DEPARTMENT OF PROFESSIONAL ) REGULATION, CONSTRUCTION ) INDUSTRY LICENSING BOARD, )
vs. ) CASE NO. 88-1621
Respondent. )
This matter came on for hearing in Gainesville, Florida, before Robert T. Benton II, Hearing Officer of the Division of Administrative Hearings, on July 12, 1988. On July 27, 1988, the Division of Administrative Hearings received the parties' proposed recommended orders. The attached appendix addresses proposed findings of fact by number. The parties are represented by counsel:
For Petitioner: Belinda H. Miller, Esquire
For Respondent: Kenneth S. Davis, Esquire
By administrative complaint dated September 14, 1987, petitioner alleges that respondent, "at all times relevant ... licensed ... as ... [a r]egistered general contractor," "was associated with and responsible for" a "contracting business" that undertook a job in Archer, Florida, for Arthur Jones, which "generally consisted of ... an addition to Customer's house"; and that "[r]espondent proceeded without a timely permit having been issued ... [and] without obtaining all required inspections, either deliberately or through improper supervision, in violation of 489.129(1)(d), (m), (j); 489.119; 489.105(4)"; and that "[r]espondent failed to properly supervise the jobsite activities on said job," in violation of the same statutory provisions.
Whether petitioner should take disciplinary action against respondent for the reasons alleged in the administrative complaint?
In response to petitioner's first request for admissions, respondent conceded that he has been licensed at all pertinent times as a registered general contractor, and that he now holds license No. RG 0016059.
New Veep
At one time, Alachua County building officials allowed Donald Russell, who owns Gator Aluminum, Inc. and serves as its president, to secure building permits for aluminum carport roofs and similar jobs that Gator Aluminum, Inc. performed in the county. Mr. Russell holds an aluminum specialty contractor's license. After June 5, 1986, however, the Alachua County authorities no longer allowed Mr. Russell's license to qualify his company for this work.
As a result of this change, Mr. Russell sought out respondent Bruce Kirby, whom he had known for some 15 years. Mr. Kirby had spent "20 years around the aluminum business," but he worked for the University of Florida as a refrigerator mechanic at the time.
Mr. Kirby became vice-president of Gator Aluminum, Inc., while continuing his employment with the University. He agreed to work for the company by reviewing applications for building permits; alerting Mr. Russell or Bob Baxter, another Gator Aluminum, Inc. employee, to any problems he saw with the plans; applying or authorizing his wife to apply and secure a building permit; and by looking over the work after it was done, before calling for inspection by a building official. For these services he was paid $50 to $100 for each job.
Remodeling
On March 12, 1987, Arthur and Doris Jones signed a contract with Gator Aluminum, Inc. to pour a concrete slab, install a carport roof, hang awnings, cover the roof of the main house with aluminum, and do miscellaneous other work at the Jones' residence in Archer, which is in Alachua County. Petitioner's Exhibit No. 1.
Work began a week later. No building permit was posted before the concrete was poured, and none was obtained until April 6, 1987, five days after Bruce Kirby's wife applied for the permit on his behalf. Petitioner's Exhibit No. 2. Pouring the concrete slab before posting a building permit did not violate the building code, which requires no permit for such work.
Only after the permit was posted did aluminum work begin. On May 11, 1987, construction completed, the Jones paid the balance due under the contract.
Dry Clothes Wet
Mrs. Jones was folding clothes in the new carport on May 18, 1987, when it began raining. Her husband had hardly finished remarking on the fact that none of the rainwater collecting on the carport roof was flowing through the downspouts when the roof creaked, then buckled, spilling gallons of water and damaging vehicles, lawn chairs and clay pots. Mrs. Jones escaped unscathed, but part of the roof hit Mr. Jones a glancing blow on the shoulder.
The rain on the 18th was the first that anybody recalled since the carport's completion a week earlier. Experts agreed that the weight of the rainwater brought the roof down; water weighs eight pounds a gallon. But the evidence did not show why such a quantity of water accumulated on the roof.
Perhaps the roof was installed without the requisite pitch, although a preponderance of the credible evidence put the vertical drop at nearly a half
inch for every horizontal foot, which should have been sufficient. Debris left by workmen may have clogged the drains. No trees stood nearby.
In the collapse, the carport roof pulled away from the fascia board to which it had been attached. In keeping with industry standards, the workmen had used three-inch screws in the rafter tails and three one-inch screws per pan elsewhere along the fascia board. The fascia board itself was old and riddled with dry rot, which careful inspection might have revealed, but the significance of this is unclear. Apparently, the three-inch screws pulled out of the rafters, which were sound.
When Mr. Russell heard what had happened, he came promptly, and offered to replace the roof. Mr. and Mrs. Jones turned him down, however, and instructed him and all other employees of Gator Aluminum, Inc. to stay off the premises. Eventually, Gator Aluminum's insurer paid to replace the roof and for the damages the collapse had occasioned.
Inspection and Supervision
In the spring of 1987, Mr. Kirby's father-in-law was dying of leukemia up the country, and his own mother, who also lived out of state, had a heart attack. Even when he was in town, moreover, he was not accustomed to look over the work Gator Aluminum, Inc., performed under the authority of permits he obtained until aluminum mechanics, many of whom he had known for several years and in all of whom he had confidence, had finished the project.
At no time before the roof collapsed had respondent Bruce Kirby ever set foot on the Jones job site. He never talked to Mr. Russell or anybody else about the job while it was in progress. Whether this lack of supervision contributed to the untimely demise of the carport roof was not clear from the evidence.
In Mr. Kirby's experience and in the industry generally, a delay of a week or even much longer between completion of a job and the contractor's call for final inspection is not uncommon. Many jobs, including the job Gator Aluminum, Inc. undertook for the Jones, require only a final inspection. Nobody told Mr. Kirby that work at the Jones' house had finished.
After Mr. and Mrs. Jones barred Gator Aluminum, Inc.'s employees from the premises, Mr. Kirby was no longer in a position to inspect the work to determine whether the job met building code requirements. He never called for a final inspection by the building official, although Mr. Russell asked that the roof be inspected, in December of 1987.
CONCLUSIONS OF LAW
By statute, the Construction Industry Licensing Board may revoke, suspend, or deny the issuance or
renewal of the certificate or registration of
a contractor and impose an administrative fine not to exceed $5,000, place a contractor on probation, or reprimand or censure a contractor if the contractor, or if the business entity or any general partner, officer, director, trustee, or member of a business entity for which the contractor is a
qualifying agent, is found guilty of any of the following acts:
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(d) willful or deliberate disregard and violation of the applicable building codes or laws of the state or of any municipalities or counties thereof.
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(j) Failure in any material respect to comply with the provisions of this act.
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(m) Upon proof that the licensee is guilty of fraud or deceit or of gross negligence, incompetency, or misconduct in the practice of contracting.
Section 489.129(1), Florida Statutes (1987).
Petitioner has alleged violations of each of the foregoing subsections. The "provisions of this act," Section 489.129(1)(j), Florida Statutes (1987), to which the administrative complaint refers read, as follows:
489.105 Definitions. -- As used in this act:
(4) "Qualifying agent" means a person who possesses the requisite skill, knowledge, and experience, and has the responsibility, to supervise, direct, manage, and control the contracting activities of the business entity with which he is connected; who has the responsibility to supervise, direct, manage, and control construction activities on a job for which he has obtained the building permit; and whose technical and personal qualifications have been determined by investigation and examination as provided in this act, as attested by the department.
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489.119 Business organizations; qualifying agents. --
If an individual proposes to engage in contracting in his own name, registration or certification may be issued only to that individual.
If the applicant proposes to engage in contracting as a partnership, corporation, business trust, or other legal entity, the applicant shall apply through a qualifying agent; the applicant shall state the name of the partnership and of its partners, the name of the corporation and of its
officers and directors, the name of the business trust and its trustees, or the name of such other legal entity and its members; and the applicant shall furnish evidence of statutory compliance if a fictitious name is used. Such application shall also show that the qualifying agent is legally qualified to act for the business organization in all matters connected with its contracting business and that he has authority to supervise construction undertaken by such business organization. The registration or certification, when issued upon application of a business organization shall be in the name of
the qualifying agent, and the name of the business organization shall be noted thereon. If there is a change in any information that is required to be stated on the application, the business organization shall, within 45 days after such change occurs, mail the correct information to the department.
(3)(a) The qualifying agent shall be certified or registered under this act in order for the business organization to be certified or registered in the category of the business conducted for which the qualifying agent is certified or registered. If any qualifying agent ceases to be affiliated with such business organization, he shall so inform the department. In addition, if such qualifying agent is the only certified or registered individual affiliated with the business organization, the business organization shall notify the department of the termination of the qualifying agent and shall have a minimum of 60 days from the termination of the qualifying agent's affiliation with the business organization in which to employ another qualifying agent. The business organization may not engage in contracting until a qualifying agent is employed.
The qualifying agent shall inform the department in writing when he proposes to engage in contracting in his own name or in affiliation with another business organization, and he or such new business organization shall supply the same information to the department
as required of applicants under this act.
Upon a favorable determination by the board, after investigation of the financial responsibility, credit, and business reputation of the qualifying agent and the new business organization the department shall issue, without an examination, a new certificate or registration in the qualifying agent's name, and the name of the new business organization shall be noted thereon...
But the administrative complaint alleges only that repondent "proceeded without a timely permit having been issued," "without obtaining all required inspections," and that he "failed to properly supervise the jobsite activities." The administrative complaint makes no allegation that respondent was derelict in not advising petitioner of his affiliation with Gator Aluminum, Inc. Petitioner has made no charges against the corporation itself.
License revocation proceedings have been said to be "'penal' in nature." State ex rel. Vining vs. Florida Real Estate Commission, 281 So.2d 487, 491 (Fla. 1973); Kozerowitz vs. Florida Real Estate Commission, 289 So.2d
391 (Fla. 1974); Bach vs. Florida State Board of Dentistry, 378 So.2d 34 (Fla. 1st DCA 1979)(reh. den. 1980). Strict procedural protections apply in disciplinary cases, and the prosecuting agency's burden is to prove its case clearly and convincingly. Ferris vs. Turlington, 510 So.2d 292 (Fla. 1987).
See Addington vs. Texas, 441 U.S. 426 (1979); Ferris vs. Austin, 487 So.2d 1163 (Fla. 5th DCA 1986); Anheuser-Busch, Inc. vs. Department of Business Regulation,
393 So.2d 1177 (Fla. 1st DCA 1981); Walker vs. State Board of Optometry, 322 So.2d 612 (Fla. 3rd DCA 1975); Reid vs. Florida Real Estate Commission, 188 So.2d 846, 851 (Fla. 2nd DCA 1966). A licensee's breach of duty justifies revocation only if the duty has a "substantial basis," Bowling vs. Department of Insurance, 394 So.2d 165, 173 (Fla. 1st DCA 1981) in the evidence, unless applicable statutes and rules create a clear duty, which the evidence shows has been breached.
Petitioner did not prove that the work done before the building permit was posted violated the building code. The building inspector testified that no permit was required for pouring the concrete. While petitioner proved that respondent failed to call for a final inspection, the owners prevented the company for whom he worked from seeing the entire job through to a satisfactory close. In the circumstances, Mr. Kirby's failure to call for a final inspection did not amount to "[w]illful or deliberate disregard and violation of the applicable building codes." Section 489.129(1)(d), Florida Statutes (1987).
But petitioner showed that respondent never visited the site, never discussed the conduct of the job with the men who did the work, and never supervised the job in any way, although work went on for over a month after the building permit issued. In these circumstances, securing a building permit for work with which he had no further connection amounted to "misconduct in the practice of contracting." Section 489.129(1)(m), Florida Statutes (1987).
That petitioner fine respondent Bruce Kirby one thousand dollars ($1,000). DONE AND ENTERED this 7th day of September, 1988, in Tallahassee, Florida.
ROBERT T. BENTON, II
Filed with the Clerk of the Division of Administrative Hearings this 7th day of September, 1988.
APPENDIX TO RECOMMENDED ORDER, CASE NO. 88-1621
Petitioner's proposed findings of fact Nos. 1 through 11, 14, 15 and 16 have been adopted, in substance, insofar as material.
With regard to petitioner's proposed findings of fact Nos. 12 and 13, see findings of fact Nos. 8,9 and 10.
Respondent's proposed findings of fact have been considered in preparation of the recommended order, but bare not addressed here because they are unnumbered.
Belinda H. Miller, Esquire
Kenneth S. Davis, Esquire
Lawrence A. Gonzalez Secretary
Bruce D. Lamb General Counsel
