STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF BUSINESS AND ) PROFESSIONAL REGULATION, )

CONSTRUCTION INDUSTRY )

LICENSING BOARD, )

)

Petitioner, )

)

vs. ) CASE NO. 95-0541

)

JOHN W. HULL, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the above matter was heard before the Division of Administrative Hearings by its assigned Hearing Officer, Donald R. Alexander, on July 27, 1995, in Inverness, Florida.

APPEARANCES

For Petitioner: Gary L. Asbell, Esquire

1940 North Monroe Street, Suite 60

Tallahassee, Florida 32399-0792

For Respondent: John W. Hull, pro se

95495 Berkshire Avenue

Inverness, Florida 34452-9005 STATEMENT OF THE ISSUE

The issue in this case is whether respondent's license as a certified building contractor should be disciplined for the reasons cited in the amended administrative complaint filed on July 19, 1995.

PRELIMINARY STATEMENT

This matter began on August 24, 1994, when petitioner, Department of Business and Professional Regulation, Construction Industry Licensing Board, issued an administrative complaint charging respondent, John W. Hull, a licensed building contractor, with having constructed a home with a substandard roof in violation of local building code standards and state law. Thereafter, respondent requested a formal hearing to contest the agency's action. The matter was referred by petitioner to the Division of Administrative Hearings on February 6, 1995, with a request that a Hearing Officer be assigned to conduct a hearing.

By notice of hearing dated February 22, 1995, a final hearing was scheduled on March 30, 1995, in Inverness, Florida. At the parties' request, the matter was temporarily abated while they sought to settle the case. At petitioner's

request, the matter was rescheduled to July 27, 1995, in Inverness, Florida. On July 18, 1995, petitioner was authorized to file an amended complaint which amended the original complaint in one minor respect.

At final hearing, petitioner presented the testimony of Mary E. Griggs, the owner of the property on which the work was done. Also, it offered petitioner's exhibits 1-11. All exhibits were received in evidence. Exhibit 1 is the deposition of Henry Pann, building construction inspector for Citrus County, Florida. Respondent testified on his own behalf. Finally, petitioner was authorized to late-file an affidavit setting forth the costs incurred in prosecuting this action. The affidavit was filed on August 25, 1995.

Respondent was given to and including September 5, 1995, in which to file a counter-affidavit. None was filed.

The transcript of hearing was filed on August 11, 1995. Petitioner filed proposed findings of fact and conclusions of law on August 25, 1995. A ruling on each proposed finding is found in the Appendix attached to this Recommended Order.

FINDINGS OF FACT

Based upon all of the evidence, the following findings of fact are determined:

1. At all times relevant hereto, respondent, John W. Hull, held certified building contractor license number CB CO28961 issued by petitioner, Department of Business and Professional Regulation, Construction Industry Licensing Board (Board). When the events herein occurred, respondent was qualifying agent for, and doing business as, John W. Hull Construction in Inverness, Florida.

   
   

2. On September 15, 1990, respondent entered into a contract with Robert and Mary E. Griggs to construct a single-family residence at 7118 East Gospel Island Road, Inverness, Florida, for an estimated cost of $130,000. The contract called for respondent to be responsbile for all materials and work on the project and to build the residence in compliance with the county building code. In this regard, respondent pulled the permit for the job and was the supervising contractor. The project was completed around mid-May 1991 and a certificate of occupancy was issued by Citrus County (County). After the Griggs paid for the work in full, they took occupancy of the premises on May 17, 1991.

   
   

3. On September 21, 1993, the Griggs noticed a water leak in the guest bathroom. Mary Griggs immediately contacted respondent and was told to call the subcontractor who installed the roof, Lloyd Vann. She did so and Vann came to the house the next morning and acknowledged the shingles were installed "incorrectly." He returned on October 4, 1993, and placed some tar under the shingles. While doing so, Griggs says that Vann "ripped a lot of the shingles."

   
   

4. When the leaks persisted, including at least seven separate leaks during a single rain storm, Mary Griggs requested two other roofers to inspect her roof. They corroborated Vann's acknowledgment that the roof was "incorrectly" installed.

   
   

5. On January 18, 1994, Griggs again contacted respondent and told him she needed a new roof since it violated building code requirements. He responded that there were no building code standards applicable to the roof.

6. Mary Griggs persisted with her complaint and eventually arranged a meeting with a County building inspector, Henry Pann, respondent and Vann on September 30, 1994. However, Griggs was told not to speak at the meeting but rather to listen to the other participants.

   
   

7. As a result of that meeting, Mary Griggs was contacted by respondent just after a heavy rain on October 3, 1994, to see if she still had any roof leaks. Not surprisingly, she responded in the affirmative and respondent visited the premises the next day. After concluding that the leaks were caused by water seeping through the sides of the chimney, respondent sealed and repainted the chimney area the following day.

   
   

8. On November 15, 1994, the Griggs again experienced "heavy leaks" in their home during a heavy rain storm. After unsucessfully attempting to contact respondent, Mary Griggs finally reached Vann, who eventually replaced some shingles on November 23, 1994. However, as of the time of hearing in late July 1995, the Griggs still had water leaks in their home every time it rained, some of which were "worse" than before any repairs were made. Photographs received in evidence, and deposition testimony by inspector Pann, confirm numerous water stains throughout the house.

   
   

9. Inspector Pann established that the roof violated the County's building code in at least four respects. First, the roof was in violation of section

   103.2.4 by having inadequate fastener lengths, that is, respondent's agent had used staples instead of large head galvanized nails as required by the code. Thus, the fasteners could not penetrate through the shingle and into the lumber deck. Second, section 103.2.3 was contravened because the rakes and eaves were not cemented. Third, section 100 was violated because the drip edge was applied over the felt topping, a procedure which also contravened the manufacturer's specifications. Finally, the roof workmanship violated sections 100 and 100.1 by having an improper staple installation.

   
   

10. The manufacturer of the asphalt shingles used on the Griggs' roof, Georgia-Pacific, has published a brochure containing easily understood instructions on how to install asphalt shingles. Even so, Vann ignored these plain instructions in a number of respects when he installed the Griggs' roof. For this reason, it can be reasonably inferred that respondent, through his agent Vann, deliberately violated local building codes. To correct the code violations and eliminate the leaks, and to make the roof comparable to that which the Griggs contracted for, it will be necessary for the Griggs to replace the roof, which will cost $7,020.00. In addition, it will cost the Griggs

    $500.00 to seal and paint the ceiling areas discolored by the leaking water.

    
    

11. Respondent says that when the roof was installed in 1991, he followed applicable building codes "as much as they were being followed" at the time. While he defended his roofing subcontractor as being "a very reputable roofer," respondent nonetheless took the position that the roof was Vann's responsibility "to make good," and not his. He does not deny that the Griggs' roof is leaking, but says the leaks are "very small" and suggests that the Griggs' claims are exaggerated. At hearing, respondent suggested that the problem could be resolved by Mary Griggs calling Vann, who would "be there within a day or two" to make the repairs, a claim belied by the record. In any event, respondent is unwilling to replace the entire roof, a measure deemed to be necessary by the County inspector and other contractors. In light of respondent's continued failure to take appropriate measures to fix the roof, it is found that respondent is guilty of misconduct in the practice of contracting.

12. Through a late-filed affidavit, petitioner established that it incurred $3,012.18 in costs in prosecuting this action. This amount was not challenged. By law, the Board is entitled to recover this amount from respondent should it prevail in this proceeding.

    
    

    CONCLUSIONS OF LAW

    
    

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

    
    

14. Because respondent's contracting license is at risk, petitioner must prove the allegations in the amended administrative complaint by clear and convincing evidence. See, e. g., Ramsey v. Dept. of Business and Professional Regulation, 574 So.2d 291 (Fla. 5th DCA 1991).

    
    

15. The complaint charges respondent with violating Sections 489.129(1)(d) and (m), Florida Statutes (Supp. 1990), by his conduct in the Griggs transaction. Those provisions authorize disciplinary action to be taken against a licensee for:

    
    

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

    * * *

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

    
    

    As to subsection 489.129(1)(m), the misconduct did not occur until on and after September 21, 1993, and thus the statute in effect on that date should govern this aspect of the charges. Since the term "misconduct in the practice of contracting" appears in both the earlier and later versions of the statute, however, the Board's reliance on the 1990 statute is not erroneous.

    
    

16. Through clear and convincing evidence, petitioner has established that respondent has deliberately violated "applicable building codes" when his agent installed the Griggs' roof. The evidence further establishes that respondent is guilty of misconduct in the practice of contracting by failing to take the appropriate measures necessary to repair the Griggs' roof. Therefore, both charges have been sustained.

    
    

17. In reaching these conclusions, the undersigned has considered respondent's contention that he is not responsible for the work of his subcontractor. But respondent pulled the permit for the job, signed a contract making himself responsible for all work on the project, and associated himself with the project. Therefore, he cannot relieve himself of responsibility for the workmanship of others. Hunt v. Department of Professional Regulation, 444 So.2d 997, 999 (Fla. 1st DCA 1983).

    
    

18. In its proposed order, petitioner does not suggest that respondent's license be disciplined through suspension or revocation. Rather, it asks that he be assessed a fine in the amount of $2,250.00, which falls within the range of penalties contained in Rule 21E-17.002, Florida Administrative Code. In the absence of any mitigating factors, this disciplinary action is deemed to be appropriate.

19. Finally, under the authority of subsection 489.129(1), the Board may require financial restitution from the licensee and assess costs incurred in investigating and prosecuting the complaint. In this case, the consumer will require an expenditure of at least $7,520.00 in order to be made whole, and the Board has incurred costs in the amount of $3,012.18 in prosecuting this action. Therefore, these amounts should be paid by respondent within a timeframe to be established by the Board.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Construction Industry Licensing Board enter a final

order finding respondent guilty of violating Sections 489.129(1)(d) and (m),

Florida Statutes (Supp. 1990), imposing an administrative fine of $2,250.00, requiring that he pay restitution in the amount of $7,520.00, and requiring that he pay $3,012.18 for costs incurred by the Board in investigating and prosecuting this action. The fine, restitution and costs shall be repaid by a date certain to be established by the Board.

DONE AND ENTERED this 8th day of September, 1995, in Tallahassee, Florida.

DONALD R. ALEXANDER

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 8th day of September, 1995.

APPENDIX TO RECOMMENDED ORDER, CASE NO. 95-0541

Petitioner:

The proposed findings submitted by petitioner have generally been adopted in substance in this Recommended Order.

COPIES FURNISHED:

Gary L. Asbell, Esquire

Dept. of Business and Professional Regulation 1940 North Monroe Street, Suite 60

Tallahassee, Florida 32399-0792

Mr. John W. Hull

95495 Berkshire Avenue

Inverness, Florida 34452-9005

Richard Hickok, Executive Director Construction Industry Licensing Board 7960 Arlington Expressway, Suite 300

Jacksonville, Florida 32211-7467

Lynda L. Goodgame, Esquire

Dept. of Business and Professional Regulation 1940 North Monroe Street, Suite 60

Tallahassee, Florida 32399-0792

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit to the agency written exceptions to this Recommended Order. All agencies allow each party at least ten 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.

Docket for Case No: 95-000541

Orders for Case No: 95-000541