STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

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

)

Petitioner, )

)

vs. ) CASE NO. 87-4010

)

JOHN P. TERRANOVA, )

)

Respondent. )

)

RECOMMENDED ORDER

A final hearing was held in Brooksville, Florida, on January 8, 1988 before Donald D. Conn, Hearing Officer, Division of Administrative Hearings, to consider whether the Construction Industry Licensing Board should take license disciplinary action against John P. Terranova for work performed on a residential roof in Inverness, Florida during 1986. The parties were represented as follows:

APPEARANCES

Petitioner: Lee Sims, Esquire

130 North Monroe Street Tallahassee, Florida 32399-0750

Respondent: John P. Terranova, pro se

3 Birdie Lane

Palm Harbour, Florida 33528

At the hearing, the Department of Professional Regulation, Construction Industry Licensing Board (Petitioner), introduced eleven exhibits and called Mrs. Anna Cabral, home owner, and Jim Herringshaw, building inspector, to testify. John P. Terranova (Respondent) testified on his own behalf and called Richard J. Cummings to testify; one exhibit was introduced by Respondent during the hearing, and one late-filed composite exhibit was also accepted. Official recognition was taken of final agency action in two prior cases involving Respondent.

No transcript of the hearing has been filed. The Appendix to this Recommended Order contains specific rulings on timely filed proposed findings of fact.

FINDINGS OF FACT

1. At all times material hereto, Respondent has been registered as a specialty contractor in Florida, having been issued license number RX-00492l2. He has also been, and continues to be, the qualifying agent for Stretch and Seal, Inc.

2. On July 10, 1986, Emmanuel E. Cabral entered into a contract with Stretch and Seal, Inc., for cleaning of the roof on his residence in Inverness, Florida, application of a base coat and finishing coat of Stretch and Seal on the entire roof (approximately 1,518 square feet), coating of all vents and roof edges, and coating where his flat roof meets the shingle portion of his roof. The total contract price was $1,600. Richard J. Cummings executed this contract on behalf of Stretch and Seal, as "authorized signature." Cummings is not licensed by the Construction Industry Licensing Board.

   
   

3. The Cabral contract provided a ten year warranty, and specified that, "All material is guaranteed. . . . All work to be completed in a workmanlike manner according to standard practices." The warranty was signed by Respondent, as President of Stretch and Seal, Inc.

   
   

4. Cabral made three payments in July and August, 1986 in the total amount of $1,600 for work performed on his roof pursuant to his contract with Stretch and Seal, Inc. These payments were by checks payable to "John P. Terranova." Cummings had instructed the Cabrals to make the payments directly to Respondent. At hearing, Respondent admitted receiving and cashing these checks.

   
   

5. On August 12, 1986, Emmanuel Cabral executed a Customer Work Acceptance and Job Rating Form which indicates he considered the work performed on his roof to be "satisfactory." This is the lowest rating shown on the form other than a general category marked "other."

   
   

6. The Cabrals responded to a newspaper ad about Stretch and Seal which featured Respondent, and which stated the product "protects roofs" and "stops most annoying leaks." The toll free phone number in the ad is the same one that is printed on the Stretch and Seal contract which Mr. Cabral eventually signed. When Richard Cummings came to their house to explain the product, he presented the Cabrals with a flyer describing Stretch and Seal as a "new roof sealer" that "stops leaks and protects your roof."

   
   

7. At the time they contracted with Stretch and Seal, Inc., the Cabrals' roof did not leak. Mrs. Anna Cabral testified that they were interested in insulating their roof to help the house stay cooler. The newspaper advertisement and flyer that Cummings gave them represented that the product reduces energy costs, reflects the sun's rays and insulates, plus reduces noise from wind and rain, and Mr. Cabral contracted with Stretch and Seal, Inc., based upon these representations.

   
   

8. The Cabrals' roof began to leak in October, 1986 and additional leaks continued to appear throughout their house through November, 1986. Mrs. Cabral made repeated efforts to contact Respondent or Cummings, and although workmen did appear at their house on one occasion, the Cabrals were not home, and therefore no repair work was done. Respondent failed to honor the warranty given on this job in any way. Eventually, the Cabrals had to have their roof entirely redone by another roofing company, at a cost of $2,300.

   
   

9. No local permit was obtained for the work performed on the Cabrals' roof, although a permit is required by the applicable local building code for any improvements to property valued at more than $300, except painting.

   
   

10. Respondent presented two defenses. First, he maintained that the product applied to the Cabral roof is simply a paint, and not a sealant, insulator, or weatherproofing agent. Representations about the product made by

    Respondent in newspaper ads and by his authorized agent to customers do not support Respondent's assertion at hearing. Competent substantial evidence was not presented at hearing by Respondent to rebut the clear and convincing evidence presented by Petitioner that the product applied to the Cabral roof was represented to be a sealant, insulator and weatherproofing agent. Second, Respondent maintained that he had sold the Stretch and Seal "area distributorship" to Cummings prior to this job with the Cabrals. Therefore, he argued he was not responsible for the work that Cummings performed. While Cummings did the actual work on the Cabral roof, and signed the contract with Mr. Cabral, Respondent was, and still is the qualifying agent of Stretch and Seal, Inc. It was Respondent who signed the Cabrals' warranty, and received and cashed their checks in payment for this job. The distributorship agreement between Respondent and Cummings, executed in December, 1985, specifically recites and acknowledges Cummings' responsibilities under the agreement in consideration for Respondent "using his licenses." Thus, it is clear that Stretch and Seal, Inc., continued to do business and to operate under Respondent's license, with him as qualifying agent, even after the distributorship agreement was executed.

    
    

    CONCLUSIONS OF LAW

    
    

11. The Division of Administrative Hearings has jurisdiction over the parties and subject matter in this case. Section 120.57(1), Florida Statutes. The Petitioner has the burden to prove the charges set forth in the Administrative Complaint issued against Respondent by clear and convincing evidence. Ferris v. Turlington, 510 So.2d 292 (Fla. 1987).

    
    

12. Petitioner charges that Respondent violated Section 489.129(1)(j), Florida Statutes, when he failed in a material respect to comply with provisions of Chapter 489, Florida Statutes, by exceeding the scope of his specialty contractor's license and performing roofing work he was not licensed to do in violation of Sections 489.115(1)(b) and 489.117(2). Respondent is also charged with incompetence in the performance of a roofing job, and deceit in the practice of contracting by holding his product out as a roof sealant, insulator and weatherproofing agent, and providing warranties he did not honor, in violation of Section 489.129(1)(m). Additionally, Respondent is charged with violating Section 489.129(1)(j) by failing to properly supervise work performed under his license by a company for which he was the qualifying agent, contrary to Sections 489.105(4) and 489.119. Finally, he is charged with the willful or deliberate violation of the local building code in violation of Section 489.129(1)(d), Florida Statutes.

    
    

13. The evidence presented at hearing clearly and convincing establishes that Respondent, as qualifying agent, is responsible for the work performed by Stretch and Seal, Inc., on the Cabrals' roof, and he may not shift that responsibility to Richard Cummings, who is unlicensed. In Alles v. Department of Professional Regulation, 423 So.2d 624 (Fla. 5th DCA 1982) in the Court stated:

    
    

    The obvious purpose of these statutes allowing a company to act as a contractor through a licensed contractor is to insure that projects undertaken by a company are to be supervised by one certified and licensed by the board. To allow a contractor to be the "qualifying agent" for a company without placing any requirement

    on the contractor to exercise any supervision over the company's work done under his license would permit a contractor to loan or rent his license to the company. This would completely circumvent the legislative intent that an individual, certified as competent, be professionally responsible for supervising construction work on jobs requiring a licensed contractor. . . .

    * * *

    . . . . Just as a designated agent may not lend his name to a company in order that the company may act as a contractor and then avoid his responsibility by stating that he had nothing to do with the project, neither may he or the company be permitted to relieve the designated agent of his responsibility by attempting to transfer it to one or more unnamed individuals who are not registered with the Board as qualifying agents of that company. 423 So.2d 626, 627.

    
    

14. Respondent exercised virtually no supervision over Cummings, in violation of Sections 489.105(4), and 489.119, Florida Statutes. Yet, he collected and benefited from the proceeds from this job. He provided advertisements about the product which induced the Cabrals to contact Stretch and Seal, Inc., and to contract for the work Cummings performed. The advertisements represented that "roofing" contracting would be performed, and in fact Cummings acted as a "roofing contractor" on the Cabral job, as defined at Section 489.105(3)(e). This work is specifically beyond the scope of work which can be performed by a "specialty contractor", as provided at Section 489.105(11), Florida Statutes, and therefore constitutes a violation of Sections 489.115(1)(b) and 489.117(2), Florida Statutes. Respondent's practices in this case were also deceptive in that he represented in advertisements, and through his authorized representative, that his product would seal, insulate and weatherproof a roof. However, he now contends that the product is simply a paint, apparently since a local permit is not required for painting. His actions are, therefore, also violative of Sections 489.129(1)(d) and (m), Florida Statutes. Having failed to comply with Chapter 489 in several material respects, Respondent has also violated Section 489.129(1)(j), Florida Statutes.

    
    

15. Respondent has previously been the subject to two cease and desist orders from the Construction Industry Licensing Board for practicing contracting without proper licensure. The repeated nature of Respondent's violations, the monetary damage to the Cabrals in this case, Respondent's total failure to recognize his violations, and his continued attempts to justify his actions in this case constitute aggravating factors, as specified in Rule 21E-17.002, Florida Administrative Code, which should be considered in imposing a penalty in this case.

RECOMMENDATION

Based upon the foregoing, it is recommended that the Construction Industry Licensing Board enter a Final Order revoking Respondent's specialty contractor

registration for violating Sections 489.105(4), 489.115(1)(b), 489.117(2), 489.119, and 489.129(1)(d),(j) and (m), Florida Statutes.

DONE AND ENTERED this 5th day of February, 1988, in Tallahassee, Florida.

DONALD D. CONN

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 5th day of February, 1988.

APPENDIX TO RECOMMENDED ORDER, CASE NO. 87-4010

Rulings on Petitioner's Proposed Findings of Fact:

1. Adopted in Finding of Fact 1.

2. Rejected as unnecessary.

3. Adopted in Findings of Fact 2-4. 4-5. Adopted in Finding of Fact 6.

6. Adopted in Finding of Fact 7.

7-8. Adopted in Findings of Fact 3, 8.

1. Acted in part in Finding of Fact 9, but otherwise

   Rejected as not based upon competent substantial evidence.

2. Adopted in part in Finding of Fact 8, but otherwise Rejected as not based upon competent substantial evidence.

COPIES FURNISHED:

Lee Sims, Esquire Department of Professional

Regulation

130 North Monroe Street Tallahassee, Florida 32399-0750

John P. Terranova

3 Birdie Lane

Palm Harbour, Florida 33528

Fred Seely Executive Director

Construction Industry Licensing Board Department of Professional Regulation Post Office Box 2

Jacksonville, Florida

32201 William O'Neil General Counsel

Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32399-0750

Docket for Case No: 87-004010

Orders for Case No: 87-004010