STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF PROFESSIONAL )

REGULATION, CONSTRUCTION )

INDUSTRY LICENSING BOARD, )

)

Petitioner, )

)

vs. ) Case No. 85-1180

)

FRANK A. GORY, )

)

Respondent. )

)

RECOMMENDED ORDER

A final hearing was held in this case in Miami, Florida, on June 18, 1986, before Donald D. Conn, a duly designated Hearing Officer of the Division of Administrative Hearings. The parties were represented as follows:

APPEARANCES

For Petitioner: Errol H. Powell, Esquire

130 North Monroe Street Tallahassee, Florida 32301

For Respondent: Martin G. Brooks, Esquire

4600 Sheridan Street

300 Hollywood Federal Building Hollywood, Florida 33021

By Amended Administrative Complaint filed August 2, 1985, before the Construction Industry Licensing Board, the Department of Professional Regulation charged that Frank A. Gory violated Section 489.129(1)(d), Florida Statutes, by willfully and deliberately disregarding and violating local building codes, or state or local laws. At the hearing, Petitioner called Lillian Perper, Robert B. Hilson and Oswald Ferro, and introduced six exhibits, numbered 1-5 and 7-9. Petitioner's exhibit numbered 6 was rejected based on Sections 90.952 and 90.953(2), Florida

Statutes. Respondent testified on his own behalf and did not introduce any exhibits. The transcript of the hearing was filed on July 11, 1986.

The parties were allowed to submit post-hearing proposed findings of fact and conclusions of law by August 26, 1986, and a ruling on each proposed finding of fact that was timely filed is included in the Appendix to this Recommended Order.

FINDINGS OF FACT

1. By Stipulation of the parties, it is found that Respondent is, and has been at all times material hereto, a certified roofing contractor in the State of Florida, having been issued license number CC-C015772. He is also known as Tony Gory, and was the qualifying agent for Roofing Technology, Inc., at all times material hereto.

   
   

2. On or about August 16, 1982, Respondent submitted a proposal, on behalf of Roofing Technology, Incorporated, to Lillian Perper for roofing work to be done on her residence at 3616 Flamingo Drive, Miami Beach, Florida. Mrs. Perper accepted the proposal on August 17, 1982, and testified that the written proposal contained all terms and conditions of her agreement with Respondent. Respondent obtained the permit for this job on August 23, 1982.

   
   

3. Mrs. Perper made timely payments to Respondent, under the terms of their agreement, totaling $11,057.00. Respondent completed the work in late September, 1982 and Mrs. Perper made her final payment on October 8, 1982.

   
   

4. Respondent's agreement with Mrs. Perper included a warranty stated as follows:

   
   

   All workmanship and material to be guaranteed against defects for a period of ten (10) years; except for fire, termites, windstorm, or damages caused by acts of God.

   
   

5. Within two months after completion of the reroofing, Mrs. Perper noted leaks in her livingroom and bedroom ceilings. She called Respondent, and-he came right out and 3 inspected her roof. He then sent a crew to Mrs. Perper's house and they attempted to locate and fix the leaks. However, they were not successful and the leaks continued.

6. Mrs. Perper made several additional attempts to reach Respondent, but was not able to personally talk with him again about her roof. She did leave messages at his office that she was continuing to have leaks in her roof.

   
   

7. In June, 1983, Respondent sent a crew of two men to Mrs. Perper's house to work on her roof. However, she denied them access to her roof because Respondent was not present, although they did identify themselves as roofers who Respondent had sent to repair her roof. Mrs. Perper was concerned that this crew would tear her roof off without Respondent being present to supervise the job.

   
   

8. No additional attempts were made by Mrs. Perper to reach Respondent, or by Respondent to repair her roof, after she refused access to the roofing crew in June, 1983.

   
   

9. The South Florida Building Code has been adopted as the building code of the City of Miami Beach.

   
   

10. Regarding roof coverings, the South Florida Building Code provides that the building official shall be notified by the permit holder upon completion of the roof covering (Section 3401.1(b)(4)), nails should not be driven through the sheathing between supports (Section 3401.1(c)), mortar used to secure roof tile shall be sandwiched between all laps at all butts and along the sides of barrel tile (Section 3403.2(e)), roof tiles shall be secured to resist uplift forces (Section 3403.2(f)) and such tile shall extend beyond roof sheathing at the eaves (Section 3403.2(h)).

    
    

11. An inspection of Mrs. Perper's roof conducted on February 25, 1985, by Robert B. Hilson, who was accepted as an expert in roofing and the installation of Spanish-S tile, indicates there were violations of several of the above provisions of the South Florida Building Code when he made his inspection, but there is no evidence that these violations were willful or deliberate, or that they were the result of work completed by Respondent in September, 1982.

    
    

12. Between June, 1983, when Mrs. Perper denied access to Respondent's crew and February, 1985, when Hilson made his inspection, Mrs. Perper allowed a painter to go on her roof to see about her leak problem and to repair some flashing around her chimney.

13. There is conflicting evidence concerning whether Respondent called for a final inspection after completing the roofing of Mrs. Perper's residence. Respondent testified that he did call for the inspection, but could offer nothing to substantiate his testimony. Petitioner called Oswald Ferro, building inspector, who testified that in the limited time he had available to him he could only find a record in the City of Miami Beach building department of one inspection on this job, but this was not a final inspection on this job. He had no personal knowledge about inspections on this job or whether Respondent had failed to call for a final inspection. Based upon the conflicting evidence presented and considering the demeanor of the witnesses, it is found that Petitioner has not established that Respondent failed to call for a final inspection.

    
    

    CONCLUSIONS OF LAW

    
    

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

    
    

15. Respondent is charged with violating Section 489.129(1)(d), Florida Statutes, which authorizes Petitioner to take license disciplinary action when a licensee if found guilty of:

    
    

    Willful of deliberate disregard and violation of the applicable building codes or laws of the state or of any municipalities or counties thereof.

    
    

16. The question is whether Respondent willfully or deliberately disregarded relevant portions of the South Florida Building Code, as adopted by the City of Miami Beach.

    
    

17. There has been no judicial determination of the terms "willful" and "deliberate" as they appear in Chapter 489, Florida Statutes. In Webster's New Collegiate Dictionary, the term "willful" is defined as "obstinately and often perversely self willed done deliberately." The term "deliberate" is defined as "resulting from careful and thorough consideration." "Willful" is applied to violations which are intentional, knowing or voluntary as distinguished from accidental, and is also used to characterize conduct marked by a careless disregard of whether one has the right to act in a certain way. Chandler v. Kendrick, 146 So. 551 (Fla. 1933). In licensing cases,

    federal courts have construed the terms "willful" and "deliberate" to require that an agency seeking to discipline a licensee prove that the licensee knew his legal obligation and purposely disregarded or was plainly indifferent to such requirements. Shyda v. Director, Bureau of Alcohol, Tobacco and Firearms, 448 F.Supp., 409, 415 (M.D.P.A. 1977). Accord, Lewin

    v. Blumenthal, 590 F.2d 268 269 (8th Cir. 1979); Perri v;

    Department of Treasury, 637 F.2d 1332, 1336 (9th Cir. 1981).

    
    

18. Petitioner has the burden of proof in this cause and must prove, clearly and convincingly, that the alleged violations occurred before license disciplinary action can be taken. Bowling v. Department of Insurance, 394 So. 2d 165 (Fla. 1st DCA 1981): Robinson v. Florida Board of Dentistry, 447 So. 2d 930 (Fla. 3rd DCA 1984): Sneij v. Department of Professional Regulation, 454 So. 2d 795 (Fla. 3rd DCA 1984).

    
    

19. Petitioner has not met its burden of proof concerning the alleged violations. The evidence does not establish that Respondent willfully or deliberately disregarded the provisions of the South Florida Building Code. In fact Respondent attempted to comply with the warranty provisions of his agreement with Mrs. Perper by personally responding to her call on one occasion, and sending a crew to work on her roof on two occasions. On the second occasion (June, 1983), his crew was denied access by Mrs. Perper to her roof. Mrs. Perper did allow a painter to make certain repairs on her roof between 1983 and 1985, and therefore it cannot be determined if the deficiencies noted by inspector Robert B. Hilson were the result of Respondent's or the painter's actions. It has also not been established that Respondent failed to call for a final inspection.

    
    

20. There is no evidence that Respondent has acted "obstinately", with "careless disregard" or "plain indifference" to the requirements of the South Florida Building Code. Therefore, the charges against Respondent should be dismissed. While an agency's interpretation of its own statute should be given deference, when that interpretation would be clearly erroneous it must not be followed. Natelson v. Department of Insurance, 454 So. 2d 31 (Fla. 1st DCA 1984) School Board of Pinellas County v. Department of Administration, Division of Retirement, Case No. BH-484 (Fla. 1st DCA, Opinion filed August 6, 1986). To sustain Petitioner's interpretation of Section 489.129(1)(d) and discipline Respondent based on the facts of this case would be clearly erroneous.

RECOMMENDATION

Based on the foregoing, it is recommended that a Final Order be issued dismissing the Administrative Complaint filed against Respondent Frank A. Gory.

DONE and ENTERED this 28th day of August, 1986 at Tallahassee, Florida.

DONALD D. CONN, Hearing Officer Division of Administrative Hearings The Oakland Building

2009 Apalachee Parkway

Tallahassee, Florida 32399

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 28th day of August, 1986.

COPIES FURNISHED:

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

Jacksonville, Florida 32201

Fred Roche, Secretary Department of Professional

Regulation

130 North Monroe Street Tallahassee, Florida 32301

Errol H. Powell, Esquire Department of Professional

Regulation

130 North Monroe Street Tallahassee, Florida 32301

Martin G. Brooks, Esquire

300 Hollywood Federal Building 4600 Sheridan Street Hollywood, Florida 33021

APPENDIX

Rulings on Petitioner's Proposed Findings of Fact:

1,2 Adopted in Finding of Fact 1.

1. Adopted in Finding of Fact 2.

2. Rejected as irrelevant and unnecessary.

3. Adopted in Finding of Fact 2.

4. Rejected as irrelevant.

7,8 Adopted in Finding of Fact 3.

1. Adopted in Finding of Fact 5, 6.

2. Adopted in part and rejected in part in Finding of Fact 5, 6.

3. Adopted in Finding of Fact 5.

4. Adopted in Finding of Fact 7.

13,14 Rejected as not based on competent substantial evidence.

1. Adopted in Finding of Fact 5,7.

2. Rejected in Finding of Fact 12.

17,18 Rejected as cumulative and unnecessary.

1. Adopted in Finding of Fact 9.

2. Rejected in Finding of Fact 13.

21-28 Rejected as not based on competent substantial evidence.

Respondent did not timely file proposed findings of fact by August 26, 1986 as required by Order entered August 6, 1986, and therefore no rulings can be made relative to any proposed findings which may be submitted by Respondent.

Docket for Case No: 85-001180

Orders for Case No: 85-001180