STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF PROFESSIONAL ) REGULATION, )

)

Petitioner, )

)

vs. ) CASE NO. 89-0179

)

RICHARD K. WILLIS, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the above-styled matter was heard before the Division of Administrative Hearings by its duly designated Hearing Officer, Don W. Davis, on March 9, 1989 in Winter Haven, Florida. The following appearances were entered:

APPEARANCES

For Petitioner: Elizabeth R. Alsobrook, Esquire

Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32399-0750

For Respondent: No Appearance

BACKGROUND

This matter began when Petitioner charged Respondent, a registered roofing contractor, by administrative complaint with various violations of Chapter 489, Florida Statutes, in connection with a roof contracting job undertaken by Petitioner. The gravamen of Petitioner's charges were that Respondent failed to honor a guarantee given to a customer as a result of incompetence or gross negligence in the practice of roof contracting. The administrative complaint also alleged that Respondent had been previously disciplined by Petitioner.

At hearing, Petitioner presented testimony of three witnesses and seven evidentiary exhibits. Respondent did not appear and no testimony or other evidence was presented on his behalf. Proposed findings of fact submitted by Petitioner are addressed in the appendix to this recommended order. Respondent did not timely submit proposed findings and none had been received at the time of the preparation of this recommended order.

Based upon all of the evidence, including the demeanor and candor of the witnesses who testified, the following findings of fact are determined:

FINDINGS OF FACT

1. Respondent is Richard K. Willis, a registered roofing contractor licensed by Petitioner and holding license RC-0041275 at all times pertinent to these proceedings. His address of record is Winter Haven, Florida.

   
   

2. Respondent and Jeffrey Smith entered into a contract in July of 1986. Under terms of the agreement, Smith, a chiropractor, agreed to pay Respondent the sum of $2,200 to re-roof the facility which served as Smith's home and office. The agreement signed by the parties contains a written guarantee that materials to be used in the project would meet specifications set forth in the document. Further, the guarantee stated that work would be completed in "a workmanlike manner according to standard practices."

   
   

3. The project was completed by Respondent and Smith paid him the agreed upon amount of $2,200 in July of 1986. About three weeks after completion of the job, Smith noticed a leak in the roof and telephoned Respondent. Two or three weeks later and after several more telephone calls from Smith, Respondent returned to the job site. By that time, interior damage to the ceiling tiles had been sustained. The tiles became discolored by leaking water and started to collapse. Respondent proceeded to patch the leaking roof with tar.

   
   

4. In June of 1987, Smith's facility developed a second leak in the roof over the back portion of the house. Respondent returned, reviewed the problem and agreed to tear off the leaking section of the roof and replace it. As a result of this action by Respondent, the leakage increased. More extensive damage was caused by water leaking down door frames and across the ceiling of the house. Respondent had also promised that he would put a "tarp" over Smith's roof to temporarily stop the leakage until repairs could be effected, but such covering never materialized.

   
   

5. After Respondent's second attempt to fix the roof, Smith advised him that the leakage was continuing. Smith then tried several times without success to communicate with Respondent and get him to return to the job site. Finally, after Smith contacted local government building officials, Respondent returned and stopped the leakage. The repairs came too late to prevent ceiling damage which cost Smith $400 to repair. When a third leak developed in the roof in February of 1989, Smith hired another contractor to fix the leak for the sum of

   $60.

   
   

6. Petitioner provided expert testimony which establishes that Respondent demonstrated incompetence in the practice of roof contracting. Further, the work performed by Respondent did not meet the terms of the guarantee he gave to Smith. These conclusions are based on the fact that workmanship provided by Respondent failed to meet standard practices of the industry. Such failure is demonstrated by the irregularity with which surface material was applied to the roof; the lack of sufficient gravel; the lack of uniform distribution of that gravel; missing metal flashing and lifted or separated flashing at the vertical surfaces of the roof; and improper installation of flashing around the plumbing vent exiting through the roof.

   
   

7. Respondent's previous disciplinary history with Petitioner consists of an administrative fine of $250 on June 19, 1985, and letter of guidance issued on August 14, 1986.

   CONCLUSIONS OF LAW

   
   

8. The Division of Administrative Hearings has jurisdiction over the subject matter of this proceeding, and the parties thereto, pursuant to Subsection 120.57(1), Florida Statutes.

   
   

9. Petitioner bears the burden to establish to by clear and convincing evidence that Respondent is guilty of the offenses charged in the administrative complaint. Ferris v. Turlington, 510 So.2d 292 (Fla. 1987).

   
   

10. The administrative complaint alleges that Respondent failed to honor a guarantee and that he performed incompetently or in a grossly negligence fashion as a roof contractor.

    
    

11. The evidence clearly and convincingly establishes that Respondent is guilty of incompetency in the practice of roof contracting in violation of Section 489.129(1)(m), Florida Statutes.

    
    

12. Likewise, the evidence clearly and convincingly establishes that Respondent committed misconduct through his failure to honor the guarantee given to Smith. This is also a violation of Section 489.129(1)(m), Florida Statutes.

    
    

13. Respondent is a repeat violator as a result of his record of previous discipline. Rule 21E-17.003, Florida Administrative Code. Due to the status of Respondent as a repeat violator and the severity of the incompetency demonstrated by the facts of this case, Petitioner urges the revocation of Respondent's license. Such revocation is warranted.

RECOMMENDATION

Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that a final order be entered finding Respondent in violation

of Subsection 489.129(1)(m), Florida Statutes, (1988) and revoking his license

as a roofing contractor in accordance with provisions of Rule 21E-17.001, Florida Administrative Code.

DONE AND ENTERED this 6th day of April, 1989, in Tallahassee, Leon County, Florida.

DON W. DAVIS

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 6th day of April, 1989.

APPENDIX

The following constitutes my specific rulings, in accordance with Section 120.59, Florida Statutes, on findings of fact submitted by Petitioner.

Petitioner's Proposed Findings

1.-17. Addressed in substance.

COPIES FURNISHED:

Elizabeth R. Alsobrook, Esquire Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32399-0750

Richard K. Willis 2106 Winter Lake Road

Winter Haven, Florida 33880

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

Jacksonville, Florida 32201

=================================================================

AGENCY FINAL ORDER

=================================================================

STATE OF FLORIDA DEPARTMENT OF PROFESSIONAL REGULATION CONSTRUCTION INDUSTRY LICENSING BOARD

DEPARTMENT OF PROFESSIONAL REGULATION,

Petitioner,

vs CASE NO.: 91966

DOAH CASE NO.: 89-0179

RICHARD K. WILLIS, LICENSE NO.: RC 0041275,

Respondent.

/

FINAL ORDER

THIS MATTER came before the Construction Industry Licensing Board pursuant to Section 120.57(1)(b)(9), Florida Statutes, on October 12, 1989, in Tampa, Florida, for consideration of the Recommended Order (a copy of which is attached hereto and incorporated herein by reference). The Petitioner was represented by Ray Shope. The Respondent was neither present nor represented by counsel at the Board meeting.

Upon consideration of the hearing officer's Recommended Order, and the arguments of the parties and after a review of the complete record in this matter, and there being no exceptions filed, the Board makes the following:

FINDINGS OF FACT

1. The hearing officer's findings of fact are hereby approved and adopted in toto.

   
   

2. There is competent, substantial evidence to support the hearing officer's findings of fact.

CONCLUSIONS OF LAW

1. The Board has jurisdiction of this matter pursuant to the provisions of Section 120.57(1), and Chapter 489, Florida Statutes.

   
   

2. The hearing officer's conclusions of law are hereby approved and adopted in toto.

   
   

3. Respondent is guilty of violating Section 489.129(1)(m), Florida Statutes.

   
   

4. The penalty recommended by the Hearing Officer is hereby rejected for those reasons stated on the record at the above referenced board meeting.

   
   

5. There is competent, substantial evidence to support the Board's findings and conclusions.

WHEREFORE, IT IS HEREBY ORDERED AND ADJUDGED: Respondent, Richard K.

Willis, shall pay a fine of one thousand five hundred dollars ($1,500.00) to the Construction Industry Licensing Board within thirty (30) days.

Respondent shall be on probation from the date of the Final Action herein, through January 1, 1991. Respondent shall make probation appearances before the Board in the months of June and November, 1991. At said appearances Respondent shall stand for questions from the Board as to his firm's operations and finances, and shall supply the Board with such financial reports and other papers as the Board may require.

To assure payment of the fine, it is further ordered that all of Respondent's licensure to practice contracting shall be suspended with the imposition of the suspension being stayed for thirty (30) days. If the ordered fine is paid within that thirty (30) day period, the suspension imposed shall not take effect. Upon payment of the fine after the thirty (30) days, the

suspension imposed shall be lifted. If the licensee does not pay the fine within said period, then immediately upon expiration of the stay, he shall surrender his licensure to the investigator of the Department of Professional Regulation or shall mail it to the Board offices.

Pursuant to Section 120.59, Florida Statutes, the Parties are hereby notified that they may appeal this Final Order by filing one copy of a Notice of Appeal with the Clerk of the Department of Professional Regulation, Northwood Centre, 1940 N. Monroe Street, Tallahassee, Florida 32301, and by filing the filing fee and one copy of the Notice of Appeal with the District Court of Appeal within thirty (30) days of the effective date of this Order.

This Order shall become effective upon filing with the clerk of the Department of Professional Regulation.

DONE AND ORDERED this 19th day of February, 1990.

MIKE BLANKENSHIP, CHAIRMAN

Construction Industry Licensing Board

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a true and correct copy of the foregoing Final Order has been provided by U.S. Mail to

Richard Willis Stephen F. Baker, Esquire 2106 Winter Lake Rd. 565 Avenue K, S.E.

Winter Haven, Fl 33880 Winter Haven, Fl 33880

and by hand delivery/United States Mail to the Board Clerk, Department of Professional Regulation and its Counsel, Northwood Centre, 1940 North Monroe Street, Tallahassee, Florida 32399-0792, on or before 5:00 p.m., this 19th day of February 1990.

F I L E D

Department of Professional Regulation Florida Construction Industry Licensing Board

Board Clerk

Clerk Date: February 19, 1990

Docket for Case No: 89-000179

Orders for Case No: 89-000179