STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

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

)

Petitioner, ) CASE NO. 88-2492

)

vs. )

)

FRANCIS A. PARK, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was held in this cause on August 24, 1988 in St. Petersburg, Florida, before Diane A. Grubbs, a Hearing Officer with the Division of Administrative Hearings.

APPEARANCES

For Petitioner: Belinda H. Miller, Esquire

Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32399-0750

For Respondent: Francis A. Park, Pro se

6104 South MacDill Avenue Tampa, Florida 33611

ISSUES

1. Whether the Respondent aided and abetted an unlicensed contractor by obtaining a permit for a roofing job performed by the unlicensed contractor;

   
   

2. Whether the work on the job failed to fully comply with the local building codes;

   
   

3. Whether the Respondent gave a guarantee on the job and thereafter failed to reasonably honor the guarantee; and

   
   

4. Whether Respondent failed to properly supervise the job site activity.

   
   

   BACKGROUND

   
   

   On January 22, 1988, the Department of Professional Regulation filed an Administrative Complaint charging Respondent with violating several sections of Chapter 489, Florida Statutes, in connection with a re-roofing job performed for Carol Kilgore. On April 14, 1988, Respondent disputed the allegations of fact contained in the administrative complaint and requested a formal hearing pursuant to Section 120.57(1), Florida Statutes.

   At the hearing, Petitioner presented the testimony of Carol Kilgore, the Respondent, Charles Doty, Leroy Rison, and Norma Pinner. Petitioner's Exhibits

   1 through 11 were admitted into evidence; however, Petitioner's Exhibit 10 was admitted only to the degree that it could be considered to supplement or explain other evidence.

   
   

   A transcript of the proceeding has been filed, and Petitioner has filed Proposed Findings of Fact and Conclusions of Law. A ruling on each proposed Findings of Fact has been made in the Appendix to this Order.

   
   

   FINDINGS OF FACT

   
   

   1. At all times material to this action, Respondent was licensed by the Construction Industry Licensing Board as a registered roofing contractor, holding License No. RC0030450.

      
      

   2. Carol Kilgore is the daughter of Beula Relihan, who owns a rental home located at 207 East Selma in Tampa, Florida. Mrs. Relihan is 86 years old, and for several years Mrs. Kilgore has been managing the property. In early 1987, Mrs. Kilgore was involved in obtaining estimates to replace the roof at the rental home.

      
      

   3. After obtaining estimates from contractors listed in the yellow pages, which Mrs. Kilgore felt to be high, Mrs. Kilgore responded to an advertisement for roofing work located in the Money Saver. She called the number listed in the advertiser, talked to Leroy Rison, and asked him to come to the house and give her an estimate. On or about February 26, 1987, Leroy Rison and his nephew, Gary Terrell, visited Mrs. Kilgore after looking at the job site, and wrote out an estimate for replacing the roof of $1,650.00. Mr. Terrell wrote the proposal which reflected the work to be done, the price, and the proposed beginning and finishing date. However, before any contract was entered into, Mrs. Kilgore discovered that neither Rison or Terrell were licensed contractors. She explained that she wanted only a licensed contractor who could pull the permit to perform the work. Although Mr. Terrell and Mr. Rison are willing to work for a homeowner if the homeowner will obtain the permit, Mrs. Kilgore insisted that she wanted a licensed contractor. Therefore, Mr. Rison recommended the Respondent, and later called the Respondent to advise him of the job.

      
      

   4. The next day, February 27, 1987, Respondent met Mrs. Kilgore and wrote a contract proposal on a form with a printed heading "MacDill Roofing", to which in handwriting was added "& Services." Respondent operates under the name of, and is the qualifying agent for, MacDill Services. The contract prepared by the Respondent merely copied the proposal submitted by Terrell and Rison, including the same price and the same misspelled words. The contract was accepted and signed by Ms. Kilgore's mother. Mrs. Kilgore paid Respondent $650.00, with the balance to be paid upon successful completion of the contract. Work was scheduled to begin the following day, Saturday, February 28, 1987 and be completed by Monday, March 2, 1987.

      
      

   5. The following Saturday work began. Respondent obtained the permit for the job, and apparently purchased the materials and had them delivered. Leroy Rison worked on the job and hired the laborers. Gary Terrell also worked on the job. One of the men Rison hired, Earl, worked for a roofing company during the week but did not have a license. Mr. Rison could not remember the name of any of the other men who worked on the job. Leroy Rison was not an employee of

      MacDill Roofing or MacDill Services, but he had worked for Respondent on other occasions.

      
      

   6. Although Respondent contends that he went by the job site on three or four occasions, staying at the job site between 1 and 2 hours on each occasion, his testimony is not credible. Charles Doty, who was the tenant in the rental home, had received a leg injury which forced him to stay home during this entire period of time. The only time Mr. Doty was gone was for an hour and half on Saturday to attend a therapy session. Mr. Doty never saw Respondent on the job site, although he had heard Respondent's name mentioned by Mr. Rison. Mrs. Kilgore also visited the job site on several occasions and she never saw the Respondent at the job site. Respondent simply did not supervise the job site activities.

      
      

   7. On March 3, 1987, the roof was scheduled for final inspection by the building department. Mrs. Kilgore went to the house to wait for the building inspector. After several hours, she left to get a soft drink. She was gone only five minutes, but when she returned, she discovered that the building inspector had come and gone, and a "green tag", indicating that the house had passed inspection, had been left on the porch. Mrs. Kilgore was very upset because she felt that the roofing work had not been done properly. She went to the building supervisor at City Hall and asked him if he could send the inspector back to the house so that she could point out the problems. The building supervisor agreed to send the inspector back to the house.

      
      

   8. The building department inspector was Terry Scott. On March 3, 1987, Mr. Scott had approximately 20 or 25 inspections to do. When he first went to the house he just looked around quickly and left a green tag. He admitted that a thorough inspection was only done if a homeowner complained. When Mr. Scott returned to the house on March 3, 1987, he still did not do a thorough inspection. However, he did issue a "red tag" which listed certain deficiencies that would have to be corrected before the roof could pass inspection. The red tag required that the contractor "replace bad wood where needed and install

      drip-edge where needed." Normally, when a red tag is issued, the contractor corrects the deficiency and calls for another inspection. That did not occur in this case.

      
      

   9. On April 9, 1987, Inspector Scott met Mr. Park at the job-site to discuss problems with the roof. On that day, a more thorough inspection was performed. Another red tag was issued and the following deficiencies were noted: "Bad wood not replaced--Wall flashing not properly installed. Flashing around chimney not proper--Felt under drip-edge." Respondent did not correct these deficiencies and never called for another inspection. The permit expired without the roof being approved by final inspection.

      
      

   10. Although not all the deficiencies noted in the inspection constitute code violations, the Tampa Building Code does require that rotten wood be replaced and the contract specified that the rotten decking would be replaced. Nevertheless, after Respondent completed the job, rotten wood remained in place. The replacement of the rotten wood was noted in both red tags. Respondent never attempted to correct this deficiency.

       
       

   11. On the day the property initially passed inspection, March 3, 1987, Respondent called Mrs. Kilgore and requested the remaining $1,000 owed on the contract price. Mrs. Kilgore refused to pay the Respondent since she was dissatisfied with the work and the first red tag had issued. At some point, apparently after the red tag issued in April, Respondent decided that he was not

       going to get any more money from Mrs. Kilgore. Other than asking for the money on March 3, 1987, Respondent has not attempted to collect the remainder of the money from Ms. Kilgore; however, he has also not attempted to correct the code violations and other deficiencies. Since Respondent did not collect the remainder of the money owed, Respondent did not pay Leroy Rison, and Mr. Rison did not pay the laborers who performed the work.

       
       

   12. As the contractor on this job, Respondent had full responsibility for ensuring that the work was done properly and that the roof passed final inspection. Respondent failed to supervise the work on the job, and the re- roofing was not done in a workmanlike manner. In essence, Respondent abdicated his responsibilities as the contractor on the job, and allowed the work to be performed by unsupervised unlicensed persons.

       
       

   13. The roofing material used was supposed to be fiberglass shingle guaranteed for 20 years. There was no evidence presented that something other than the material specified was used or that the shingles were not installed in accordance with the manufacturer's specifications. The roof did not leak after the work was completed. No evidence relating to a guarantee, other than the guarantee related to the shingles, was presented.

       
       

   14. Respondent has previously been disciplined by the Construction Industry Licensing Board. On September 10, 1986, a 61 paragraph Administrative Complaint was filed against Respondent which alleged, among other things, willful violation of local law; failure to qualify a firm through which he was operating; gross negligence, incompetence, misconduct, fraud, or deceit in the practice of contracting; failure to discharge supervisory duties as a qualifying agent; and aiding and abetting an unlicensed person to evade the provisions of Chapter 489. On March 26, 1987, Respondent signed a stipulated settlement with the Department of Professional Regulation admitting to all the allegations set forth in the Administrative Complaint. The stipulated disposition was that Respondent's licensure would be suspended for two years and indefinitely thereafter until an administrative fine in the amount of $3,000 was paid. The stipulation was adopted by Final Order of the Construction Industry Licensing Board rendered June 9, 1987.

       
       

       CONCLUSIONS OF LAW

       
       

   15. The Division of Administrative Hearings has jurisdiction over the parties to and subject matter of this proceeding. Section 120.57(1), Florida Statutes (1987).

       
       

   16. Section 489.129(1), Florida Statutes gives the Construction Industry Licensing Board the power to take disciplinary action against a licensed contractor and provide, in pertinent part, as follows:

       
       

       1. The Board may revoke, suspend, or deny the issuance of 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 . . . is found guilty of any of the following acts

          * * *

          1. willful or deliberate disregard

             and violation of the applicable building

             codes or laws of the state or of any municipalities or counties thereof.

             
             

          2. Aiding or abetting any uncertified or unregistered person to evade any pro- vision of this act.

          * * *

          (g) Acting in the capacity of a con- tractor under any certificate or re- gistration issued hereunder except in the name of the certificateholder or registrant as set forth on the issued certificate or registration . . .

          * * *

          (j) Failure in any material respect to comply with the provisions of this act.

          * * *

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

          
          

   17. The Administrative Complaint filed in this case cites to all of the sub-sections listed above as the statutory basis for seeking disciplinary action against Respondent. Petitioner has the burden of proving by clear and convincing evidence that the Respondent committed the acts alleged. Ferris v. Turlington, 510 So.2nd 292 (Fla. 1987)

       
       

   18. "Contracting" is defined as "engaging in business as a contractor." Section 489.105(5), Florida Statutes. Section 489.105(3) defines "contractor" as "the person who is qualified for and responsible for the entire project contracted for and means . . . the person who, for compensation, undertakes to construct, repair alter, remodel . . . or improve any building . . . ." In this case the Respondent was the person who, for compensation, entered into a contract to repair the roof on the house in question, and he was responsible for ensuring that the work was done properly. However, the evidence in this case established that Respondent did nothing more than pull the permit for the job and buy the materials. His failure to perform even a minimal amount of supervision at the job site constitutes gross negligence, incompetency, and misconduct in the practice of contracting, and he is subject to discipline subject to Section 489.129(1)(m), Florida Statutes.

       
       

   19. Respondent is also guilty of willful or deliberate disregard and violation of the applicable building code. The evidence established that Respondent failed to replace rotten boards on the job. This was not only a violation of the contract, it was a violation of the local building code. Respondent's conduct was willful in that red tags were issued on at least two occasions noting this violation. Respondent made no effort to correct the violation. Therefore, Respondent is guilty of violating 489.129(1)(d), Florida Statutes.

       
       

   20. Respondent was licensed as the qualifying agent for MacDill Services. The contract entered into evidence indicates that Respondent was contracting under the name of "MacDill Roofing and Services". Therefore, Respondent was acting in the capacity of a contractor under a name other than that on his registration. Nevertheless, there were no factual allegations in the Administrative Complaint that would put the Respondent on notice that this was

       the basis for the charge. Further, Petitioner did not assert at the hearing, or its proposed order, that it was seeking disciplinary action against Respondent based on this discrepancy. In that no other basis would exist for finding a violation of Section 489.129(1)(g), Florida Statutes, Respondent should be found not guilty of violating that sub- section.

       
       

   21. Respondent has also been charged with aiding and abetting an unlicensed contractor, specifically Leroy Rison, to evade the provisions of Chapter 489. This charge was based on the theory that Leroy Rison was the contractor on the job, and that Respondent aided and abetted Rison by pulling the permit. However, the evidence established that Respondent was the contractor on the job and that he was the person who, for compensation, agreed to perform the re-roofing job. The fact that he completely neglected his responsibilities establishes a violation of Section 489.129(1)(m), Florida Statutes, but does not establish that Respondent was guilty of violating Section 489.129(1)(e), Florida Statutes.

   Rule 21E-17.00(1), Florida Administrative Code, provides as follows: Normal Penalty Ranges. The following guide-

   lines shall be used in disciplinary cases, absence aggravating or mitigating cir- cumstances and subject to the other provisions of this chapter.

   * * *

   1. 489.129(1)(m): Gross negligence, in- competence and/or misconduct, fraud or dis- ceit.

      * * *

      (b) Causing monetary or other harm to licensees customer . . . . first violation, $500-$1,500 fine; repeat violation, $1,000-$5,000 fine and suspension or revocation.

   2. 489-129(1)(d): Violation of state or local laws. First violation $250-$750 fine, repeat violation, $1,000-$3,000 fine.

Rule 21E-17.002, Florida Administrative Code, set forth the aggravating and mitigating circumstances which may be considered in determining the appropriate penalty. In this case there are several aggravating circumstances. Respondent caused damage to the customer by failing to comply with the terms of the contract and has failed to relieve this situation. There were job site violations of the building code and conditions exhibiting gross negligence, incompetence, misconduct by the licensee which have not been corrected.

Respondent has had numerous prior offenses. At the time he entered into the contract in this case, he was aware of the numerous charges pending against him, and shortly after entering into this contract admitted to all these prior violations. In view of the number of prior violations, the presence of several aggravating circumstances, and the absence of any mitigating circumstances, the appropriately penalty in this case is revocation of Respondent's license.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered revocation of Respondent's

license as a registered roofing contractor.

DONE and ORDERED this 25th day of October, 1988, in Tallahassee, Florida.

DIANE A. GRUBBS

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 25th day of October, 1988.

APPENDIX

The following constitutes rulings on the Petitioner's Proposed Findings of Fact.

1.-4. Accepted, generally except the date of February 26, 1987 appears to be the appropriate date, rather than February 7, 1987, in that the estimate from Larry Rison was obtained one day before the contract was entered into with Respondent.

1. Accepted, generally.

2. Accepted as true, but unnecessary and irrelevant, since Rison and Terrell did not enter into a contract for the job.

7.-14. Accepted.

15. Accepted as true; however, the last two sentences were considered unnecessary.

16.-19. Accepted, generally.

1. First sentence accepted, sentences two and three rejected as irrelevant to the issues in this case.

2. Rejected as redundant and for the reasons set forth under Proposed Finding of Fact No. 6.

3. First sentence rejected as not supported by the evidence, second sentence accepted, except as to Respondent's intent. Third and fourth sentences accepted in general.

COPIES FURNISHED:

Belinda H. Miller, Esquire Department of Professional

Regulation

130 North Monroe Street Tallahassee, Florida 32399-0750

Francis A. Park

6109 South MacDill Avenue Tampa, Florida 33611

Lawrence A. Gonzalez Secretary

Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32399-0750

Bruce D. Lamb, Esquire General Counsel

Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32399-0750

Fred Seely Executive Director

Construction Industry Licensing Board

Department of Professional Regulation

Post Office Box 2 Jacksonville, Florida 32201

Docket for Case No: 88-002492

Orders for Case No: 88-002492