STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF PROFESSIONAL )

REGULATION, )

)

Petitioner, )

)

vs. ) CASE NO. 87-5600

)

GEORGE C. VINCENT, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, final hearing in the above-styled action was held on May 3, 1988, in Orlando, 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

Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32399-0750

For Respondent: John Sunner, Esquire

Post Office Box 1717 Casselberry, Florida 32707

BACKGROUND

On November 2, 1987, Petitioner filed an Administrative Complaint against Respondent with respect to a contract entered into by B & P Roofing, Inc., for which Respondent is qualifying agent, and Chris and Heather Peterson for roofing work on the Petersons' residence located at 1029 McKean Circle, Winter Park, Florida. The Administrative Complaint alleged that Respondent proceeded to perform the work without a timely permit having been issued, deliberately or through improper supervision, in violation of local law and Sections 489.129(1)(d), (m), and (j) 489.119, and 489.105(4), and failed to obtain all required inspections, either deliberately or through improper supervision, in violation of local law and Sections 489.129(1)(d), (m), and 489.119, and 489.105(4)

On November 3, 1987, Respondent executed an Election of Rights disputing the factual allegations and requesting a formal hearing.

At the hearing, Petitioner called four witnesses and offered into evidence eight exhibits. Respondent called four witnesses and offered into evidence two exhibits. All exhibits were admitted into evidence.

Petitioner and Respondent each filed a proposed recommended order.

Treatment accorded Petitioner's proposed findings is detailed in the Appendix. Respondent's proposed findings are adopted.

FINDINGS OF FACT

1. In July, 1986, Respondent is and at all material times has been licensed as a certified roofing contractor in the State of Florida. He holds license number CC C026475. He is the qualifying agent for B & P Roofing, Inc.

   
   

2. In July, 1986, B & P Roofing, Inc. performed a pre- closing roof inspection of the 1029 McKean residence at the request of the real estate broker handling the sale. The report, dated July 31, 1986, estimated that it would cost $1400 to reroof the flat roof areas and replace the skylights and $300 to replace some cracked tiles on the main, sloped roof. Noting that it was impossible to examine the roof membrane under the tiles, the report concludes that the repairs should be minimal.

   
   

3. Chris and Heather Peterson purchased the 1029 McKean residence on August 9, 1986. In late December, 1986, or early January, 1987, the Petersons contacted B & P Roofing, Inc. and requested that they perform the roofing repairs identified in their earlier estimate. The parties agreed that B & P Roofing, Inc. would also replace two skylights for an additional $300.

   
   

4. By Final Order filed on April 22, 1983, Petitioner reprimanded Respondent, as qualifying agent for B & P Roofing, Inc., for failing to obtain a permit and inspection in connection with a residential roof installation.

   
   

5. By Final Order filed January 23, 1984, Petitioner imposed an administrative fine of $500 against Respondent, as qualifying agent for B & P Roofing, Inc., for failure to obtain building permits on three different roofing jobs. As a result of these disciplinary actions, B & P Roofing, Inc. adopted a procedure by which each job could be readily checked in the office as to whether a permit had been obtained. A chart is posted in the office and each job is marked as to whether it requires a permit and, if so, whether a permit has been issued.

   
   

6. After the Peterson job had been obtained but before work had begun, Richard Francis Xavier McFadden, the president of B & P Roofing, Inc. noticed that the Peterson job had been posted in the office, but the "permit" column had not been checked. He asked Patricia McFadden, his wife who was performing clerical work in the office, why no permit was required for the job. She told him that she had been told by someone at the Winter Park Building Department that one was not required.

   
   

7. Mr. McFadden immediately telephoned the Winter Park Building Department to confirm that no permit would be required for the job. He spoke with Karen Clayton, who is the secretary of the Winter Park Building and Zoning Department and handles the issuance of permits, which may be ordered by telephone. Using a Roof Work Sheet dated January 7, 1987, Mr. McFadden described the job to Ms. Clayton. Ms. Clayton placed her hand over the telephone, checked with a nearby building inspector, and informed Mr. McFadden that no permit would be necessary.

   
   

8. In fact, the scope of the job required the issuance of a building permit. Ms. Clayton testified that she did not understand at the time that she spoke with Mr. McFadden that an existing roof was being torn off. She also testified that she had not previously heard the phrase, ??90 pound reroofing

   felt,!? which Mr. McFadden used to describe the job. It is apparent that Mr. McFadden accurately described the job, but Ms. Clayton misunderstood the description and gave him the wrong advice.

   
   

9. Without a permit, B & P Roofing, Inc. began the work on or about January 17, 1987, and completed the work in late January or early February, 1987. No inspection of the job was performed by the Winter Park Building Department during the job or immediately after its completion.

   
   

10. After Petitioner commenced its investigation, B & P Roofing, Inc., at the investigator's suggestion, obtained a permit on June 30, 1987, and the job passed a final inspection performed on that date or shortly thereafter.

    
    

11. Respondent was never aware of the Peterson job until after it had been completed.

    
    

    CONCLUSIONS OF LAW

    
    

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

    
    

13. Petitioner has jurisdiction over the disciplining of licenses of certified roofing contractors. Section 489.129, Florida Statutes.

    
    

14. Discipline against a license may be imposed if a contractor willfully or deliberately disregards and violates the applicable building codes or laws of the state or any municipality. Section 489.129(1)(d), Florida Statutes.

    
    

15. The qualifying agent has the duty to supervise all of the projects of the business entity for which he serves as qualifying agent. Section 489.105(4), Florida Statutes; Alles v. Department of Professional Regulation, 423 So.2d 624 (Fla. 5th DCA 1983).

    
    

16. The City of Winter Park has adopted the Standard Building Code, 1985 edition. Section 8-1, Code or Ordinances, City of Winter Park, Florida. Section 103 of the Standard Building Code, 1985 edition, provides that a person shall not "repair" any building without first obtaining a building permit.

    
    

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

    
    

18. In proceeding without a permit and thereby not obtaining an inspection, B & P Roofing, Inc. relied on assurances from a competent representative of the Winter Park Building Department that there was no need for a permit. Although such assurances may have involved a representation of law and thus could form no basis for estoppel, the question in this case is not whether B & P Roofing, Inc. and the Petersons were thereby relieved of the necessity of obtaining a building permit, but whether Respondent or his company representatives willfully or deliberately violated local law. Under the circumstances, Ms. Clayton's representation negates a finding of any willfulness.

    
    

19. Moreover, it does not appear that Respondent improperly supervised the company with respect to the obtaining of permits. As a consequence of the earlier disciplinary penalties involving the failure to obtain permits, Respondent and B & P Roofing, Inc. adopted internal procedures designed to

    ensure that jobs would not be started without the necessary permits. The failure in this case was not a failure of these procedures but an unfortunate misunderstanding by a representative of the Winter Park Building Department.

    
    

20. Petitioner has therefore failed to prove by clear and convincing evidence that the failure to obtain the necessary building permit on the Peterson job was due to Respondent's willful or deliberate disregard of local law or his improper supervision of the job.

RECOMMENDATION

In view of the foregoing, it is hereby

RECOMMENDED that a Final Order be entered dismissing the Administrative Complaint.

ENTERED this 20th day of May, 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 20th day of May, 1988.

APPENDIX

Treatment Accorded Petitioner's Findings

1. Adopted, except that the last two sentences are rejected as unnecessary.

2. Adopted.

3. Rejected as irrelevant, except that the last sentence is rejected as against the greater weight of the evidence. Poor workmanship or improper materials is generally not probative of the issues whether Respondent deliberately or through improper supervision failed to obtain a permit or inspection. The only situation in which poor workman- ship or improper materials might be relevant would be if the workmanship or material so deviated from the norm that Respondent and the employees of B & P Roofing, Inc. knew that the job could never pass an inspection. The evidence failed to prove such a deviation in this case. The testimony of Julian Garcia, Petitioner's expert witness, tended to prove such a deviation, but ultimately failed because of the inadequate familiarity of the wit- ness with the specifics of the Peterson job, such as the degree of scope present in the flat areas of the roof

   and the specific roofing material used in these areas.

4. Adopted in substance.

5. Rejected as unnecessary.

6. First sentence is adopted. Second sentence, although strictly speaking is true, is rejected to the extent that it implies that no inspection took place. Such

   an implication is against the greater weight of the evi- dence. Ms. Clayton's testimony explains the omission from the record. First, the building inspector whom Rich McFadden testified performed the inspection died

   shortly thereafter. Second, the inspector probably had no opportunity to record it before the file was closed because the inspection likely took place on the same

   day or within days of the closing of the file. Ms. Clayton's candid testimony in this regard offers little basis for inferring that the absence of a record entry means no inspection took place, especially in view of the positive testimony of Mr. McFadden that he accom-

   panied the inspector to the house for the final inspection.

7. Adopted, except that two telephone contacts took place before the work began.

8. Rejected as unnecessary and against the greater weight of the evidence. Mr. and Mrs. McFadden testified in detail to the circumstances surrounding why no permit was obtained. Against such detailed testimony, Respondent's questionnaire response is entitled to little weight.

9. Adopted.

10. Rejected as against the greater weight of the evidence. There was an insufficient predicate for much of Mr. Garcia's testimony for the reasons set forth in paragraph 3 above.

11-12. Adopted.

COPIES FURNISHED:

David L. Swanson, Esquire Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32399-0750

John Sunner, Esquire Post Office Box 1717

Casselberry, Florida 32707

Fred Seely Executive Director

Construction Industry Licensing 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: 87-005600

Orders for Case No: 87-005600