STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF PROFESSIONAL )

REGULATION, CONSTRUCTION )

INDUSTRY LICENSING BOARD, )

)

Petitioner, )

)

vs. ) CASE NO. 86-4427

)

ROBERT BRADLEY, )

)

Respondent. )

) DEPARTMENT OF PROFESSIONAL )

REGULATION, CONSTRUCTION )

INDUSTRY LICENSING BOARD, )

)

Petitioner, )

)

vs. ) CASE NO. 86-4428

)

ROBERT BRADLEY, )

)

Respondent. )

)

RECOMMENDED ORDER

Upon due notice, these consolidated cases came on for final formal hearing in Miami, Florida, on April 7, 1987, before Ella Jane P. Davis, the duly assigned hearing officer of the Division of Administrative Hearings.

APPEARANCES

For Petitioner: G. Vincent Soto, Esquire

Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32399-0750

For Respondent: Robert Bradley, pro se

5810 Northwest 30th Avenue Miami, Florida 33142

ISSUES, BACKGROUND, AND PROCEDURE

On July 24, 1986, Petitioner filed an administrative complaint alleging Respondent violated Section 489.129(1)(d), Florida Statutes, (DPR Case No.

0066199), by violation of local building codes and local laws through his failure to be locally certified in Palm Beach County and by failing to obtain a permit in connection with reroofing at Boca Entrada Ltd., in 1982.1/ This administrative complaint formed the charging document for DOAH Case No. 86-4427.

On September 22, 1986, Petitioner filed an administrative complaint alleging Respondent violated Section 489.129(1)(d), Florida Statutes, through his failure to obtain a permit in violation of a local law and that Respondent violated Section 489.129(1)(m), Florida Statutes, [misconduct, gross negligence, and/or incompetence in contracting by failure to reasonably honor the guarantee he gave June 25, 1985, to a Miami customer, Edward Polsky (DPR Case No. 71433). This administrative complaint formed the charging document for DOAH Case No. 86- 4428.

The two cases were subsequently consolidated for final formal hearing.

Petitioner presented the oral testimony of Doris Miller, Brenda Hales, George Froehlich, Dominique Sins, Donna Romito, Joan Polsky, and Charles H. Walton. Petitioner had admitted in evidence Petitioner's Exhibits 1, 3, 4, 5,

6, 7, 8, 9, 10, 11, 12, 13, and 14. Exhibit P-2 was withdrawn at formal hearing and P-6 was subsequently withdrawn upon motion and order subsequent to formal hearing.

Respondent presented his own testimony and had admitted in evidence Respondent's Exhibit 1.

Petitioner filed a transcript of proceedings and timely submitted post- hearing proposed findings of fact and conclusions of law, which proposals are ruled upon in the appendix to this recommended order, pursuant to Section 120.59(2), Florida Statutes. Respondent filed no post-hearing proposals.

FINDINGS OF FACT

1. Respondent has been continuously, actively licensed by the Construction Industry Licensing Board since May 1983, having been issued license number RE 0043386. Since then, he has been the qualifying agent for Bradley Roofing Co.

   
   

2. Respondent's business address of record is 3067 N.W. 54th Street, Miami, Florida, 33142.

   
   

3. Respondent's disciplinary record (P-14) refers to imposition of discipline by fine on two prior occasions and temporary suspension for failure to pay one fine, but only one of these disciplines is documented in the attachments. That discipline was imposed for pulling a permit for an unlicensed contractor and not qualifying that contractor's name.

   
   

   D.O.A.H. Case No. 86-4427 (Boca Entrada)

   
   

4. On or about October 11, 1982, Respondent entered into a contract to perform a complete reroofing job for $17,700. The invoice/contract presented at hearing as P-1 shows the job location as "10110 West Boca Entrada Boulevard, Building No. 101 of Plat 1 of Boca Entrada Subdivision, Boca Raton, Florida." This building was referred to as "Boca Entrada One" by several witnesses. Another typewritten job location on the invoice/contract has been crossed out. This exhibit indicates the job was sold to "Clinton Construction Co.," but this line has also been altered. Neither alteration was initialed by anyone. The contract was executed on behalf of Bradley Roofing Co. by Robert Bradley, the Respondent herein. One signature on behalf of the owner is illegible. The other signature reads, "E. J. Pollock, agent." Respondent testified he made out the contract to "George Pollock," who is apparently one and the same as E. J. Pollock." Mrs. Miller, a longtime resident of the Boca Entrada premises which

   was previously a rental unit and is now organized as a condominium, is also Treasurer of the current condominium association. She testified that Pollock did not work for either Boca Entrada Enterprises nor Clinton Construction Co. but that he was project manager for either "Boca Entrada Two" or "Boca Entrada Two" and "Boca Entrada Three" (two buildings at the same location which were built after Boca Entrada One). Respondent conceded that he contracted to do a new roof on two of the three buildings located at the address on the contract and to reroof another building at that address and that he completed the work contracted-for.

   
   

5. Respondent failed to obtain a permit to reroof any of the buildings at the address on the contract. Respondent relied first upon George Pollock and then upon someone named George Lopez, both of whom he thought were associated with Clinton Construction, to obtain a permit for roofing the other two buildings because he felt that he, Robert Bradley, and Bradley Roofing Co. were in the position of a subcontractor to Clinton Construction Co. for the two buildings being constructed from the ground up. No other person or firm obtained a permit for the building specifically named on the contract.

   
   

6. The three Boca Entrada buildings are located in Palm Beach County, Florida. Although no Palm Beach County ordinance was introduced to this effect, George Froehlich, an investigator for the Palm Beach County Construction Industry Licensing Board, testified that Palm Beach County requires that all roofing contractors working within the county limits be either locally certified or state certified. Respondent is not a state certified roofing contractor.

   See Section 489.105(6) and (7), Florida Statutes. Rather, he is a state registered roofing contractor. See Section 489.105(3)(e), Florida Statutes. The licensing package (P-14) shows he was not even a registered roofing contractor until May 1983, some seven months after contracting at Boca Entrada. He is not charged with operating without a state license, but it is clear that Respondent was not at any time relevant to the administrative complaint

   certified by either the State of Florida or the County of Palm Beach, nor was he even registered (licensed) in Florida.

   
   

7. The Standard Building Code is in force in Palm Beach County. Section

   1. thereof requires that a permit be obtained before commencing the type of work Respondent did at Boca Entrada. It provides:

      
      

      1. Any individual, partnership, firm, corporation or other business organization that is the owner or lessee of property, who desires that work as described below be per- formed on said owned or leased property, shall make provisions for an applicant, properly qualified under the ordinances regulating the certification and licensing of

   contractors, owner-builder and lessee-builder, to file an application for and obtain the required permit from the building official prior to commencing work for the following:

   
   

   2. Install, replace or resurface roofing, or make repairs.

   
   

8. Had Respondent been a state-licensed contractor and qualifier for his company, it would have clearly been his responsibility to assure himself that all necessary permits were obtained in a timely fashion, but as it was,

   Respondent was simply operating outside the law by performing contracting work on the Boca Entrada job without being licensed and without obtaining or determining whether anyone else had obtained a permit for said job.

   
   

9. Respondent gave a 10 year warranty on his work in 1982 and despite some haphazard and unsupported hearsay testimony of his failure to respond to individual tenants calls and condominium association letters, it was established that he honored his warranty by fixing or having someone fix leaks on one occasion in 1985 and one occasion in 1986.

   
   

   D.O.A.H. Case No. 86-4428 (Polsky Home)

   
   

10. On or about June 11, 1985, Respondent entered into a contract with Edward Polsky to reroof Polsky's home at 10070 East Calusa Club Drive, Coral Gables, Dade County, Florida.

    
    

11. Respondent failed to obtain a county permit to reroof the above residence before beginning work on Polsky's home. No other person or firm obtained a permit for the Polsky job during any period relevant to the administrative complaint.

    
    

12. Respondent did obtain a county permit on February 19, 1987, long after the original reroofing project had been completed. Due to contrary testimony by others and the date of this permit in relation to the administrative complaint and hearing in this cause, Respondent's excuse that his obtaining this permit was done to replace a former lost permit for the Polsky job is rejected as absolutely without credibility.

    
    

13. The South Florida Building Code is in force in Dade County. Section

    1. thereof requires that a permit must be obtained before commencing the type of work Respondent engaged in at the Polsky home. It provides:

       
       

       1. Permits, to be issued by the building official, shall be required for the following operations:

    
    

    k. The application, construction or repair on any roof covering as provided in Chapter 34, exceeding three hundred dollars ($300.00) in value of labor and materials, as determined by the building official, or for work exceeding in roofing squares in extent.

    
    

14. It was Respondent's responsibility, as a licensed contractor and as qualifier for his company, to assure himself that all permits were obtained in a timely fashion, but Respondent performed contracting work on the Polsky job without obtaining or determining whether anyone else had obtained a permit for said job.

    
    

15. Respondent issued a ten year warranty on his job for the Polskys. Although Respondent honored his warranty to some extent by appearing to do some repairs in response to complaints by Mrs. Polsky he did not coordinate his work to her schedule as promised. His explanation is that he could not come out to do repair work when it was raining. Although Respondent proved that he provides his home telephone number on his contract papers so that customers can reach him, it is unrefuted that Mrs. Polsky knew both numbers and called Respondent at

    either home or office numbers daily over a period of six months to report the problems with her roof, including persistent leaks, which she believed to be under warranty. No adequate response was made by Respondent to her requests.

    
    

16. Charles H. Walton was accepted to give expert testimony in roofing contracting. He testified that the work Respondent did on the Polsky roof involved putting a whole new roof over the old roof. This method is not contrary to the applicable codes but it does not meet the terms of the contact which Respondent entered into with the Polskys. That contract called for the old roof to be torn off and done new. He opined that Respondent's work on the Polsky roof constituted gross negligence for the foregoing reason, because there was no insulation at all in the roof as required by the contract, because proper precautions were not taken with the details of flashings, (especially at change of elevations), and because of insufficient precautions with installation of the drain system. As mitigation, Walton noted that Respondent actually upgraded the Polsky contract specifications by installing 3/4-inch urethane which is better than the fiberboard rigid installation called for by the contract. The suggestion that the ornamental wood of the house prevented the flashings being made secure is an insufficient excuse for the poor quality of work done.

    
    

    CONCLUSIONS OF LAW

    
    

17. The Division of Administrative Hearings has jurisdiction of the parties to and the subject matter of this cause except as set out infra.

    
    

18. Sections 489.129(1)(d) and (1)(m), under which Respondent is charged, provides as follows:

    
    

    1. The board may revoke, suspend, impose

       an administrative fine not to exceed $5000.00, place a contractor on probation, or reprimand or censure a contractor if the contractor . . . is found guilty of any of the following:

       
       

       (d) Willful or Deliberate disregard and violation of the applicable building codes or laws of the state or of any municipali- ties or counties thereof;

       
       

       (m) Upon proof that the licensee is guilty of fraud or deceit or of gross negligence,

       incompetency, or misconduct in the practice of contracting.

       
       

       D.O.A.H. Case No. 86-4427 (Boca Entrada Subdivision)

       
       

19. By this administrative complaint, as interlineated, Petitioner seeks to discipline Respondent for violations which occurred before he was ever licensed by the state. The Construction Industry Licensing Board, and derivatively, the Division of Administrative Hearings, has no jurisdiction by which this may be accomplished. Additionally, the evidence of the existence of a Palm Beach ordinance requiring either state certification or county certification is uncorroborated hearsay, albeit on the word of a Palm Beach County inspector, since the ordinance itself was not introduced in evidence or officially recognized or judicially noticed. Since the ordinance is not readily available to the undersigned in law books of general application, such

    notice/recognition cannot be accomplished sua sponte. Petitioner proved by clear and convincing evidence that Respondent failed to be locally certified in Palm Beach County and failed to be state certified or state-licensed (registered) and that he failed to obtain a permit in connection with reroofing at the Boca Entrada address in 1982, but without an ordinance requiring certification only the permit violation may stand. It was not proved that Respondent's failures to qualify arose from any wicked reason, and without jurisdiction, all charges must be dismissed.

    
    

    D.O.A.H. Case No. 86-4428 (Polsky Home)

    
    

20. Petitioner proved by clear and convincing evidence that Respondent violated Section 489.129(1)(d), Florida Statutes, by his failure to timely obtain the necessary permit. Respondent showed no reason for excuse or mitigation and it is inferred, in light of all circumstances, that his omission was clearly done with willful or deliberate disregard for the applicable building codes.

    
    

21. Section 489.129(1)(m), Florida Statutes, subjects Respondent to discipline if he is found guilty of fraud or deceit/gross negligence, incompetency, or misconduct in the practice of contracting. Respondent is specifically changed under this statute with failure to honor the guarantee given the Polskys, which is in the nature of misconduct. In this respect, only delay, not utter neglect, in making repairs of his errors and omissions has been established. The strongest evidence is of gross negligence and incompetency in contracting. In that respect, the charge has been proven by clear and convincing evidence.

    
    

    PENALTY

    
    

22. The penalty imposed should take into consideration the seriousness of the offenses, the extent to which they adversely impacted upon others, Respondent's prior record, and any mitigating circumstances. Considered in this light, it is concluded that a fine of $1,000.00 should be imposed for the single violation of Section 489.129(1)(d), Florida Statutes, and a one year suspension of his license should be imposed upon Respondent for the violation of Section 489.129(1)(m), established in DOAH Case No. 86-4428.

RECOMMENDATION

Upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED:

That Petitioner enter a final order in its case 0066199 (Boca Entrada) dismissing that cause for lack of jurisdiction, and a final order in its case 71433 (Polsky Home) finding Respondent guilty of one violation of Section 489.129(1)(d) and fining him $1,000.00 therefor, and finding Respondent guilty of misconduct/gross negligence in the practice of contracting and suspending his license for one year therefor.

DONE AND ORDERED this 13th day of July 1987, in Tallahassee, Florida.

ELLA JANE P. DAVIS, 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 13th day of July 1987.

ENDNOTE

1/ At the commencement of formal hearing, Petitioner moved ore tenus to amend paragraph 3 of the administrative complaint in DOAH Case No. 86-4427 so that it reads, "On or about October 11, 1982, the Respondent contracted with Boca Entrada to reroof a portion of the condominium complex in Boca Raton, Florida, price $17,700.00." Respondent did not oppose the amendment which was to correct the pertinent date from 1985 to 1982. The motion was granted by interlineation. (TR-7)

APPENDIX TO RECOMMENDED ORDER Case Nos. 86-4427 & 86-4428

The following constitute rulings pursuant to Section 120.59(2), Florida Statutes, upon the Petitioner's proposed findings of fact. Respondent submitted none.

Case No. 86-4427

1. Rejected for the reasons set out in FOF 1 and 6.

2. Covered in FOF 2.

3-4. Rejected as stated as not supported by the record as a whole as covered in FOF 4.

5-6. Accepted as modified in FOF 5 to conform with the record as a whole. 2nd #6. Covered in FOF 4 and 9.

Case No. 86-4428

1. Covered in FOF 1.

2. Cumulative; covered in FOF 2. 3-4. Covered in FOF 10.

1. Covered in FOF 11.

2. Covered in FOF 12.

3. Covered in FOF 11.

4. Covered in FOF 15.

COPIES FURNISHED:

Fred Seely, Executive Director Construction Industry Licensing Board Department of Professional Regulation

130 North Monroe Street Tallahassee Florida 32399-0750

G. Vincent Soto, Esquire

Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32399-0750

Robert Bradley

5810 N.W. 30th Avenue Miami, Florida 33142

Van Poole, Secretary

Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32399-0750

Joseph A. Sole, Esquire

Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32399-0750

Docket for Case No: 86-004427

Orders for Case No: 86-004427