STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

)

RECOMMENDED ORDER

The final hearing in these consolidated cases was held on May 10, 1988, in Tampa, Florida, before Donald D. Conn, Division of Administrative Hearings. The parties were represented as follows:

For Petitioner: David Bryant, Esquire

220 East Madison Street, Suite 530 Tampa, Florida 33602

For Respondent: William E. Whitlock, III, Esquire

116 East Third Avenue Tallahassee, Florida 32303

The issue in these cases is whether the Department of Professional Regulation, Construction Industry Licensing Board (Petitioner) should take license disciplinary action against Joseph H. Rayl (Respondent) based upon allegations in the Administrative Complaints resulting from roofing contracting work performed during 1986. The Petitioner introduced twelve exhibits and called seven witnesses. Respondent testified on his own behalf and called one additional witness. The transcript of this hearing was filed on July 8, 1988, and the parties requested, and were granted, an extension until August 1, 1988 to file proposed findings of fact. A ruling on each timely filed proposed finding of fact submitted by the parties is included in the Appendix to this Recommended Order.

FINDINGS OF FACT

1. At all times material hereto, Respondent was licensed by the Construction Industry Licensing Board as a registered roofing contractor (RC- 0034055), building contractor (CB-C033206), and certified roofing contractor (CC-C035625). At the time of hearing, license RC-0034055 had expired and was no longer in effect.

   
   

2. Although Petitioner introduced a "certification of licensure", executed by its custodian of records which purports to establish prior disciplinary action by the Construction Industry Licensing Board against Respondent, said certification references license number CG-C024378. There is no documentation

   in the record to establish that Respondent has license number CG-C024378, and in any event if this is, in fact, his license, this case does not involve license number CG-C024378. The records' custodian was not present to testify or to be cross-examined, and therefore this apparent discrepancy in the certification is unexplained. Further, the only documentation introduced to support prior disciplinary action by the Board against one of Respondent's licenses, is a certified copy of an order dated August 7, 1985 (Case No. 0051210), but this case involves license RC-0034055, which expired in July 1987 and is no longer in effect. Therefore, it has not been established by evidence in this record that Respondent has previously been subject to disciplinary action by the Construction Industry Licensing Board concerning his current valid licenses, CB- C033206 and CC-C035625.

   
   

3. Respondent was the qualifying agent at all times material hereto, of Unique Construction, Inc., 1302 North Clearview Avenue, Tampa, Florida.

   
   

4. On February 25, 1986, George Katsarelis entered into a sales contract with Unique Construction, Inc., to reroof his entire house at 6 Venetian Court, Tarpon Springs, Florida. Respondent was not present when the contract was executed, and had not met Katsarelis at the time work commenced on the job. Katsarelis specified to the salesman representing Unique Construction, Inc., that he wanted to be sure all required local permits were pulled for this job.

   
   

5. Work on the Katsarelis roof began within only a few days of the execution of the sales contact. Crews from Unique Construction tore off approximately 80% of the Katsarelis roof before a City of Tarpon Springs building inspector stopped work on the job because no permit had been obtained. Thereafter, it took two days for Unique to put a temporary cover over Katsarelis' uncovered roof while a permit was being obtained. A permit was finally obtained on March 19, 1986, and the work was completed. Katsarelis paid Unique Construction, Inc., $7,000, the full contract amount, for reroofing of his home.

   
   

6. Between February 25, 1986, and December 1987, Katsarelis had to repeatedly call Unique Construction since his roof leaked every time it rained. A ten foot ceiling section in his Florida room eventually caved in due to these leaks.

   
   

7. In December 1987, Respondent came to Katsarelis' home for the first time and decided to reroof the whole house for a second time. No additional payment was required or made by Katsarelis for this second reroofing job. After a hard rain in April 1988 his roof again leaked, and within a week prior to hearing, Respondent made a third attempt to correct Katsarelis' leak problem.

   
   

8. According to expert testimony and evidence offered at hearing by Owen Baynard, who was accepted as an expert in roofing, work performed by Unique Construction on the Katsarelis roof was incompetent and the result of a lack of proper supervision of the work crews by the qualifying agent, Respondent. The job fails to meet the standards of local building practices. There was improper and insufficient preparation of the roof surface, a lack of adequate adhesive, nailing, and mopping to meet Sections 101, 107, 109 and 113 of the Southern Standard Building Code Roof Coverings standards, applicable in this case. The only way to remedy Katsarelis' continuing leak problem is to completely redo all work done by Unique Construction on his roof, and completely reroof his house in a workmanlike manner.

9. As qualifying agent for Unique, Respondent was responsible for beginning work on Katsarelis' roof without obtaining or assuring that someone else had obtained a local permit for the job. A permit was not posted on the site when this work began, in violation of local building code requirements. Respondent failed to obtain required local building department inspections on the job.

   
   

10. Respondent's actions on the Katsarelis job, as qualifying agent and in actions taken personally on two occasions to correct continued leakage, were incompetent and of substandard quality.

    
    

11. On December 17, 1986, Lawrence E. Burkett entered into a sales contract with Unique Construction, Inc., to reroof his home on 62nd Avenue, N.E., in St. Petersburg, Florida. Work commenced shortly after this contract was executed, and upon completion Burkett paid Unique $3,657, the contract amount.

    
    

12. Respondent admits that leaks continued to exist in Burkett's roof for nine or ten months after Unique's crews worked on his roof. Finally, on September 16, 1986, Unique's crew replaced a section of roof and this corrected the leaking.

    
    

13. In an attempt to correct or prevent damage from leakage, Unique's crews installed pans between Burkett's drop ceiling and the roof to catch water which was leaking into his Florida room.

    
    

14. A permit was not posted on the Burkett job, but the record does not establish whether a local permit for this job was required to be posted.

    
    

15. On or about February 23, 1987, Respondent was issued a letter of reprimand by the United Construction Trades Board of the City of Tampa. However, no action was taken against his local certificate. This reprimand resulted from a roofing job performed by Respondent on the home of Gerald T.

    Minnick in late 1986. Repeated attempts by Respondent to correct leakage in the Minnick roof failed.

    
    

    CONCLUSIONS OF LAW

    
    

16. The Division of Administrative Hearings has jurisdiction over the parties, and the subject matter in these causes. Section 120.57(1), Florida Statutes. The Petitioner has the burden of establishing the alleged violations of Chapter 489, Florida Statutes, by clear and convincing evidence. Ferris v. Turlington, 510 So.2d 292 (Fla. 1987).

    
    

17. As qualifying agent for Unique Construction, Inc., Respondent was responsible for the supervision, direction and control of all jobs performed by that company. Sections 489.105(4) and 489.119, Florida Statutes.

    
    

18. In pertinent part, Section 489.129(1), Florida Statutes, provides that the Construction Industry Licensing Board may discipline any licensee who is found guilty of:

    
    

    * * *

    (d) Willful or deliberate disregard

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

    * * *

    1. Disciplinary action by any municipality or county, which action shall be reviewed by the state board before the state board takes any disciplinary action of its own.

       
       

    2. 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.

    
    

    The evidence clearly establishes that Respondent was disciplined by the United Construction Trades Board of the City of Tampa on February 23, 1987, for roofing work performed in late 1986 for Gerald T. Minnick. Additionally, the evidence establishes that Respondent's actions on roofing work performed in 1986 for George Katsarelis and Lawrence L. Burkett were incompetent and failed to meet industry standards. As such, his conduct constitutes a violation of Section 489.129(1)(i), (j), and (m), set forth above. It has not been established that Respondent's failure to obtain or post local building permits was in willful or deliberate disregard of any local building code, but rather appears to have been the result of a misunderstanding or confusion about what the local codes required. Thus, a violation of Section 498.129(1)(d) has not been proven.

    
    

19. The Construction Industry Licensing Board has adopted Rule 21E-17.001, Florida Administrative Code, which sets forth guidelines for imposing license disciplinary action against licensees found to be in violation of Chapter 489, Florida Statutes. There is no evidence in the record of prior violations by Respondent involving his currently active licenses which are subject to disciplinary action in these proceedings, and therefore, this will be treated as his first violation. However, since there is proof of more than one violation of Section 489.129(1)(m), an additional penalty for a repeat violation should be assessed. For the first offense of Section 489.129(1)(i), and (m), Florida Statutes, a penalty of from $500 to $1,500 may be assessed, with an additional penalty of from $1,000 to $1,500 and a suspension of 3 to 9 months, for the repeat violations Section 489.129(1)(in), Florida Statutes. Rule 21E- 17.001(16),(19)(a), :a Administrative Code.

RECOMMENDATION

Based upon the foregoing, it is recommended that the Construction Industry Licensing Board enter a Final Order suspending Respondent's licenses numbered CB-C033206 and CC-C035625 for a period of six (6) months and imposing an

administrative fine of $2,500; provided that after the expiration of thirty (30) days from the issuance of the Final Order if Respondent pays said fine in full, his license shall be immediately reinstated.

DONE AND ENTERED in Tallahassee, Leon County, Florida, this 5th day of August, 1988.

DONALD D. CONN

Hearing Officer

Division of Administrative Hearings The Oakland Building

2009 Apalachee Parkway

Tallahassee, Florida 32399-1050

Filed with the Clerk of the Division of Administrative Hearings this 5th day of August, 1988.

COPIES FURNISHED:

David Bryant, Esquire

220 East Madison Street Tampa, Florida 33602

William E. Whitlock, III, Esquire

116 East 3rd Avenue Tallahassee, Florida 32303

Fred Seely, Executive Director Department of Professional Regulation Construction Industry Licensing Board Post Office Box 2

Jacksonville, Florida 32201

William O'Neil, Esquire General Counsel

Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32399-0750

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AGENCY FINAL ORDER

=================================================================

STATE OF FLORIDA DEPARTMENT OF PROFESSIONAL REGULATION CONSTRUCTION INDUSTRY LICENSING BOARD

DEPARTMENT OF PROFESSIONAL REGULATION,

Petitioner,

vs. CASE NO.: 74364, 78535, 80184 DOAH CASE NOS.: 87-0611

JOSEPH H. RAYL, 87-2695

LICENSE NO.: CB C033206, 87-3350

Respondent.

/

FINAL ORDER

THIS MATTER came before the Construction Industry Licensing Board pursuant to Section 120.57(1)(b)(9), Florida Statutes, on April 13, 1989, in Tampa, Florida, for consideration of the Recommended Order (a copy of which is attached hereto and incorporated herein by reference). The Petitioner was represented by Douglas A. Shropshire. The Respondent was present and represented by counsel at the Board meeting.

Upon consideration of the hearing officer's Recommended Order, and the arguments of the parties and after a review of the complete record in this matter, the Board makes the following:

FINDINGS OF FACT

1. The hearing officer's findings of fact are hereby approved and adopted in toto.

   
   

2. There is competent, substantial evidence to support the hearing officer's findings of fact.

CONCLUSIONS OF LAW

1. The Board has jurisdiction of this matter pursuant to the provisions of Section 120.57(1), and Chapter 489, Florida Statutes.

   
   

2. The hearing officer's conclusions of law are hereby approved and adopted in toto.

   
   

3. Respondent is guilty of violating Section 489.129(1)(d), (i), (j), and (m), Florida Statutes.

   
   

4. The penalty recommended by the Hearing Officer is hereby approved and adopted in part and rejected in part for those reasons stated at the above referenced Board meeting the record of which is hereby adopted and fully incorporated herein by reference.

   
   

5. There is competent, substantial evidence to support the Board's findings and conclusions.

WHEREFORE, IT IS HEREBY ORDERED AND ADJUDGED:

Respondent's licenses numbered CB C033206 and CC 0035625 shall be suspended for a period of twenty (20) years and an administrative fine of two thousand five hundred dollars ($2,500.00) shall be imposed; PROVIDED, that after the expiration of thirty (30) days from the issuance of the final order; if Respondent pays said fine in full, his licenses shall be immediately reinstated.

Pursuant to Section 120.59, Florida Statutes, the Parties are hereby notified that they may appeal this Final Order by filing one copy of a Notice of Appeal with the Clerk of the Department of Professional Regulation, 130 N. Monroe Street, Tallahassee, Florida 32301, and by filing the filing fee and one copy of the Notice of Appeal with the District Court of Appeal within thirty

(30) days of the effective date of this Order.

This Order shall become effective upon filing with the clerk of the Department of Professional Regulation.

DONE AND ORDERED this 1st day of May, 1989.

E. E. SIMMONS, CHAIRMAN Construction Industry Licensing Board

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a true and correct copy of the foregoing Final Order has been forwarded by U.S. Mail to

Mr. Joseph H. Rayl

P.O. Box 23384

Tampa, Florida 33622

and by hand delivery/United States mail to the Board Clerk, Department of Professional Regulation and its Counsel, 130 North Monroe Street, Tallahassee, Florida 32399-0750, on or before 5:00 p.m., this 23rd day of May, 1989.

Docket for Case No: 87-000611

Orders for Case No: 87-000611