STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OR PROFESSIONAL )

REGULATION, CONSTRUCTION )

INDUSTRY LICENSING BOARD, )

)

Petitioner, )

)

vs. ) CASE NO. 87-4569

)

LOUIS JOSEPH BOUCHARD, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, final hearing in the above-styled action was held on December 9, 1987, in Deland, Florida, before Robert E. Meale, Hearing Officer of the Division of Administrative Hearings.

APPEARANCES

For Petitioner: David L. Swanson, Esquire

Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32399

For Respondent: Louis J. Bouchard, pro se

801 Yellowbird

Post Office Box 6421 Deltona, Florida 32725

BACKGROUND

On August 24, 1987, Petitioner filed an Administrative Complaint against Respondent alleging that he committed gross negligence, incompetence, misconduct, fraud, or deceit, in failing to respond reasonably to service requests with respect to leakage in a roof constructed by Respondent. On September 23, 1987, Respondent executed an Election of Rights requesting a formal hearing on disputed questions of fact.

Petitioner presented four witnesses. Petitioner offered into evidence ten exhibits. All were admitted. Respondent presented one witness, himself.

Respondent offered into evidence one exhibit. It was admitted.

The transcript was filed on December 22, 1987. Petitioner filed a proposed recommended order. Respondent filed none. All of Petitioner's proposed findings have been incorporated in this Recommended Order.

FINDINGS OF FACT

1. Respondent is and at all material times has been a licensed residential contractor in the State of Florida. He holds license No. RR 0039483. He has been a licensed contractor for 36 years, including the last seven years in Florida.

   
   

2. In late December, 1985, Jessie Lee entered into a written contract with Respondent for the construction of a home at 3010 Surf Drive in Deltona, Florida. The contract called for Respondent to construct a completed house for the sum of $34,000. In the contract, Respondent warranted the house "against defects in material and workmanship for one year from date of final settlement or issuance of Certificate of Occupancy." By a separate document styled, "Contractor Warranty," Respondent attested as follows:

   
   

   1. That, for a period of one year from the date of the sale, all workmanship, and materials are guaranteed by [Respondent] and that, should any defect in workmanship become evident during that period, that defect will be repaired, replaced or corrected, as the case may be, at no cost to the

      said purchasers by [Respondent] . . . .

      
      

      The Contractor Warranty was notarized on June 13, 1986.

      
      

   2. Construction commenced in March, 1986. Sometime after the ordering of the roof trusses, Mr. Lee and Respondent agreed to the addition of a screened porch to the back of the house. Respondent commenced construction of the screened porch prior to the issuance of the building permit for the porch.

      
      

   3. The addition of the screened porch created a new roof gable. The failure to change the truss design for the rest of the roof left a roof valley that was misplaced by about two feet. The misplaced valley created a flat area on the roof. The slope or pitch in this area was no more than 2 1/2" per 12". Respondent was at all times aware that the pitch did not meet the manufacturer's minimum technical standard of 3" per 12" for the subject shingles. Respondent felt that, based on past experience, such a slight discrepancy would not cause any problems.

      
      

   4. In late May, 1986, prior to the completion of construction, Mr. Lee reported to Respondent rain leakage over the screened porch on three occasions. Respondent spread asphalt tar over the affected area on each occasion. Closing occurred on June 11, 1986. Mr. Lee made the last payment due Respondent under the construction contract on June 24, 1986.

      
      

   5. After closing, the roof continued to leak over the screened porch. Mr. Lee's many telephone calls to Respondent's office went unanswered. Mr. Lee called Respondent's home twice, but received no response. In the case of each telephone call, Mr. Lee would speak with Respondent's wife or daughter, who worked in his office, and would be assured that Respondent would be by Mr. Lee's house sometime.

      
      

   6. Mr. Lee received no response from Respondent during the rainy months of June through August, 1986. The summer rains damaged the screened porch ceiling and walls with water damage and mildew. Finally in late August, 1986, Mr. Lee

      took his problems to the Volusia County Building Department. On September 4, 1986, the Volusia County Sheriff's Office served Respondent with a Violation Notice giving Respondent ten days to fix the faulty roof. In response to this notice, Respondent sent one of his workers to Mr. Lee's house to paint over or treat the discoloration on the walls caused by water penetration. The repainting or treatment left the affected portion of the walls considerably darker than the remainder of the walls. More significantly, no repairs to the roof were attempted at this time.

      
      

   7. In late September, 1986, Mr. Lee personally visited Respondent's office. He asked Respondent when he was going to fix the roof. Respondent would not let Mr. Lee into the office. Respondent assured Mr. Lee, "I'll get it someday."

      
      

   8. Nothing further occurred until October 7, 1986, when Respondent received a building permit from the Volusia County Building Department. The permit was for a building repair job. Respondent attached to the permit a drawing dated October 5, 1986, calling for moving the valley two feet to eliminate the flat area and replace it with a 3/12 slope. No repairs were ever attempted under this permit.

      
      

   9. Mr. Lee then took his problems to Petitioner in December, 1986. On May 27, 1987, the Volusia County Sheriff's Office served Respondent with a Notice of Hearing, Notice of Violation, and Request for a Hearing before the Volusia County Building Code Enforcement Board. Mr. Lee and Respondent were jointly cited by the Volusia County Building in the Notice of Violation. The hearing was set for June 15, 1987.

      
      

   10. On June 1, 1987, Respondent received a second building permit to repair the roof. Pursuant to a request by the Volusia County Building Department, Respondent attached to the permit request architectural drawings specifying the placement of a roof "cricket" in order to relocate the mislocated valley and thereby eliminate the flat area over the screened porch. The job was completed and reinspected by the Volusia County Building Department on June 9, 1987. The June 15, 1987 hearing was then cancel led.

       
       

   11. The roof has continued to leak to some degree following this repair. Although Respondent personally inspected the interior damage in June, 1987, and promised later to repair it, he has never done so. Photographs suggest that the interior water damage is greater now than it was after Respondent's interior repair job in September, 1986. However, there is no competent evidence as to the extent of the leakage since the June, 1987, exterior repair job. Further, Mr. Lee has not contacted Respondent since June, 1987, with respect to the ongoing leakage.

       
       

   12. On August 14, 1987, Petitioner entered a Final Order in Department of professional Regulation v. Louis Bouchard, Case No. 59700. The Order approved a settlement entered into on January 30, 1986, under which Respondent admitted the allegations of the Administrative Complaint and agreed to the imposition of a $500 fine. In that case, Respondent agreed to install a fireplace following the issuance of a building permit for a house without a fireplace. Following construction of the fireplace, structural problems caused by an inadequate or absent footer and foundation required the rebuilding of the fireplace.

       CONCLUSIONS OF LAW

       
       

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

       
       

   14. Petitioner has jurisdiction over the licensing of residential contractors. Section 489.129, Florida Statutes.

       
       

   15. Discipline against a license may be imposed if a contractor "is guilty of fraud or deceit or of gross negligence, incompetency, or misconduct in the practice of contracting." Section 489.129(1)(m), Florida Statutes.

       
       

   16. Petitioner must prove the allegations of the Administrative Complaint by clear and convincing evidence. Ferris v. Turlington, 510 So.2d 292 (Fla. 1987).

       
       

   17. The allegations in the Administrative Complaint pertain to Respondent's warranty service, rather than the original construction of the roof. The evidence is clear and convincing that Respondent extended to Mr. Lee a warranty for the roof and failed to honor it.

       
       

   18. Respondent was aware of the roof leakage prior to closing and attempted quick, but unsuccessful repairs. Respondent was aware from the start of the problem with respect to the flat area and should therefore have been prepared for early, more comprehensive repairs should they have been required. Instead, Respondent ignored Mr. Lee's complaints through an entire rainy summer. Only when official action was threatened did Respondent attempt repairs. Inexplicably, he ignored the source of the problem -- the roof -- and attempted only a casual repair of the symptoms -- the interior water damage. The interior repairs ware incomplete and poorly performed.

       
       

   19. Respondent knew from the start that the mislocated valley and resulting flat area were causing the leakage. Even though he had not been in communication with Mr. Lee for some time, Respondent knew to obtain a building permit for roof repair. However, Respondent inexplicably failed to follow through performing the roof repair.

       
       

   20. Again, only with the threat of imminent official action did Respondent finally attempt a reasonable roof repair. However, even though Respondent saw the interior damage and promised to fix it later, Respondent never followed through with respect to the interior repairs. The roof continues to leak to some unknown degree. Respondent has not previously been notified of this fact. However, Respondent would have learned of this problem if he had performed the interior repairs that he promised to do.

       
       

   21. Respondent's warranty service in this case constitutes clear and convincing evidence of fraud or deceit or gross negligence, incompetency, or misconduct in the practice of contracting.

       
       

   22. Petitioner has established a disciplinary guideline calling for a fine of $250 to $0 for a first violation with respect to warranty service and a fine of $500 to $1,500, plus suspension for one year, for a second violation with respect to warranty service. Section 21E-17.001, Florida Administrative Code. Respondent offered no credible evidence in mitigation. Aggravating factors in this case are that the roof continues to leak to some degree and that the interior damage has never been repaired satisfactorily..

Based on the foregoing, it is hereby

RECOMMENDED that Respondent pay an administrative fine of $2,000 and that his license be suspended for a period of one year from the date of the Final Order.

DONE and ORDERED this 22nd day of January, 1988, in Tallahassee, Florida.

ROBERT E. MEALE

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 22nd day of January, 1988.

COPIES FURNISHED:

David L. Swanson, Esquire Department of Professional

Regulation

130 North Monroe Street Tallahassee, Florida 32399-0750

Louis J. Bouchard Post Office Box 723

Deltona, Florida 32725

William O'Neill, Esquire General Counsel

Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32399-0750

Fred Seely Executive Director

Construction Industry Licensing Post Office Box 2 Jacksonville, Florida 32201

Docket for Case No: 87-004569

Orders for Case No: 87-004569