STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

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

)

Petitioner, )

)

vs. ) CASE NO. 88-5216

)

ROBERT BRADLEY, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was conducted in this case on April 24, 1989, at Miami, Florida, before Michael M. Parrish, a duly designed Hearing Officer of the Division of Administrative Hearings.

APPEARANCES

For Petitioner: Carolyn Kellman, Esquire

William S. Berk, Esquire Adorno, Zeder, Allen, Yoss

Bloomberg & Goodkind, P.A.

3225 Aviation Avenue, Suite 400

Miami, Florida 33133

For Respondent: Robert Bradley, pro se

5180 N.W. 30th Avenue Miami, Florida 33142

STATEMENT OF THE ISSUES

The issue in this case is whether the Respondent violated Sections 489.129(1)(j)(m), 489.119, and 489.105(4), Florida Statutes, by failing to reasonably honor his guarantee and, if so, what administrative penalty, if any, should be imposed.

PRELIMINARY STATEMENT

At the formal hearing the Petitioner presented the testimony of two witnesses and offered numerous exhibits. The Respondent testified on his own behalf and also presented the testimony of one other witness.

At the conclusion of the hearing, the parties requested, and were granted,

45 days from the date of the transcript within which to file their proposed recommended orders. The transcript was filed with the Hearing Officer on May 11, 1989. Thereafter, the Petitioner filed a timely proposed recommended order. The Respondent has not filed any post-hearing documents. The findings of fact

proposed by the Petitioner are all addressed in the Appendix to this Recommended Order.

FINDINGS OF FACT

1. At all times relevant to the issues in this case, the Respondent was licensed as a registered roofing contractor by the Construction Industry Licensing Board and held license number RC-0043386.

   
   

2. In March of 1983, the Respondent entered into a contract in his capacity as a registered roofing contractor to reroof a house owned by Willard

   S. Seidel located at 150 N.E. 102nd Street, North Miami Beach, Florida. The work under the contract was to be done by Bradley Roofing Company, a company for which the Respondent was the qualifying agent. The contract contemplated the reroofing of the entire house, including the main roof, the Florida room roof, and the garage roof. The contract price was $4,240.00, which was paid in full. The contract included a ten-year guarantee provision reading as follows: "COMPANY'S GUARANTEE: The Company guarantees its material and workmanship for ten (10) years. It will replace faulty material or faulty workmanship within the period of the guarantee free of charge."

   
   

3. The work on the Seidel residence was performed during the latter part of March and the first part of April of 1983. Within a month or so, the garage roof began to leak. The Respondent was promptly advised of the leak. Over a period of several months, the Respondent or employees of his company made several unsuccessful efforts to fix the leaks in the garage roof. Finally, in October of 1983, the Respondent was successful in stopping the leaks in the garage roof.

   
   

4. In September of 1987, the roof over the main portion of the house began to leak in the living room area, and the roof over the Florida room began to leak. These leaks were promptly reported to the Respondent. From September of 1987 through December of 1988, the Respondent or employees of his company made several unsuccessful efforts to fix the leaks in the living room and the Florida room. These efforts included replacing the entire roof on the Florida room.

   
   

5. The construction of the roof on the Florida room was such that after the Respondent had finished all of his efforts at repairing that portion of the roof, the roof would still hold approximately three-fourths of an inch of water after a rain. The type of roof over the Florida room was not one intended to hold water. Good roofing practice required that the slope of that portion of the roof be modified or that a different type of roof covering material be used.

   
   

6. All of the Respondent's repair efforts from September of 1987 through December of 1988 were unsuccessful. After all of those efforts, the roof over the main portion of the house still leaked in the vicinity of the living room and the roof over the Florida room still leaked. A competent roofing contractor would have been able to repair the roof so that it did not leak. The Respondent's inability to repair the leaks after numerous efforts and keep the roof free from leaks during the guarantee period constitutes incompetence.

   
   

7. In April of 1989, the owner of the house contracted with another roof contractor to repair the leaks in the roof. The second contractor was able to successfully repair the leaks in the roof on the main part of the house as well as the leaks in the roof over the Florida room. The cost of these successful repairs totaled $1,680.00

8. The Respondent has been previously disciplined by the Construction Industry Licensing Board for violations of Section 489.129(1), Florida Statutes.

   
   

   CONCLUSIONS OF LAW

   
   

9. The Division of Administrative Hearings has jurisdiction over the parties to and the subject matter of this proceeding. Sec. 120.57(1), Fla. Stat.

   
   

10. Section 489.129(1), Florida Statutes, authorizes the Construction Industry Licensing Board to take various types of specified disciplinary action against contractors who are found guilty of various acts specified in that statutory provision. The acts for which disciplinary action may be taken include the following:

    
    

    (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 any gross negligence, incompetency, or misconduct in the practice of contracting.

    
    

11. As noted in the findings of fact, the Respondent's inability to successfully repair the leaks in the roof during the warranty period constitutes incompetence. Inasmuch as such incompetence occurred in the practice of contracting, the Respondent is guilty of a violation of Section 489.129(1)(m), Florida Statutes.

    
    

12. The evidence in this case is insufficient to show that the Respondent has failed to comply with provisions of Sections 489.105(4) or 489.119, Florida Statutes. It is also insufficient to show that the Respondent has failed to comply with any other provisions of Chapter 489, Florida Statutes. Therefore, the evidence in this case is insufficient to establish that the Respondent is guilty of a violation of Section 489.129(1)(j), Florida Statutes.

    
    

13. In determining the appropriate penalty in a case of this nature, attention must be directed to the Board's disciplinary guidelines which appear at Chapter 21E-17, Florida Administrative Code. The most applicable rule guideline appears to be Rule 21E-17.001(19)(b), Florida Administrative Code, which sets forth a penalty range of "$1,000 to $5,000 fine and suspension or revocation" under circumstances where a repeat offender demonstrates incompetence that results in monetary harm to a customer. Rule 21E-17.002, Florida Administrative Code, provides a list of aggravating and mitigating circumstances to be considered in determining the appropriate penalty. A review of those circumstances in light of the facts in this case indicate that there is no compelling reason to deviate from the usual penalty set forth in Rule 21E- 17.001(19)(b), Florida Administrative Code.

    
    

14. The Petitioner argues in its proposed recommended order that the appropriate penalty in this case should include a requirement that the Respondent make restitution in the amount of $1,680.00 to cover the additional cost of repairs the owner paid to another contractor. The Board's disciplinary guidelines discussed above take into account the matter of whether the contractor's violation resulted in financial harm to the customer, but Section 489.129, Florida Statutes, does not contain any provision authorizing the Board to order a licensee to pay restitution to a customer. Absent statutory authority, such a remedy is beyond the Board's authority.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Construction Industry Licensing Board issue a final

order in this case to the following effect:

1. Dismissing the charge that the Respondent has violated Section 489.129(1)(j), Florida Statutes.

   
   

2. Concluding that the Respondent is guilty of having violated Section 489.129(1)(m), Florida Statutes, by reason of incompetency in the practice of contracting.

   
   

3. Imposing an administrative penalty consisting of a fine in the amount of $2,000.00, and a suspension of the Respondent's license for a period of one year.

DONE AND ENTERED in Tallahassee, Leon County, Florida, this 31st day of July 1989.

MICHAEL M. PARRISH

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 31st day of July, 1989.

APPENDIX TO RECOMMENDED ORDER, CASE NO. 88-5216

The following are my specific rulings on all proposed findings of fact submitted by all parties.

Findings proposed by Petitioner:

Paragraphs 1 through 14: Accepted in substance with some details omitted as unnecessary.

Paragraph 15: Rejected as irrelevant because the Respondent is not charged with any building code violations.

Paragraphs 15 through 19: Accepted in substance with some details omitted as unnecessary.

Paragraphs 20 and 21: Rejected as subordinate and unnecessary details. Paragraph 22: Accepted in substance.

Paragraph 23: First sentence rejected as irrelevant to issues in this case. Remainder of this paragraph accepted in substance.

Paragraphs 24 through 26: Accepted in substance.

Paragraph 27: Rejected as irrelevant because Respondent was not charged with failure to remove rotten wood.

Paragraph 28: Rejected because not supported by clear and convincing evidence.

Paragraph 29: Accepted.

Findings proposed by Respondent: (None)

COPIES FURNISHED:

Carolyn Kellman, Esquire William S. Berk, Esquire Adorno, Zeder, Allen, Yoss, Bloomberg & Goodkind, P.A. 3225 Aviation Avenue

Suite 400

Miami, Florida 33133

Robert Bradley

5810 N.W. 30th Avenue Miami, Florida 33142

Fred Seely, Executive Director Construction Licensing Board Post Office Box 2 Jacksonville, Florida 32201

Kenneth E. Easley, Esquire Department of Professional Regulation

1940 North Monroe Street Suite 60

Tallahassee, Florida 32399-0792

Docket for Case No: 88-005216

Orders for Case No: 88-005216