STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
DEPARTMENT OF PROFESSIONAL ) REGULATION, )
)
Petitioner, )
)
vs. ) CASE NO. 87-4571
)
REX HAWLEY, )
)
Respondent. )
)
RECOMMENDED ORDER
Pursuant to notice, final hearing in the above-styled action was held on December 18, 1987, in Lakeland, Florida, before Robert E. Meale, Hearing Officer of the Division of Administrative Hearings.
The parties were represented as follows:
For Petitioner: David L. Swanson, Esquire
Staff Attorney
Department of Professional Regulation
130 North Monroe Street Tallahassee, Florida 32399
For Respondent: Rex Hawley, pro se
42 Peachtree Lane Zephyrhills, Florida 34249
BACKGROUND
On August 19, 1987, Petitioner filed an Administrative Complaint against Respondent with respect to work that he did for Joyce E. Hamer pursuant to a contract dated February 14, 1987. The Administrative Complaint alleged that Respondent agreed to construct a screened room enclosure and concrete carport, as well as to install a spa. The Administrative Complaint alleged that Respondent and his employees were not licensed to construct the screened enclosure and that deficiencies in the work, caused by Respondent himself or his failure to supervise his employees, arose when Respondent failed to repair damage caused by the work. Respondent was thus alleged to be guilty of fraud or deceit or gross negligence, incompetence, or misconduct in the practice of contracting, in violation of Section 489.129(1)(m), Florida Statutes, and exceeding the scope of his license, in violation of Sections 489.117(2) and 489.129(1)(j), Florida Statutes.
On September 22, 1987, Respondent filed an Election of Rights under which he disputed the factual allegations and requested a formal hearing.
On December 1, 1987, Petitioner served a Motion to Amend the Administrative Complaint. The Amended Administrative Complaint, which was attached to the
motion, added allegations that the contract called for the shingling of a roof and the construction of a concrete driveway and that Respondent was not licensed to construct a concrete carport and driveway, shingle a roof, or install a spa.
Over Respondent's objection, renewed at the commencement of the hearing, Petitioner was granted leave to file the Amended Administrative Complaint.
Respondent then moved, ore tenus, for a continuance, which was denied. At the beginning of the hearing, Respondent timely filed with the undersigned his responses to Petitioner's Request for Admissions.
At the hearing, Petitioner called three witnesses and offered into evidence four exhibits. All were admitted into evidence, with the exception of one photograph that was ruled irrelevant. Respondent called two witnesses, including himself, and offered into evidence six exhibits. All but one were admitted. The excluded exhibit was a photocopy of a newspaper article purporting to state the law governing the scope of a worker's liability when an owner serves as his own contractor.
The transcript was filed on February 4, 1988. Petitioner and Respondent each filed a proposed recommended order. Treatment accorded the proposed findings is detailed in the Appendix.
FINDINGS OF FACT
Respondent is and at all material times has been a licensed specialty contractor in the State of Florida. He holds license number RX 0034241. He holds this license in his personal name. He does business as Rex Hawley Aluminum Contractor, of which he is the sole proprietor. He is not the qualifying agent for this entity. He is licensed in Pasco County, Florida, as a registered aluminum specialty contractor only.
Respondent entered the aluminum contracting business in 1973. At that time, he bought shares in his brother-in-law's business, Dun-rite, Inc., which was then engaged in aluminum contracting.
Respondent is one of 70 directors of the board of the Aluminum Association of Florida, which consists of 3000 members. He is the Secretary and Treasurer, as well as chair of the Code and Compliance Committee, of the Pasco County and Hernando County chapters of this trade association.
From time to time, Herbert Wade ("Skip") Hunter works as an independent contractor for Respondent. Mr. Hunter initially met with Joyce E. Hamer in September, 1986, to begin negotiations concerning improvements to her mobile home in Pasco County, Florida. At all times material hereto, Mr. Hunter acted as a duly authorized agent for Respondent when dealing with Ms. Hamer; however, Mr. Hunter had apparent but not actual authority to enter into a contract, on Respondent's behalf, to re-roof Ms. Hamer's mobile home with shingles.
Mr. Hunter eventually submitted to Ms. Hamer a written proposal for the job. The proposal called for, among other things, a panel or pan roof, which is made of aluminum. Ms. Hamer never acted on this proposal. After several months, Mr. Hunter concluded that Ms. Hamer had no interest in the proposal that he had made.
In February, 1987, Ms. Hamer contacted Mr. Hunter and expressed interest in the improvements that they had earlier discussed. Negotiations soon resulted in a new written proposal, which Ms. Hamer accepted on February 14,
1987. The new proposal differed from the old one in that, among other things, it called for a shingle roof rather than the more expensive pan roof. This provision was consistent with Ms. Hamer's concern during negotiations over the price of the job.
Respondent had never met or communicated with Ms. Hamer prior to her acceptance of the second proposal. He was unaware that Mr. Hunter had proposed a shingle roof until Mr. Hunter returned to the office with the contract, which by that time had been signed by both parties. The contract was signed on February 14, 1987, which was a Saturday. On the following Monday or Tuesday, February 16 or 17, 1987, Respondent visited Ms. Hamer for the purpose of discussing her choice of roof. The parties disagree as to what was said during this discussion.
Ms. Hamer testified that she had left the choice of roof to Mr. Hunter and that he selected shingles. Her testimony was unclear as to the purpose of Respondent's visit, although she implied that it was in preparation for the commencement of construction. Respondent testified that when he learned from Mr. Hunter that he had agreed to re-roof with shingles, Respondent told Mr. Hunter that they could not do such work. Respondent testified that he visited Ms. Hamer expressly for the purpose of convincing her that she should select a pan roof instead of shingles.
Ms. Hamer's testimony is not credible on the selection of roofing materials. Her finances were tight. The job could not begin until she received a bank loan for the improvements. She had borrowed just enough to cover the improvements. The pan roof cost $2000 more than the shingle roof. Ms. Hamer naturally would have preferred the less expensive shingle roof, especially given her expressed preference for the appearance of shingles. On the other hand, Respondent's interests were better served by the installation of the more expensive pan roof, which he could do with his built-in profit margin. Respondent believed that he could not lawfully perform the shingle re-roofing job. Based on these facts, as well as the relative demeanor and credibility of the parties, as set forth below, the greater weight of the evidence supports Respondent's version that he tried to convince Ms. Hamer to agree to a pan roof, but was unsuccessful.
Ms. Hamer had not lived in the subject mobile home at any time material hereto. When she first met Mr. Hunter, she was living with her elderly and infirm mother in a mobile home next door to the subject mobile home. Ms. Hamer desired the improvements so that she and her mother could move into Ms. Hamer's mobile home.
Ms. Hamer testified that her mobile home was in habitable condition at the time of the negotiations. She expressly testified that the roof did not leak prior to the work performed by Respondent, although, after repeated questioning on this point, she admitted on cross examination that one wall in the bedroom had a single spot showing water damage prior to February, 1987.
Respondent and Mr. Hunter disputed Ms. Hamer's testimony in this regard. They testified that the roof over the back bedroom showed evidence of serious leaking prior to the commencement of work. Mr. Hunter testified that the day that Ms. Hamer signed the contract they went into the back bedroom and discussed the water leakage from the roof and wall. He noted that the carpet was soaked and there were water stains on the ceiling. He also saw a plastic
sheet on the bed. Respondent testified to seeing the same conditions later, but prior to the commencement of work. Respondent testified that the window frame in the bedroom was rotten.
This conflict in testimony must also be resolved in favor of Respondent. Part of the reason is Ms. Hamer's demeanor and general credibility as a witness, as set forth below. In addition, Ms. Hamer testified reluctantly to any prior water damage in her bedroom. Although appearing to understand the questions, she tried on three or more occasions to avoid testifying to preexisting water damage to the wall. Ms. Hamer testified that she replaced the roof because it was seven years old and she wanted to coordinate it with the rest of the addition. She testified that when she first bought the mobile home she intended to replace the roof when it wore out with one of a lighter color in order to lower her cooling bills. She felt that seven years was the life expectancy of the roof.
Respondent disputed whether the new shingles were lighter in color than the old shingles. Given her tight financial situation, Ms. Hamer probably would not have replaced the roof until it was necessary to do so--that is, when it began leaking. It is less likely that she would have prematurely replaced a serviceable roof merely for the sake of appearances or marginal savings on her cooling bills. On the other hand, Mr. Hunter's credibility on the issue of preexisting water damage was enhanced when he testified frankly on cross examination that he did not notice, prior to the re-roofing, all of the damage depicted in Petitioner's photographs. If he were lying, he would presumably have seized the opportunity to embellish the extent of preexisting interior damage.
The work commenced as soon as Ms. Hamer received her loan proceeds, which was a few days after she signed the contract. The loan itself was based on an appraisal that was performed on January 22, 1987, and delivered on February 2, 1987. The appraisal found the value of the proposed improvements to be $17,399, which is considerably in excess of the $15,754 price of the first proposal (which included the pan roof) or the $13,895 price of the accepted proposal. Assuming that Ms. Hamer did not obtain the appraisal on the basis of the older proposal, the fair market value of the work performed by Respondent was about $3500 more than he charged her.
On February 16, 1987, Kustom Koncrete applied for and received a building permit for the concrete work, which included the screened enclosure floor, a ramp to the carport, a carport floor, and the driveway. On February 18, 1987, C & H Jordan applied for and received a building permit for the electrical work. On February 25, 1987, Southern Pools applied for and received a building permit for the installation of the pre-plumbed spa. On the same date, Dun-Rite, Inc. applied for and received a building permit for the addition of screen walls. Dun-Rite, Inc. is the name that the Pasco County Building Department used for Respondent when issuing building permits. Respondent did not mark up any of the subcontractors' invoices in order to make a profit on their labor and materials.
When inspecting the concrete foundation laid by Kustom Koncrete on February 18, 1987, Mr. Roger Groover, a building inspector for the Pasco County Building Department, noticed re-roofing activity for which no permit had been issued. He immediately issued a stop-work order. Respondent then applied for a building permit on Ms. Hamer's behalf, using a letter dated February 17, 1987, in which she had appointed him as her agent to obtain a permit to install
shingles on her home. On February 18, 1987, a building permit for re-roofing was issued showing that the owner was the contractor.
The testimony is in conflict concerning the circumstances surrounding the original re-roofing job. The dispute arises over what was agreed to at the meeting between Respondent and Ms. Hamer on February 16 or 17, 1987. Respondent testified that when he was unsuccessful in persuading Ms. Hamer to agree to a pan roof, even after he offered to do the work at his cost, he told her that he could not do the work. However, he testified that he agreed to obtain the shingles for Ms. Hamer and deliver them to the work site, but they would be installed by laborers who, although normally working for Respondent, would be working for her and not him. Consistent with Respondent's version, it was during this visit that Ms. Hamer signed the above-described February 17 letter. Respondent testified that he warned Ms. Hamer at that time that he would not be responsible for the roof. Respondent testified that he agreed to pay for the labor and materials on Ms. Hamer's behalf and then back out the amount of these payments from the contract price.
Ms. Hamer disputed all of Respondent's testimony on this point. This dispute in critical testimony is the most difficult to resolve. Respondent's version lacks any internal inconsistencies. It is therefore necessary to rely upon the demeanor of the witnesses and their general credibility.
Respondent and Mr. Hunter were frank and straightforward in their testimony. Not all of their testimony placed Respondent in the most favorable light and they recognized this fact. Ms. Hamer, by way of contrast, was evasive. Her answers frequently failed to respond to the question, even after warning. She contradicted herself many times in her own testimony. For instance, she testified unequivocally that Respondent was present when the contract was signed, then testified that he was not. She testified that she had not met Respondent prior to the signing of the contract, then testified that she had. She testified that she had not spoken with Respondent in the last eight months before the hearing, then testified that she had spoken with him within a couple of months prior to the hearing.
Ms. Hamer's credibility was also damaged by her unsuccessful attempt to impose upon Respondent the responsibility for paying two invoices from Suburban Propane. Ms. Hamer produced these invoices from a carefully maintained notebook that she brought with her to the hearing. She testified that Respondent improperly failed to pay these bills. Upon further examination of the witness, it became clear that one of these items was for the filling of the tank that provided the fuel to heat her spa--an item for which Respondent was clearly not responsible. After much evasion, Ms. Hamer finally admitted that the second invoice was not to purchase the original propane tank but to replace it with a larger tank. Ms. Hamer's earlier testimony regarding Respondent's unsatisfied responsibilities as to these invoices appears to have been offered with either reckless indifference or conscious disregard to the facts. For these reasons, I expressly find Respondent's version of the facts in Paragraph
18 to be true.
The re-roofing began on February 17, 1987, and was completed a few days later. There was no rain for the next six weeks. Although all the other work was completed during the greater portion of this time, Ms. Hamer did not move into the mobile home and offered no reason as to why she did not. One likely inference, given the circumstances, is that the interior had suffered such damage prior to the work that the mobile home was uninhabitable. When it finally rained on March 28, 1987, the roof leaked extensively.
After several complaints from Ms. Hamer, Respondent contracted with Rathel's Roofing to re-roof the mobile home at Respondent's expense. Respondent paid Rathel's Roofing $1400 for the new roof. The re-roofing was accomplished on or about April 29, 1987. Ms. Hamer testified that there continues to be some leakage between the screened room and the main portion of the mobile home However, no evidence established the extent of this problem or that it was the responsibility of Respondent rather than the roofer, whom Ms. Hamer testified did all that she asked to be done.
Mr. Hunter, who also works as a sales agent for one or more pool contractors in Pasco County, testified that it is the practice in Pasco County for a pool contractor to enter into a contract with a customer for the construction of a pool and then to enter into subcontracts with electrical and plumbing subcontractors for the electrical and plumbing work. Respondent testified that pool contractors in Pasco County and throughout the state customarily contract to build screened enclosures, even though not licensed to do so, and then subcontract the construction of the enclosure an aluminum contractor such as himself.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the parties and the subject matter. Section 120.57(1), Florida Statutes.
Petitioner has jurisdiction over the licensing of specialty contractors. Section 489.129, Florida Statutes.
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.
Discipline against a license may be imposed if a contractor fails in any material respect to comply with Chapter 489, Florida Statutes. In this case, Petitioner alleges in the Amended Administrative Complaint that Respondent violated Section 489.117(2), Florida Statutes, by exceeding the scope of his registration in Pasco County.
Petitioner must prove the allegations of the Amended Administrative Complaint by clear and convincing evidence. Ferris v. Turlington, 510 So.2d 292 (Fla. 1987).
Petitioner's Exhibit Number Three purports to set forth the relevant portions of the Pasco County Building Code. However, nothing in this exhibit prohibits Respondent from engaging in contracting outside of his aluminum specialty. There are definitions of a "contractor," "aluminum contractor," and "specialty contractors," but there is no language restricting the practice of these types of contractors. Nor is any restrictive language of the ordinance cited in the Administrative Complaint or Amended Administrative Complaint.
Petitioner's failure to produce at or prior to the hearing a copy of the Pasco County ordinance expressly prohibiting the alleged contracting practices of Respondent is fatal to its allegations that Respondent contracted outside the scope of his license. Mobley v. State, 143 So.2d 821 (Fla. 1962); Stephens v.
Anderson, 75 Fla. 575, 79 So.205 (1918). Although these cases involve criminal proceedings, the same principle has been applied to license-revocation
proceedings. Poirier v. Department of Health and Rehabilitative Services, 351 So.2d 50 (Fla. 1st DCA 1977).
Petitioner has therefore failed to prove by clear and convincing evidence that Respondent violated Section 489.117(2), Florida Statutes, by contracting outside the scope of his license under the law of Pasco County.
Petitioner's failure to cite local law deprived Respondent of notice, but represented more than a procedural deficiency. Respondent's subcontracting of the spa and concrete work was consistent with local practice, which, even if at odds with unidentified local law, is consistent with state law. Rule 21E- 15.015, Florida Administrative Code, provides that a "specialty structure contractor," whose services are limited to the aluminum metal, vinyl and fiberglass screening material construction trade, "shall subcontract with a licensed qualified contractor in the field concerned, all other work incidental to that which is defined herein but which is the work of a trade other than that of a specialty structure contractor." Rule 21E- 15.015(2)(d), Florida Administrative Code. Specialty structure contractors may, subject to applicable law, construct "screened porches, screened enclosures, . . . mobile home panel roof-overs, residential glass window enclosures, vinyl panel window enclosures,
. . ." as well as "masonry concrete work . . . limited to foundations, slabs and block kneewalls incidental to the aluminum and allied materials construction work," but excluding foundations altering the structural integrity of the building. Rule 21E-15.015(2)(a), (b) and (c), Florida Administrative Code.
Moreover, Chapter 489 does not apply to the sale or installation of any finished products or materials that are not fabricated into and a permanent fixed part of the structure, with the exception of certain large swimming pools. Section 489.103(6), Florida Statutes.
Assuming arguendo that Petitioner's failure to introduce the restrictive provisions of the Pasco County ordinance were not fatal to its allegations that Respondent exceeded the scope of his license, the pre-plumbed spa is not a fixture and is thus exempt from Chapter 489 and the concrete work is authorized as incidental to the other work; and, of course, both jobs could lawfully be subcontracted to licensed contractors, as Respondent did. Assuming arguendo as above, with respect to the re-roofing, Petitioner failed to prove by clear and convincing evidence that Respondent unlawfully performed the re- roofing job or unlawfully contracted to perform the re-roofing job.
For the reasons noted above, the greater weight of the evidence supports Respondent's version that he did not perform the re-roofing job. Petitioner has failed to prove by clear and convincing evidence that Respondent did anything more than assist Ms. Hamer in her performance, as owner-contractor, of the re-roofing job.
Because Petitioner did not perform the re-roofing job, his entering into a contract calling for a shingle re-roofing was no more unlawful that his entering into a contract calling for a spa and concrete work. Again, Petitioner failed to prove how this was unlawful under local law, especially in light of state law to the contrary.
Petitioner's proof that Respondent unlawfully entered into a contract fails in another respect. Petitioner may not prove Respondent's liability merely by showing what it asserts to be misconduct by one of Respondent's agents. See, e.q., Poirier v. Department of Health and Rehabilitative Services, 351 So.2d 50 (Fla. 1st DCA 1977), (licensee's employee, who sold hearing aids in violation of licensing law, not shown to have done so with licensee's knowledge: "[i]t would
be unfair to penalize an employer for the unauthorized actions of his employees unless the employer knew or should have known of the employee's actions"); Taylor v. State Beverage Department, 194 So.2d 321 (Fla. 2d DCA 1967) (alcoholic beverage licensee not absolute insurer of conduct of his agents and employees so as to lose license for their isolated misconduct); Federgo Discount Center v.
Department of Professional Regulation, 452 So.2d 1063 (Fla. 3d DCA 1984) (pharmacy permittee not strictly liable for illegal sale of prescription drugs by licensed pharmacist-employee); Bach v. Florida State Board of Dentistry, 378 So.2d 34 (Fla. 1st DCA 1979) (unlawful acts of dental assistant not imputed to dentist in license revocation proceeding because he was not fully informed or wilfully ignorant of agent's misconduct; "principal 'has a right to presume that his agent has followed his instructions, and has not exceeded his authority."')
There was no evidence that Respondent committed fraud or deceit in the practice of contracting. The only credible and relevant evidence of defective workmanship concerns the initial re-roofing job. For the reasons noted above, Ms. Hamer bears the responsibility for this work as the owner-contractor. Further, most of the interior damage of which Ms. Hamer complained existed prior to the job.
When the roof failed, Respondent further rebutted any suggestion of gross incompetence, neglect, or misconduct when, in the hope of avoiding any problems with Ms. Hamer, he, at his own expense, promptly contracted with Rathel's Roofing to re-roof Ms. Hamer's mobile home. This was done at considerable expense to Respondent, especially in light of the job's modest original price and Respondent's slim profit margin. Subsequent problems with the roof, if any, are a matter involving Ms. Hamer and Rathel's Roofing, not Respondent and Petitioner.
In view of the foregoing, it is hereby
RECOMMENDED that Respondent be found not guilty of all charges and these proceedings be dismissed.
ENTERED this 22nd day of February, 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 February, 1988.
APPENDIX
Treatment Accorded Petitioner's Proposed Findings of Fact Proposed Findings 1 through 4 are adopted.
Proposed Finding 5 are adopted, except that the written authorization was obtained prior to the stop work order, the letter was signed on February 17, 1987. The stop work order on the roof was issued when the inspector visited the site to check the concrete work. Judging from his entry on the Kustom Koncrete permit, the date of this inspection, and thus the stop work order, was February 18, 1987.
Proposed Findings 6 through 9 are rejected as unsupported by the evidence, except that Ms. Hamer's lack of knowledge as to the scope of Respondent's license and Respondent's failure to reimburse Ms. Hamer for interior damage is irrelevant and unnecessary, and Respondent's hiring of a roofer at Ms. Hamer's request and about four weeks after the first rains after the initial re-roofing is adopted.
Treatment Accorded Respondent's Proposed Findings of Fact
The portions of Respondent's letter dated February 11, 1988, and filed on February 18, 1988, constituting proposed findings are adopted in substance.
COPIES FURNISHED:
DAVID L. SWANSON, ESQUIRE
DEPARTMENT OF PROFESSIONAL REGULATION
130 NORTH MONROE STREET TALLAHASSEE, FLORIDA 32399-0750
REX HAWLEY, PRO SE
42 PEACHTREE LANE ZEPHYRHILLS, FLORIDA 34249
FRED SEELEY EXECUTIVE DIRECTOR
CONSTRUCTION INDUSTRY LICENSING BOARD POST OFFICE BOX 2
JACKSONVILLE, FLORIDA 32201
WILLIAM O'NEIL GENERAL COUNSEL
DEPARTMENT OF PROFESSIONAL REGULATION
130 NORTH MONROE STREET TALLAHASSEE, FLORIDA 32399-0750
| Issue Date | Proceedings |
|---|---|
| Feb. 22, 1988 | Recommended Order (hearing held , 2013). CASE CLOSED. |
| Issue Date | Document | Summary |
|---|---|---|
| Jun. 16, 1988 | Agency Final Order | |
| Feb. 22, 1988 | Recommended Order | Licensed specialty contractor not guilty of exceeding scope of county registration in absence of proof of county restrictions on license. |
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