STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

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

)

Petitioner, )

)

vs. ) CASE NO. 88-0570

)

YSIDRO CID FERNANDEZ, )

)

Respondent. )

)

RECOMMENDED ORDER

On May, 25, 1989, a formal administrative hearing was held in this case in St. Petersburg, Florida, before J. Lawrence Johnston, Hearing Officer, Division of Administrative Hearings.

APPEARANCES

For Petitioner: David E. Bryant, Esquire

13014 North Dale Mabry, Suite 315

Tampa, Florida 33618

For Respondent: Ysidro Cid Fernandez, pro se

STATEMENT OF THE ISSUE

The issue in this case is whether the Construction Industry Licensing Board should discipline the Respondent, Ysidro Cid Fernandez, on the basis of the charges alleged in the Administrative Complaint which the Petitioner, the Department of Professional Regulation, filed against him on November 30, 1987.

PRELIMINARY STATEMENT

The Administrative Complaint which the Department of Professional Regulation filed against the Respondent on November 30, 1987, alleges that the contracting business which the Respondent qualified undertook a re-roofing job without a timely permit and without the necessary inspections, failed to reasonably honor a warranty it gave for the work, and was grossly negligent and/or incompetent in underestimating the cost of the job.

After several continuances, the final hearing in this case was held on May 25, 1989. At the conclusion of the hearing, the Respondent asked for and was given time to file a late exhibit--a building permit that was to exonerate him on the charge of failure to obtain a timely permit. The late exhibit was filed on June 7, 1989, and the parties were given until July 6, 1989, to file proposed recommended orders. Only the Department filed a proposed recommended order, and rulings on the Department's proposed findings of fact are contained in the attached Appendix to Recommended Order, Case No. 88-0570.

FINDINGS OF FACT

1. The Respondent, Ysidro Cid Fernandez, is licensed as a certified roofing contractor in the State of Florida, holding license number CC-C029602. The Respondent's license was in effect at all times referred to in these Findings of Fact.

   
   

2. On or about March 15, 1986, an employee of Sunshine Solar and Roofing, a roofing company for which the Respondent acted as qualifying agent, entered into a contract with Fred Chambers to re-roof a house Chambers owned at 5871 64th Terrace North, Pinellas Park, Florida. The house was a small house, with not more than 1000 square feet of living area, and the contract was to re-roof the entire house for $600 plus tax ($31.50). The shingles to be used were to be 20-year shingles. The contract also provided: "Install on front F/S [far side] 8' long 5" wide T/G [tongue in groove] board."

   
   

3. The Respondent's company did the work in April, 1986. Chambers paid the full amount of the contract, $200 down and the balance on or about May 1, 1986.

   
   

4. Despite the re-roof, the roof still leaked where it did before the work was done. When Chambers called for warranty repair work, the Respondent refused until Chambers paid what the Respondent said was the cost of extra work the Respondent claimed Chambers had had the Respondent's workers do.

   
   

5. The Respondent first came to the opinion that extra work had been done after he received invoices from his supplier indicating that his employees had ordered 1600 square feet of shingles for the job. The Respondent asserted that the contract called for only the front far side of the roof to be replaced. He bases this interpretation of the contract on the language quoted in the last sentence of Finding 2, above. The Respondent claimed that 1600 square feet was twice as much shingle as would be needed to re-roof half of the existing roof.

   
   

6. Regardless whether the Respondent's employees ordered too much shingle for the Chambers job, or where the extra shingle might have gone, if not on the Chambers roof, the contract provided for the entire Chambers roof to be replaced for the contract price. The Respondent was not justified in demanding additional money before doing warranty work.

   
   

7. The City of Pinellas Park, Florida, the governmental entity with jurisdiction over the Chambers job, required that a building permit be obtained before commencing the Chambers re-roofing construction. The City of Pinellas Park also required inspections of the Chambers re-roofing job.

   
   

8. The Respondent claimed to have timely obtained a building permit for the Chambers job and, in testimony at final hearing, detailed an elaborate story about how he went about getting one. But the Respondent's own evidence, in the form of late-filed Respondent's Exhibit 2, establishes that he did not apply for the building permit until December 17, 1987, after receiving notice through the November 30, 1987, Administrative Complaint in this case, that the Department was charging him with failure to obtain a building permit for the job.

   
   

9. Not having obtained a building permit, the Respondent did not call for the required inspections for the job.

10. The evidence did not prove that the Respondent was grossly negligent or incompetent in estimating the cost of the Chambers job. First, the evidence did not prove that the job was seriously underestimated; to the contrary, the evidence tended to show that the Respondent's employees ordered more material than needed for the job. (When this came to the Respondent's attention, he unfairly blamed Chambers for having his employees do extra work not called for by the contract.) Second, the Respondent had nothing to do with the cost estimate on the job. The Respondent's price per square foot of roof area was fixed; he depended on his employees to accurately measure the size of the roof being priced. There is no evidence how the Respondent went about training his employees to measure a roof for purposes of a cost estimate.

    
    

11. The Respondent has been disciplined by the Construction Industry Licensing Board once before. He received a reprimand in August, 1987, for failure to obtain a building permit.

    
    

    CONCLUSIONS OF LAW

    
    

12. Section 489.129(1), Florida Statutes (1987, provides that the Construction Industry Licensing Board may revoke or suspend a license, impose an administrative fine not to exceed $5,000, place a licensee on probation or reprimand or censure a licensee, if a licensee is found guilty of any of the following acts:

    
    

    (d) Willful or deliberate disregard and violation of the applicable building codes or laws of the state or of any municipalities or counties thereof.

    * * *

    (m) Upon proof that the licensee is guilty of fraud or deceit or of gross negligence, incompetency, or misconduct in the practice of contracting.

    
    

13. As found, the evidence in this case proved that the Respondent willfully and deliberately disregarded and violated the requirements of the City of Pinellas Park that the Chambers job have a building permit and inspections, in violation of Section 489.129(1)(d), Florida Statutes (1987).

    
    

14. The evidence also proved that the Respondent violated Section 489.129(1)(m), Florida Statutes (1987), by failing to reasonably honor the warranty his company gave to Chambers for the job at 5871 64th Terrace North in Pinellas Park.

    
    

15. The evidence did not prove that the Respondent was grossly negligent or incompetent in estimating the cost of the Chambers job, and the cost estimate does not constitute a violation of Section 489.129(1)(m).

    
    

16. The provisions of the Florida Administrative Code relating to the discipline appropriate for the violations in this case are:

21E-17.001 Normal Penalty Ranges. The following guidelines shall be used in disciplinary cases, absent aggravating or mitigating circumstances and subject to the other provisions of this Chapter.

* * *

(5) 489.129(1)(d): Permit violations.

1. Late permits. Contractor pulls permit after starting job but prior to completion of same and does not miss any inspections.

   First violation, letter of guidance; repeat violation, $500 fine.

2. Job finished without a permit having been pulled, or no permit until caught after job, or late permit during the job resulting in missed inspection or inspections. First violation, $250 to $750 fine; repeat violation, $1000 to $2000 fine.

* * *

(8) 489.129(1)(d): Failure to call for inspections. First violation, letter of guidance; repeat violation, $250 to $750 fine.

* * *

(11) 489.129(1)(m): Misconduct by failure to reasonably honor warranty. First violation, $250 to $750 fine; repeat violation, $500 to $1500 fine and one year suspension.

* * *

(19) 489.129(1)(m): Gross negligence, incompetence, and/or misconduct, fraud or deceit.

1. Causing no monetary or other harm to licensee's customer, and no physical harm to any person. First violation, $250 to $750 fine; repeat violation, $1,000 to $1,500 fine and 3 to 9 month suspension.

2. Causing monetary or other harm to licensee's customer, or physical harm to any person. First violation, $500 to $1,500 fine; repeat violation, $1,000 to $5,000 fine and suspension or revocation.

* * *

1. The absence of any violation from

   this Chapter shall be viewed as an oversight, and shall not be construed as an indication that no penalty is to be assessed.

   
   

   21E-17.002 Aggravating and Mitigating Circumstances. Circumstances which may be considered for the purposes of mitigation or aggravation of penalty shall include, but are not limited to, the following:

   1. Monetary or other damage to the licensee's customer, in any way associated with the violation, which damage the licensee has not relieved, as of the time the penalty is to be assessed. (This provision shall not be given effect to the extent it would contravene federal bankruptcy law.)

   2. Actual job-site violations of building codes, or conditions exhibiting

      gross negligence, incompetence, or misconduct by the licensee, which have not been corrected a of the time the penalty is being assessed.

   3. The severity of the offense.

   4. The danger of the public.

   5. The number of repetitions of offenses.

   6. The number of complaints filed against the licensee.

   7. The length of time the licensee has practiced.

   8. The actual damage, physical or otherwise, to the licensee's customer.

   9. The deterrent effect of the penalty imposed.

   10. The effect of the penalty upon the licensee's livelihood.

   11. Any efforts at rehabilitation.

   12. Any other mitigating or aggravating circumstances.

21E-17.003 Repeat Violations.

1. As used in this rule, a repeat violation is any violation on which disciplinary action is being taken where the same licensee had previously had disciplinary action taken against him or received a letter of guidance in a prior case; and said definition is to apply (i) regardless of the chronological relationship of the acts underlying the various disciplinary actions, and (ii) regardless of whether the violations in the present and prior disciplinary actions are of the same or different subsections of the disciplinary statutes.

2. The penalty given in the above list for repeat violations is intended to apply

only to situations where the repeat violation is of a different subsection of Chapter 489 than the first violation. Where, on the other hand, the repeat violation is the very same type of violation as the first violation, the penalty set out above will generally be increased over what is otherwise shown for repeat violations in the above list.

* * *

21E-17.005 Penalties Cumulative and Consecutive. Where several of the above violations shall occur in one or several cases being considered together, the penalties shall normally be cumulative and consecutive.

21E-17.007 Probation. Probation may also

be assessed in any case where, in the board's opinion, it is advisable for the public welfare, in order to assure that the licensee operates properly and within the law in the future, to require the licensee to report to the Board periodically, or to otherwise serve a probationary period.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Construction Industry Licensing Board enter a final order suspending the Respondent's license for one year and fining the Respondent

$2,500.

RECOMMENDED this 25th day of July, 1989, in Tallahassee, Florida.

J. LAWRENCE JOHNSTON Hearing Officer

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 25th day of July, 1989.

APPENDIX TO RECOMMENDED ORDER, CASE NO. 88-0570

To comply with the requirements of Section 120.59(2), Florida Statutes (1987), the following rulings are made on the Petitioner's proposed findings of fact (the Respondent not having filed any):

1. Rejected in part (the Respondent's name is not Thomas L. Jackson); otherwise, accepted and incorporated.

2. Accepted and incorporated.

3. Rejected in part; the evidence did not prove that the roof was unfinished or that the roof was done correctly or that the work was done incorrectly, only that it leaked after the work was done.

4.-6. Accepted and incorporated.

1. Rejected as not proven by the evidence. (See 3., above.)

2. Accepted and incorporated.

COPIES FURNISHED:

David Bryant, Esquire 13014 North Dale Mabry Suite 315

Tampa, Florida 33618

Ysidro Cid Fernandez 2700 North McDill Avenue Suite 204

Post Office Box 4726 Tampa, Florida 33607

Ysidro Cid Fernandez 8109 Rivershore Drive

Tampa, Florida 33604

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

Jacksonville, Florida 32201

Kenneth Easley, Esquire General Counsel

Department of Professional Regulation Northwood Centre

1940 North Monroe Street Suite 60

Tallahassee, Florida 32399-0729

Docket for Case No: 88-000570

Orders for Case No: 88-000570