulation.

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

WARREN SUTTON, 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 Ernest E. Lee, 228 Charlotte Street, St, Augustine, Florida 32084 and to the Board Clerk, Department of Business and Professional Regulation and its counsel, Northwood Centre, 1940 North Monroe Street, Suite 60, Tallahassee, Florida 32399-0792 this 17th day of August, 1993.

SUSANNE GRAY

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

AGENCY CORRECTED FINAL ORDER

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

STATE OF FLORIDA

DEPARTMENT OF BUSINESS AND PROFESSIONAL REGULATION CONSTRUCTION INDUSTRY LICENSING BOARD

DEPARTMENT OF BUSINESS AND PROFESSIONAL REGULATION,

Petitioner,

vs. Case No: 92-7432

License No: RG 0052441

ERNEST E. LEE,

Respondent.

/

CORRECTED FINAL ORDER

THIS MATTER came before the Construction Industry Licensing Board (hereafter referred to as the "Board") pursuant to Section 120.57(1), Florida Statutes, on August 12, 1993, in Tallahassee, Florida, for consideration of the Recommended Order (a copy of which is attached hereto and incorporated herein by reference). The Petitioner was represented by G.W. Harrell. The Respondent appeared pro se at the proceedings.

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

   
   

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 five thousand dollars ($5,000.00), costs in the amount of Four Thousand Eight Hundred Ninety-Four dollars and Twenty-One cents ($4,894.21) to the Board and restitution of Seven Thousand Eight Hundred Thirty-Six dollars ($7,836.00) to the Rogeros, all to be paid within 30 days of the filing of this Order, with interest to accrue from 30 days after the date of the filing of this Order at the rate established by the Board rule, standard enforcement provisions to apply.

To assure payment of the fine, costs 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 30 days. If the ordered fine, costs and restitution are paid within that 30 day period, the suspension imposed shall not take effect. Upon payment of the fine, costs and restitution after the 30 days, the suspension imposed shall be lifted. If the licensee does not pay the fine, costs and restitution within said period, then immediately upon expiration of the stay, the licensee shall surrender the license to the Department of Business and Professional Regulation or shall mail it to the Board office.

Pursuant to Section 120.59, Florida Statutes, the Parties are hereby notified that they may appeal this Order by filing one copy of a Notice of Appeal with the Clerk of the Department of Business and Professional Regulation, Northwood Centre, 1940 North Monroe Street, Suite 60, 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 Business and Professional Regulation.

DONE AND ORDERED this 28th day of October ,1993.

WARREN SUTTON, 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 Ernest E. Lee, 228 Charlotte Street, St, Augustine, Florida 32084 and to the Board Clerk, Department of Business and Professional Regulation and its counsel, Northwood Centre, 1940 North Monroe Street, Suite 60, Tallahassee, Florida 32399-0792 this 28th day of October, 1993.

Docket for Case No: 92-007432

Orders for Case No: 92-007432