STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

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

)

Petitioner, )

)

vs. ) CASE NO. 87-0442

)

EMANUEL F. MOSLEY, )

)

Respondent. )

)

RECOMMENDED ORDER

A final hearing was held in this case in Bradenton, Florida on April 9, 1987 before Donald D. Conn, a duly designated Hearing Officer of the Division of Administrative Hearings. The Department of Professional Regulation, Construction Industry Licensing Board (Petitioner), was represented by W. Douglas Beason, Esquire. Emanuel Mosley (Respondent) was not represented and did not appear at the hearing.

At the hearing, Petitioner called four witnesses to testify and introduced nine exhibits. A transcript of the hearing was filed on April 17, 1987. The Appendix to this Recommended Order contains rulings on timely filed proposed findings of fact.

FINDINGS OF FACT

1. At all times material hereto Respondent has been a registered roofing contractor in the State of Florida, having been issued license number RC- 0042963.

   
   

2. At no time material hereto did Respondent's license qualify "Energy Plus Roofing" with Petitioner.

   
   

3. Notice of the final hearing herein was provided to Respondent at his last known address of record in Bradenton, Florida, as shown on his Election of Rights form. The notice was not returned by the post office as "undeliverable" or for any other reason.

   
   

4. In April, 1988 Respondent entered into a contract to perform certain roofing work for John Beede at a contract price of $1,610. Respondent executed this contract on behalf of Energy Plus Roofing, and provided a ten year warranty on workmanship and materials. Beede paid the full contract price to Respondent for work performed, but Respondent failed to correct leaks in Beede's Florida room. In fact, after the job Beede had additional leaks in his Florida room. Respondent failed to respond to several calls from Beede for further corrective work under the ten year warranty. Finally, Beede had to have a "roof over" constructed to correct the leaks in his Florida room at an additional cost of

   $4,000.

5. Respondent did not obtain any permit from Manatee County for the work he performed for Beede, although Manatee County requires contractors to obtain permits for such jobs in excess of $200. Additionally, Respondent did not register "Energy Plus Roofing" with Manatee County, although Manatee County does require such registration.

   
   

6. In March, 1986 Respondent entered into a contract with Marie Allen for roof repair on her mobile home in Ruskin, Hillsborough County, Florida. Allen did not have any leaks in her roof at the time, but she was simply seeking preventive maintenance. Respondent contracted with Allen on behalf of Energy Plus Roofing to pressure clean her roof and "apply energy plus roof system to (her) existing roof" for a contract price of $1,000. Respondent provided a ten year warranty on workmanship and materials. After Respondent's crew pressure cleaned her roof, Allen began experiencing leaks, and she presently continues to have four leaks which she did not have before work was performed by Respondent. She has tried repeatedly to contact Respondent under the warranty, but has been unsuccessful.

   
   

7. Respondent is not registered in Hillsbourough County, and he did not obtain any permits for the Allen job. Hillsborough County requires contractors to be registered and to obtain permits for jobs such as he performed on Allen's roof.

   
   

8. The only name on Respondent's license is his own individual name, Emanuel Fred Mosley.

   
   

   CONCLUSIONS OF LAW

   
   

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

   
   

10. Section 489.129(1), Florida Statutes, provides that Petitioner may take disciplinary action against any registrant who is found guilty of any:

    
    

    1. Violation of chapter 455.

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

       (g) Acting in the capacity of a contractor under any certificate or registration issued hereunder except in the name of the certificate holder or registrant as set forth on the issued certificate or registration, or in accordance with the personnel of the certificate holder or

       registrant as set forth in the application for the certificate or registration,

       or as later changed as provided in this act.

       (j) Failure in any material respect to comply with the provisions of this act.

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

       gross negligence, incompetency, or misconduct in the practice of contracting.

       
       

11. Respondent has been charged with violating these statutory provisions in his transactions with John Beede and Marie Allen. In addition, he has been charged with violating Section 455.227(1)(a), Florida Statutes, which also allows any licensing board to take disciplinary action against any licensee who "has made misleading, deceptive, untrue, or fraudulent representations in the practice of his profession." Finally, Petitioner charged in its Amended Administrative Complaint that Respondent violated Section 489.117(2), Florida Statutes, in his transaction with Marie Allen due to the fact that Respondent was not registered in Hillsborough County to engage in roofing contracting.

    
    

12. The uncontroverted facts established at hearing prove that Respondent has violated Sections 489.117(2) and 489.129(1)(c),(g),(j), Florida Statutes. However, there was no evidence of any willful or deliberate violation or disregard of applicable building codes or laws by Respondent, nor was there any evidence of fraud, deceit, gross negligence, incompetency or misconduct in the practice of contract. No expert testimony was offered from which any finding could be made of the applicable standards which roofing contractors should follow. Without such a prerequisite finding, no conclusion of gross negligence, incompetency or misconduct can be drawn. There is no evidence of repeated violations, other than the two incidents involved herein, and no evidence of Respondent's intent or motivation. Thus, no conclusion of willful or deliberate disregard and violation can be made, nor any finding of fraud or deceit. Finally, Respondent was not charged with a violation of Section 489.119, Florida Statutes, concerning the qualifying of business organizations, and therefore no conclusion concerning a violation of this statute can be made.

    
    

13. The evidence does support the conclusion that Respondent's representations to Beede and Allen about a ten year warranty were untrue and misleading, and that he therefore was in violation of Chapters 455 and 489, Florida Statutes. It was also shown that he performed work in Hillsborough County for Allen without being registered therein in violation of Section 489.117(2), Florida Statutes. Finally, it was shown that on two occasions he performed work under the name of Energy Roofing Systems, in violation of Section 489.129(1)(c),(g),(j), Florida Statutes.

RECOMMENDATION

Based upon the foregoing, it is recommended that Petitioner enter a Final Order suspending Respondent's registration for a period of one (1) year and imposing an administrative fine of $1,000 upon Respondent.

DONE AND ENTERED this 4th day of May, 1987 in Tallahassee, Florida.

DONALD D. CONN

Hearing Officer

Division of Administrative Hearings The Oakland Building

2009 Apalachee Parkway

Tallahassee, Florida 32301

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 4th day of May, 1987.

APPENDIX TO RECOMMENDED ORDER, CASE NO. 87-0442

Rulings on Petitioner's Proposed Findings of Fact:

1. Adopted in Finding of Fact 1.

2. Adopted in Finding of Fact 2.

3-8 Adopted in Finding of Fact 4.

9 Adopted in Finding of Fact 5.

10-14 Adopted in Finding of Fact 6. 15-16 Adopted in Finding of Fact 7.

COPIES FURNISHED:

W. Douglas Beason, Esquire Department of Professional Regulation

130 North Monroe Street Tallahassee, FL 32399-0750

Emanuel Mosley

5707 5th Street East Bradenton, FL 33507

Fred Seely Executive Director

Construction Industry Licensing Board

Post Office Box 2 Jacksonville, FL 32201

Van Poole, Secretary Department of Professional Regulation

130 North Monroe Street Tallahassee, FL 32399-0750

Joseph A. Sole General Counsel

Department of Professional Regulation

130 North Monroe Street Tallahassee, FL 32399-0750

Docket for Case No: 87-000442

Orders for Case No: 87-000442