STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

)

RECOMMENDED ORDER

Pursuant to Notice, this cause was heard by Linda M. Rigot, the assigned Hearing Officer of the Division of Administrative Hearings, on January 18, 1989, in Miami, Florida.

APPEARANCES

For Petitioner: Michael J. Cohen, Esquire

517 Southwest First Avenue Ft. Lauderdale, Florida 33301

For Respondent: Bruce S. Atkins, pro se

Post Office Box 273932 Boca Raton, Florida 33427

PRELIMINARY STATEMENT

Petitioner filed eight Administrative Complaints against Respondent alleging that Respondent had violated certain of the construction contracting laws, and Respondent timely requested formal hearings on the allegations contained within those Administrative Complaints. Accordingly, the issues for determination herein are whether Respondent is guilty of the allegations contained within those Administrative Complaints, and, if so, what disciplinary action should be taken, if any.

At the commencement of the final hearing, a joint motion to consolidate all eight cases was granted. Further, Petitioner's Motion to Amend the Administrative Complaints by reciting the numbers of the additional licenses held by Respondent was granted. Lastly, the parties stipulated that the factual allegations of the Administrative Complaints were not contested.

Petitioner presented no witnesses, but Petitioner's composite exhibit numbered 1 was admitted in evidence. The Respondent testified on his own behalf, and Respondent's exhibits numbered 1-3 were admitted in evidence.

FINDINGS OF FACT

1. At all times material hereto, Respondent has been licensed by Petitioner as a certified roofing contractor, holding license numbers CC CA23531 and CC C023531.

   
   

2. Respondent qualified Sealtite Roofing & Construction, Inc., from December 9, 1982 until June 30, 1985.

   
   

3. The owner of Sealtite Roofing was Burton W. Slee. At all times, Slee was the holder of a roof painting license from Palm Beach County, which permitted him to paint roofs, apply waterproofing sealant to roofs, pressure- clean roofs, replace broken tiles, and apply roof coatings.

   
   

4. When Respondent became the qualifier for Sealtite, he was not impressed by the concept of waterproofing roofs. He knew, however, that neither the Southern Building Code nor the later Standard Building Code adopted by Palm Beach County made any mention of waterproofing roofs or any requirements for permitting such work or for such work being performed by licensed personnel. He further knew that Slee held a Palm Beach County roof painting license.

   
   

5. So there would be no misunderstanding and so that Respondent, Slee, and members of the public dealing with them would be protected, an agreement was entered into between Slee on behalf of Sealtite and Respondent prior to the time that Respondent became the qualifier for Sealtite. Under the terms of the agreement, Respondent would be responsible for the company's traditional roofing activities which would be performed utilizing Respondent's roofing contractor's license, and Slee would be responsible for the company's waterproofing activities, utilizing Slee's county license. Each of the parties to that agreement promised not to utilize each other's licenses, and each agreed to be responsible for "pulling" permits for the work for which each was responsible.

   
   

6. Throughout the entire time that Respondent qualified Sealtite, Respondent complied with the terms of his agreement, obtaining permits for all traditional roofing activities, supervising or personally performing such activities, and responding to any required warranty work.

   
   

7. During the time that Respondent qualified Sealtite, the permitting requirements of the approximately 27 municipalities within Palm Beach County kept changing. Some of the cities never required permits for waterproofing work, some of them required a county painting permit only, and some of them required a roofing permit. Sometimes the cities that required permits dropped that requirement, and sometimes the ones that did not require permits began to require them.

   
   

8. During the time in question Sealtite, through Burton Slee, waterproofed hundreds of roofs. The warranty given to the property owners involved was on behalf of Sealtite, was signed by Slee, and bore Slee's Palm Beach County license number. Neither Respondent nor Respondent's license was mentioned in those warranties.

   
   

9. Respondent did not approve any of Sealtite's waterproofing jobs, was not aware of or involved in any of Sealtite's waterproofing jobs, and was never on site at any of those jobs. He received no money from Sealtite's waterproofing activities, but only received money from Sealtite for standard roofing jobs supervised or performed by him.

10. Respondent never knew until Slee told him at the end of 1987 or the beginning of 1988 that there were times when Slee pulled a permit for a waterproofing job using Respondent's name and license number.

    
    

11. In 1987 Petitioner filed an Administrative Complaint against the Respondent resulting from one of the waterproofing jobs performed by Sealtite in February of 1985. Petitioner and Respondent entered into a Stipulation of Facts in that case. That Stipulation recited the terms of the agreement between Respondent and Slee and further recited Respondent's belief that that agreement had legally relieved him of any responsibility for Slee's or Sealtite's waterproofing activities and Petitioner's belief that the agreement had no such legal effect. The Stipulation further provided as follows:

    
    

    7. Petitioner and Respondent agree that there exist numerous other complaints and cases essentially involving the same or similar facts as the instant case and, therefore, acknowledge that the Board's decision herein will impact on the other matters.

    
    

12. On October 7, 1987, Petitioner contacted Respondent regarding 29 complaints resulting from Sealtite's waterproofing activities. Only nine of those complaints arose from waterproofing activities performed by Sealtite during the time that Respondent qualified the company.

    
    

13. In January 1988 the eight Administrative Complaints involved in this action were issued by Petitioner against Respondent. All eight Administrative Complaints involve Sealtite's waterproofing activities performed in 1983 and 1984. The Stipulation discussed and quoted above was entered into in June 1988, five months after the eight Administrative Complaints involved herein were issued against Respondent. Accordingly, these eight complaints are among those contemplated by the parties when they entered into the above described Stipulation which was subsequently presented to the Construction Industry Licensing Board in conjunction with the single prior case filed against Respondent relating to Sealtite's waterproofing activities.

    
    

14. On August 11, 1988, that Stipulation was considered by the Construction Industry Licensing Board. The Final Order entered by the Board on September 29, 1988, approved the factual allegations and conclusions of law contained in the Administrative Complaint filed against Respondent in that case and ordered Respondent to pay a fine of $500 to the Board and to pay $500 as restitution to the property owner involved in that case. Respondent timely made those payments.

    
    

15. Respondent was also licensed by Petitioner as a general contractor, license number CG C032811, in 1985, probably after the period during which he qualified Sealtite, but clearly after the activities complained of in these eight consolidated cases, all of which allege waterproofing activities occurring in 1983 and 1984.

    
    

16. No evidence was offered to show that any requests for repairs pursuant to the waterproofing guarantee or warranty given by Sealtite were made during the period of time that Respondent was the qualifying agent for Sealtite.

    CONCLUSIONS OF LAW

    
    

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

    
    

18. Petitioner is barred from taking disciplinary action against Respondent in these eight consolidated cases by virtue of the fact that these cases were all pending against Respondent at the time that the June 1988 Stipulation was presented to the Board for final disposition of the prior case against Respondent. That Stipulation contemplated that other cases were pending, and the Board took action against Respondent pursuant to that Stipulation. Respondent cannot again be disciplined for those matters for which he has already been disciplined. Further, there is no legal authority for Petitioner disciplining Respondent's general contractor's license since that license was awarded to Respondent after the conduct complained of in all of these Administrative Complaints and, most probably, after the period of time during which Respondent was the qualifying agent for Sealtite Roofing.

    
    

19. Petitioner is also barred from disciplining Respondent in these proceedings since the evidence is uncontroverted that none of these actions arose from or involved any willful or intentional conduct on the part of the Respondent. None of these cases involves a situation where Respondent performed work improperly or knowingly violated any local ordinances or state statutes. Respondent was not personally involved in any of these eight cases. The only act committed by Respondent, which turned out to be an error, was his innocent reliance on the agreement he entered into with Burton Slee whereby they agreed that Respondent would be responsible for roofing activities requiring licensure and Slee would be responsible for waterproofing activities involving no licensure or county licensure, which Slee did possess. Respondent believed that he could qualify the company for those activities meeting the legal definition of construction contracting activities and that he could leave to someone else responsibility for non-construction contracting activities. He did not know that the Board would subsequently interpret his contract as having no legal effect.

    
    

20. Since Respondent's real mistake was entering into the contract with Slee and acting in reliance on it, he has already been disciplined for that contract and cannot be disciplined for every activity resulting from that contract, particularly where he had no contact at all with the property owners obtaining waterproofing services from Slee, he had no contact at all with the performance of those activities, he issued no warranties to any homeowner, and his name and license number did not appear on the guarantees given by Sealtite to its waterproofing customers. Rather, the work was contracted for by Slee and performed by Slee's employees, and the warranty given to the property owners carried Slee's name and his county license number. There is no evidence that any member of the public or any customer obtaining waterproofing services from Sealtite ever met Respondent, even knew of Respondent's existence, or relied upon Respondent or his state licensure.

    
    

21. In short, the Board's subsequent interpretation of Respondent's responsibilities under his contract with Slee could not have been predicted by Respondent at the time that he entered into the contract and acted in reliance thereon. No evidence was offered, and no authority was cited, to indicate what the Board's interpretation of the situation would be when it considered Respondent's arrangement with Slee at its August 11, 1988, meeting. There is no indication that the Board ever previously advised its licensees, either by rule

    or by order, that it would not honor contracts such as that Respondent made with Slee. It is clear from Slee's deposition testimony (Respondent's Exhibit numbered 2) and from Respondent's testimony at the final hearing in this cause that Respondent would never have entered into the agreement with Slee and acted in reliance thereon had he known in advance that the Board would not honor his contract.

    
    

22. Even if the Board were free to discipline Respondent repeatedly for the same act (contracting away his responsibility for waterproofing activities), Petitioner has failed to meet its burden of proof in each of these eight cases. All eight cases charge that Respondent failed to honor his guarantees, in violation of Sections 489.105(4), 489.119, and 489.129(1)(j) and (m), Florida Statutes. Section 489.105(4) simply contains the definition for the term "qualifying agent", and there is no evidence that Respondent was not the qualifying agent for Sealtite or that he failed to supervise "contracting activities" or "construction activities" for a job for which he obtained a building permit. Likewise, Section 489.119 simply sets forth the procedure for becoming a qualifying agent. There is no evidence that Respondent failed to follow the proper procedures; rather, the evidence is uncontroverted that Respondent was, for a period of time, the qualifying agent for Sealtite.

    
    

23. Section 489.129(1)(m) authorizes the Board to take disciplinary action against a licensee who is guilty of fraud or deceit or gross negligence or incompetency or misconduct in the practice of contracting. There is no evidence that Respondent acted in such a manner. Rather, the evidence is uncontroverted that Respondent acted in good faith. See, for example, Respondent's Exhibit numbered 3, the deposition of Harry W. Carroll, III, as indicative of the high regard in which he is held by local building officials, both as to his workmanship and his character. Further, Section 489.129(1)(j) prohibits a licensee from violating any provision of the construction contracting laws. Petitioner has failed to show that Respondent has violated any provision of those laws. Lastly, there is no evidence that Respondent failed to honor a guarantee during the time period he was obligated to do so, that is, during the time that he was the qualifying agent for Sealtite.

    
    

24. DOAH Case No. 88-5184 also alleges that Respondent failed to obtain inspections and failed to supervise, in violation of Section 489.129(1)(d), (j) and (m), Florida Statutes. Subsections (j) and (m) have been discussed above. Subsection (d) Prohibits the willful or deliberate disregard and violation of applicable building codes or laws of the state or counties or municipalities. There is no evidence that Respondent willfully or deliberately disregarded and violated any such laws or ordinances.

    
    

25. DOAH Case No. 88-5186 alleges that in addition to failing to honor guarantees, Respondent failed to obtain a permit and failed to supervise, in violation of the same Sections discussed above. Petitioner has failed to prove the additional violations for the reasons already discussed.

DOAH Case No. 88-5189 alleges that; in addition to failing to honor a guarantee, Respondent failed to supervise, in violation of Section 489.129(1)(m), Florida Statutes. Again, Petitioner has failed to present any evidence of fraud, deceit, gross negligence, incompetency, or misconduct in the practice of contracting, as prohibited by Subsection (m).

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered dismissing with Prejudice the

Administrative Complaints filed against Respondent in these consolidated cases.

RECOMMENDED this 15th day of March, 1989, in Tallahassee, Leon County, Florida.

LINDA M. RIGOT

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 15th day of March, 1989.

COPIES FURNISHED:

Michael J. Cohen, Esquire

517 Southwest First Avenue Fort Lauderdale, Florida 33301

Bruce S. Atkins

Post Office Box 273932 Boca Raton, Florida 33427

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

Post Office Box 2 Jacksonville, Florida 32202

Docket for Case No: 88-005182

Orders for Case No: 88-005182