STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

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

)

Petitioner, )

)

vs. ) CASE NO. 86-1773

)

STEVEN E. RANNE, )

)

Respondent. )

)

RECOMMENDED ORDER

For Petitioner: David R. Terry, Esquire

Tallahassee, Florida

For Respondent: Peter N. Hanna, Esquire

Fort Lauderdale, Florida

This matter was heard on August 27, 1986, in Fort Lauderdale, Florida, by William R. Dorsey, Jr., the Hearing Officer assigned by the Division of Administrative Hearings. At the close of the hearing, the parties were granted ten (10) days from the filing of the transcript in which to file proposed findings of fact and conclusions of law. The transcript was filed on September 15, 1986, and on September 27, 1986, counsel for Mr. Ranne moved for additional time in which to file a proposed recommended order because counsel needed Mr.

Ranne's assistance in preparing the proposed recommended order, but Mr. Ranne had suffered a heart attack. By order dated September 25, 1986, an additional period of time for filing proposed recommended orders was granted. Proposed findings of fact and conclusions of law were filed by the Department on November 19, 1986, and were filed by the Respondent on December 22, 1986. Rulings on the findings of fact proposed by the parties are made in the Appendix to this Recommended Order.

ISSUES

The issues are whether Mr. Ranne is guilty of gross negligence, incompetence or misconduct in the practice of contracting in connection with roofing repairs done on a residence in Sunrise, Florida, and whether he willfully violated the local building code by failing to obtain a building permit or calling for inspections of his work.

FINDINGS OF FACT

1. Mr. Ranne is a certified roofing contractor who holds license number CC C018984.

   
   

2. On or about June 13, 1985, Mr. Ranne contracted with Town and Country Title Company to inspect the roof of a home located at 9310 best 43rd Manor in

   Sunrise, Broward County, Florida. The inspection was requested by the title company in connection with the sale of the home from a Mr. Wilhelmi to Mr. and Mrs. Schroeder.

   
   

3. Mr. Ranne performed the inspection and on June 13, 1985, submitted to the title company an invoice, containing the findings of his inspection. Mr. Ranne indicated that:

   
   

   1. five (5) portions of the upper flat deck of the roof needed repair, three (3) areas needed wood replacement, and the outer edges of the upper flat deck showed cracking,

      
      

   2. wood needed to be replaced and a leak needed to be repaired on the outer edge of the lower flat deck of the roof, and

      
      

   3. approximately eight (8) tiles on the peaked roof had been crushed and needed to be replaced.

      
      

4. The seller, through the title company, hired Mr. Ranne to repair the roof before the sale closed. Mr. Ranne worked on the roof, and submitted a bill to Town and Country Title Company on June 19, 1985, stating that all of the work set out on his June 13, 1985, report had been completed. Mr. Ranne was paid for his inspection service and for the repairs through a check drawn on the account of Town and Country Title Company. Fifty dollars was paid for the inspection and $775.00 for repairs. The funds for roof repair work came from the seller of the house.

   
   

5. Shortly after the home was purchased by the Schroeders, they experienced leaks in the roof. These leaks not only occurred in the upper and lower flat deck portions of the roof which had been repaired, but also in another part of the roof.

   
   

6. A leak occurred in the entrance hallway. Water flowed down inside a wall and wet the entrance hallway carpet. The Department's evidence was not clear and convincing that a leak existed in a valley formed where two portions of the peaked, shingled roof joined when Mr. Ranne inspected the roof.

   
   

7. When Mr. Ranne was asked to come back to the home, Mr. Schroeder not only complained about the leak in the entrance way caused by the roof leak in the valley; other leaks on the upper and lower flat roofs, which Mr. Ranne had repaired, were discussed.

   
   

8. I accept the expert testimony of Mr. Sipes that his October 1985, inspection of the roof disclosed that the repair work on the lower flat roof had been incomplete and was causing leaking at that time. Neither the Schroeders nor anyone else had worked on the roof in the interim between Mr. Ranne's work and the Sipes inspection. The work Mr. Ranne did was incomplete in that the gravel had been scraped back from this built up tar and gravel roof in the area where repair was done but the gravel had not been put back in place, which is necessary to properly complete the repair. There was also a 4 foot length of damaged wood on the north overhang of that roof which had not been replaced and had been rotting for over a year, and therefore should have been repaired. On the inspection report, Mr. Ranne had recorded a leak on the outer edge of the lower flat roof and noted that wood there needed replacement. No repair had been done on the upper flat deck roof, which by the time of Mr. Sipes inspection had deteriorated to the point where the felts of the roof were exposed and therefore could no longer be repaired. The upper roof could not have

   deteriorated from an acceptable condition to what Mr. Sipes found in the interim between the work Mr. Ranne did or should have done in June and the time of Mr.

   Sipes inspection on October 23, 1985.

   
   

9. I also accept the expert opinion of another roofer, Mr. Loden, who inspected the roof in June of 1986, approximately a year after Mr. Ranne's work. (Mr. Sipes had not been hired to make the repairs which he had thought appropriate when he inspected the roof in October of 1985.) Loden agreed that the upper flat deck roof was completely worn out and, by its condition, must have been worn out for approximately three (3) years. Loden also found that on the lower deck where there had been a partial replacement of the roof decking, 3/8 inch sheet plywood had been used while the rest of the roof was 1/2 inch roofing. Because the replacement wood was not thick enough this had caused water to pond in the area where the wood had been replaced which in turn caused that roof to leak.

   
   

10. Mr. Ranne had not gotten a permit for the roofing work that he did in June, 1905. According to Section 301.1(k) of the Broward County edition of the South Florida Building Code, a permit was required because the repair exceeded

    $300.00 in the value of labor and materials. Mr. Ranne thought that the owner of the home (who was not then Mr. Schroeder, but a Mr. Wilhelmi, who sold the home to Schroeder) had obtained the permit. Mr. Wilhelmi had not done so and Mr. Ranne never saw a permit posted when he did his work, although posting was required. Neither did Mr. Ranne have his work inspected by a building official; he did not believe that an inspection was required for the repair he was doing. An inspection was required, however, by Section 3401.1(b) of the 1984 Broward County edition of the South Florida Building Code.

    
    

    CONCLUSIONS OF LAW

    
    

11. The Division of Administrative Hearings has jurisdiction over this matter, pursuant to Section 120.57(1), Florida Statutes.

    
    

12. A roofing contractor is subject to discipline pursuant to Section 489.129(1)(d) and (m) for:

    
    

    Willful or deliberate disregard and viola- tion of the applicable building code or laws of the state or of any municipalities or counties thereof, [or]

    
    

    Upon proof that the licensee is guilty of fraud or deceit or of gross negligence, incompetency, or misconduct in the practice of contracting.

    
    

13. With respect to Count One of the Amended Administrative Complaint which had charged Mr. Ranne with gross negligence, incompetence or misconduct in the practice of contracting in violation of Section 489.129(1)(m), the charges are sustained by clear and convincing evidence that the work Mr. Ranne claimed to have done to the upper flat deck was never done. Having been paid for such work, Mr. Ranne is guilty of fraud. Additionally, Mr. Ranne's inspection of the upper deck was not competently done because the roof had so deteriorated that it required replacement, not the repairs he recommended but which he did not carry out. The work done on the lower flat deck was done incompetently in that not all the rotten wood was removed, the replacement plywood was of an insufficient thickness and the gravel on the tar and gravel roof was not properly replaced

    after the 3/8 inch plywood was used to repair some rotten wood. Mr. Ranne is not guilty of misconduct with respect to the leak in the valley of the roof because there is insufficient evidence that the leak existed at the time of his inspection. He cannot be faulted for failing to repair it.

    
    

14. As to Count Two, Mr. Ranne is not guilty of willful or deliberate disregard of the applicable county building code. There has been no judicial construction of the terms as willful or deliberate is used in Section 489.129, Florida Statutes. The term "willful" is defined in Webster's Collegiate Dictionary as "obstinately and often perversely self-willed; done deliberately". The term "deliberate" is defined as "resulting from careful and thorough consideration". In licensing cases, federal decisions construe the terms "willful" and "deliberate" to require that an agency seeking to impose discipline prove that the licensee knew his legal obligation and purposely disregarded it or was plainly indifferent to such requirements. Shyda v. Director, Bureau of Alcohol, Tobacco and Firearms, 448 F.Supp. 409, 415 (M.D.Pa. 1977); Lewin v. Blumenthal, 590 F.2d 268, 269 (8th Cir. 1979); Perri v. Department of Treasury, 637 F.2d 1332, 1336 (9th Cir. 1981).

    
    

15. The Department has not proven by clear and convincing evidence that Mr. Ranne willfully violated the Broward County Building Code by failure to obtain a permit or secure inspections. Mr. Ranne's failure to obtain a building permit after the owner had failed to have it posted when Mr. Ranne began his work was at most negligence. The failure to have procured the inspection was the result of Mr. Ranne's erroneous belief that no inspection was required. Whether or not Mr. Ranne should have known that inspections were required is not the issue under the statute the Department has based Count Two of its Amended Administrative Complaint upon. There is insufficient proof that Mr. Ranne actually knew that inspections were required but were avoided, therefore he is not guilty of violating Section 489.129(1)(d), Florida Statutes.

    
    

16. I specifically decline the Department's suggestion that Mr. Ranne pay

$775.00 as restitution to the Schroeders. The only testimony in the record is that the prior owner of the house, Mr. Wilhelmi, was responsible for paying for any repairs to the roof incident to the sale of the house from Mr. Wilhelmi to the Schroeders. If anyone would be entitled to restitution, it would be Mr.

Wilhelmi. Moreover, Section 439.129(1), Florida Statutes, gives the Board the power to revoke, suspend or deny licensure to a contractor or to impose an administrative fine not to exceed $5,000.00 when a contractor commits any prohibited acts, but does not authorize the equitable remedy of restitution to a third party.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED:

That Mr. Ranne be fined $1,000.00 as a penalty for fraud in charging for repairs on the upper flat roof which were not done, $500.00 for the incompetent inspection of the upper flat roof which failed to advise the parties to the sale transaction that the upper roof needed to be replaced and $500.00 for the incompetent work done on the lower flat deck roof. He should also be placed on probation for one year.

DONE AND ORDERED this 24th day of March, 1987, in Tallahassee, Florida.

WILLIAM R. DORSEY, JR.

Hearing Officer

Division of Administrative Hearings The Oakland Building

2009 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 24th day of March, 1987.

APPENDIX TO RECOMMENDED ORDER, CASE NO. 86-1773

The following constitute my specific rulings pursuant to Section 120.59(2), Florida Statutes (1985), on the proposed findings of fact submitted by the parties.

Rulings on Proposed Findings of Fact Submitted by Petitioner

1. Covered in Finding of Fact 1.

2. Covered in Finding of Fact

1. Although the real estate salesman, Ruth Ozkell, initially contacted Mr. Ranne, the proposals and bills show that the other party to the transaction was Town and Country Title Company.

2. Covered in Finding of Fact 3.

3. Rejected because there is no showing that the Schroeders were directly involved in the hiring of Mr. Ranne to perform his inspection.

4. Rejected as unnecessary.

5. Rejected as unnecessary.

6. Covered in Finding of Fact 3.

7. Covered in Finding of Fact 6.

8. Rejected as unnecessary.

9. Rejected as unnecessary.

10. Covered in Finding of Fact 4.

11. Covered in Finding of Fact 4.

12. Covered in Finding of Fact 4.

13. Rejected as unnecessary.

14. Covered in Finding of Fact 4.

15. Covered in Finding of Fact 9.

16. Covered in Finding of Fact 6.

17. Covered in Finding of Fact 4.

18. Covered in Finding of Fact 4.

19. To the extent relevant, covered in Finding of Fact 5.

20. Rejected as unproven.

21. Rejected as unproven.

22. Rejected as unnecessary.

23. Rejected as unnecessary.

24. Covered in Finding of Fact 7.

25. Rejected as unnecessary.

26. Rejected as unnecessary, but implicit in the findings made.

27. Rejected as unnecessary.

28. To the extent appropriate, covered in Finding of Fact.

29. Rejected as unnecessary.

30. Rejected as unnecessary.

31. Rejected as unnecessary.

32. Covered in Finding of Fact 8.

33. Covered in Finding of Fact 8.

34. Covered in Finding of Fact 8.

35. Rejected as unnecessary.

36. Rejected as cumulative.

37. Covered in Finding of Fact 8.

38. Covered in Finding of Fact 8.

39. Covered in Finding of Fact 8.

40. Covered in Finding of Fact 8.

41. Covered in Finding of Fact 8.

42. Covered in Finding of Fact 8.

43. Covered in Finding of Fact 8.

44. Covered in Finding of Fact 8.

45. Covered in Finding of Fact 8.

46. Covered in Finding of Fact 3

47. Rejected as unnecessary.

48. Covered in Finding of Fact 9.

49. Covered in Finding of Fact 9.

50. Covered in Finding of Fact 9.

51. Covered in Finding of Fact 9.

52. Covered in Finding of Fact 9.

53. Covered in Finding of Fact 9.

54. Covered in Finding of Fact 9.

55. Covered in Finding of Fact 9.

56. Covered in Finding of Fact 9.

57. Covered in Finding of Fact 9.

58. Covered in Finding of Fact 8.

59. Rejected as unnecessary.

60. Rejected as unnecessary.

61. Rejected as unnecessary.

62. Rejected as unnecessary.

63. Adopted in Finding of Fact 10.

64. Adopted in Finding of Fact 10.

65. Adopted in Finding of Fact 10.

66. Adopted in Finding of Fact 10.

67. Rejected as unnecessary.

68. Adopted in Finding of Fact 10.

Rulings on Proposed Findings of Fact Submitted by Respondent 1-3. Not applicable

1. Covered in Finding of Fact 1.

2. Covered in Finding of Fact 2, but the documents indicate the contract was with Town and Country Title Company, not with the realty firm.

3. Covered in Finding of Fact 3.

4. Covered in Finding of Fact 4.

5. Covered in Finding of Fact 4.

6. Covered in Finding of Fact 4.

7. Covered in Finding of Fact 4.

8. Covered in Finding of Fact 4.

9. Rejected as irrelevant.

10. Covered in Finding of Fact 6.

11. Rejected as irrelevant.

12. To the extent relevant, covered in Finding of Fact 6.

13. Rejected as irrelevant.

17-31. Rejected as recounting of testimony rather than findings of fact.

COPIES FURNISHED:

David R. Terry, Esquire Department of Professional

Regulation

130 North Monroe Street Tallahassee, Florida 32399-0750

Peter N. Hanna, Esquire

500 S.E. 12th Street

Fort Lauderdale, Florida 33316

Fred Seely, Executive Director Construction industry Licensing Board Department of Professional

Regulation

Post Office Box 2 Jacksonville, Florida 32201

Van Poole, Secretary Department of Professional

Regulation

130 North Monroe Street Tallahassee, Florida 32399-0750

Joe Sole, General Counsel

Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32399-0750

Docket for Case No: 86-001773

Orders for Case No: 86-001773