STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

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

)

Petitioner, )

)

vs. ) CASE NO. 87-0025

)

CLARENCE L. PITTS, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, this cause was heard by Linda M. Rigot, the assigned Hearing Officer of the Division of Administrative Hearings, on January 15, 1988, in Fort Lauderdale, Florida.

Petitioner Department of Professional Regulation, Construction Industry Licensing Board, was represented by G. Vincent Soto, Esquire, Tallahassee, Florida; and Respondent Clarence L. Pitts did not appear and was not represented.

Petitioner filed an Administrative Complaint against Respondent alleging various violations of the construction contracting laws, and Respondent timely requested a formal hearing. Accordingly, the issues for determination herein are whether Respondent is guilty of the allegations contained within the Administrative Complaint, and, if so, what disciplinary action should be taken, if any.

Petitioner presented the testimony of Ben Corrado, Jack Jacobs, and by way of deposition Robert B. Hilson. Additionally, Petitioner's Exhibits numbered 1-

6 were admitted in evidence. Only Petitioner submitted post-hearing proposed findings of fact ire the form of a proposed recommended order. Petitioner's proposed findings numbered 2-7 have been adopted in substance in this Recommended Order. However, Petitioner's proposed finding of fact numbered 1 has been rejected as not constituting a finding of fact.

FINDINGS OF FACT

1. At all times material hereto, Respondent has been a registered roofing contractor in Fort Lauderdale, Florida, having been issued license no. RC 0039866.

   
   

2. At all times material hereto, Respondent was the qualifying agent for Wayne Coatings Industries, Inc.

   
   

3. On or about April 22, 1983, Wayne Coatings Industries, Inc., entered into a contract with Jack Jacobs on behalf of the Christopher House Condominium located in Pompano Beach, Florida, whereby Wayne Coatings Industries, Inc.,

   agreed to reroof the entire building with a polyurethane roofing coating. The contract in the amount of $42,552 called for Wayne Coatings to clean and prepare all roof areas and parapet walls, install roof vents, apply urethane foam insulation over all roof areas up to the top of the parapet walls and then coat the entire roof area including the parapet walls and all projections.

   
   

4. Upon completion of the work, Wayne Coatings issued to Christopher House a five-year warranty.

   
   

5. Almost immediately after completion of the work, major leaks appeared in the urethane foam roofing system. Representatives of the Christopher House contacted Wayne Coatings almost daily, but Wayne Coatings responded rarely. On the few occasions when an employee of Wayne Coatings came to the condominium, that person would be present for a few moments and then leave. Nothing was done by Wayne Coatings to correct the leaks.

   
   

6. A subsequent inspection revealed that the roof was not properly cleaned and prepared prior to application of the urethane foam roofing system, the parapet walls were left bare and the foam itself was applied in a grossly uneven fashion. Additionally, the subsequent coating of the foam was improperly done. The foam roofing system traps water both above and below it.

   
   

7. Neither Wayne Coatings nor Respondent have honored the guarantee given to Christopher House Condominium.

   
   

   CONCLUSIONS OF LAW

   
   

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

   
   

9. The Administrative Complaint charges Respondent with violating section 489.129(1)(d), Florida Statutes, by willfully violating the applicable local law. The local building code requires that all roofing work be done in a workmanlike and competent manner. No phase of the reroofing project at the Christopher House Condominium was done in a competent or workmanlike fashion.

   
   

10. The Administrative Complaint further charges Respondent with violating section 489.129(1)(m), Florida Statutes, by being guilty of gross negligence, incompetency, fraud, deceit, or misconduct in the practice of contracting. Petitioner has met its burden of showing that the roofing project at the Christopher House Condominium was done in a grossly negligent and incompetent fashion.

    
    

11. Lastly, the Administrative Complaint charges Respondent with violating section 489.129(1)(j), Florida Statutes, by failing to discharge his supervisory duties as the qualifying agent for Wayne Coatings in violation of sections

    489.119 and 489.105(4), Florida Statutes. Section 489.119 is simply a definitional section establishing the meaning of a qualifying agent. Respondent has not violated any provision of section 489.119, Florida Statutes. However, section 489.105(4) provides that a qualifying agent

    
    

    ... has the responsibility ... to supervise, direct, manage, and control the contracting activities of the business entity with which he is connected ... [and] has the responsibility to supervise,

    direct, manage, and control construction activities on a job for which he has obtained the building permit...

    
    

    Petitioner presented no evidence that Respondent obtained the building permit for the Christopher House Condominium job and presented no evidence to show that Respondent failed to supervise or control the contracting activities of Wayne Coatings. Accordingly, Petitioner failed to prove that Respondent violated sections 489.105(4) and 489.119, Florida Statutes. Therefore, Petitioner also failed to show that Respondent violated the provisions of section 489.129(1)(j), Florida Statutes.

    
    

12. In its proposed recommended order, Petitioner recommends that Respondent be ordered to pay an administrative fine in the amount of $3,000 and that Respondent's license be suspended for a period of one year. That recommendation is appropriate, and no mitigating evidence was presented to indicate that a lesser penalty would be proper.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions of Law, it is,

RECOMMENDED that a Final Order be entered finding Respondent guilty of violating sections 489.129(1)(d) and (m), Florida Statutes, suspending Respondent's registered roofing contractor license for a period of one year, and assessing an administrative fine against Respondent in the amount of $3,000 to be paid by a date certain.

DONE and RECOMMENDED this 25th day of March, 1988, at Tallahassee, Florida.

LINDA M. RIGOT, 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 25th day of March, 1988.

COPIES FURNISHED:

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

Jacksonville, Florida 32201

G. Vincent Soto, Esquire Department of Professional

Regulation

130 North Monroe Street Tallahassee, Florida 32399-0750

Clarence L. Pitts

1712 Southwest 9th Avenue

Fort Lauderdale, Florida 33315

William O'Neil, Esquire Department of Professional

Regulation

130 North Monroe Street Tallahassee, Florida 32399-0750

Docket for Case No: 87-000025

Orders for Case No: 87-000025