STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

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

)

Petitioner, )

)

vs. ) CASE NO. 89-0742

)

JOSEPH LAWTON, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was conducted in this case on April 6, 1989, at Fort Lauderdale, Florida, before Claude B. Arrington, a duly designated Hearing Officer of the Division of Administrative Hearings. Appearances of the parties at the hearing were as follows:

For Petitioner: Elizabeth R. Alsobrook, Esquire

Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32399-0750

For Respondent: No Appearance

PRELIMINARY STATEMENT

This is a license discipline case in which the Petitioner seeks to take disciplinary action against the Respondent on the basis of allegations that Respondent committed several violations of the licensing laws. It is alleged that Respondent did the following in connection with a particular job:

1. Respondent proceeded without the permit required by local law having been issued in violation of Sections 489.129(1)(d), (m), (j) 489.119; and 489.105(4), Florida Statutes.

2. Respondent proceeded without the inspections required by local law having beer obtained in violation of Sections 489.129(1)(d), (m), (j); 489.119; and 489.105(4), Florida Statutes.

3. Respondent failed to properly supervise the jobsite and as a result failed to provide a reasonably water-tight roof in violation of Sections 489.128(1)(m), (j); 489.119; and 489.105(4), Florida Statutes.

At the final hearing, the Petitioner appeared through counsel and offered evidence in support of the allegations in the Amended Administrative Complaint. The evidence consisted of the testimony of three witnesses, one of whom was accepted as an expert in general contracting practices in the State of Florida, and of four documentary exhibits, all of which were accepted into evidence.

There was no appearance on behalf of Respondent. Following the hearing, the Petitioner filed a proposed recommended order containing proposed findings of fact and conclusions of law. The Respondent has not filed post-hearing documents. All findings of fact proposed by the Petitioner are addressed in the appendix attached to this recommended order.

FINDINGS OF FACT

1. At all times material to this case, the Respondent, Joseph Lawton, was licensed as a registered roofing contractor in the State of Florida, holding license number RC 0052537.

   
   

2. At all times material to this case, the Respondent was the qualifying agent for All Florida Systems located in Fort Lauderdale, Florida.

   
   

3. The Notice of Hearing was mailed to Respondent at his last known address.

   
   

4. Ronald Klein lives at 8245 Northwest Ninety-fifth Avenue, Tamarac, Florida. A portion of the roof on Mr. Klein's residence is flat and a portion is pitched.

   
   

5. In the middle of August, 1987, Respondent met with Mr. Klein at the Klein residence to discuss Mr. Klein's roofing needs. Respondent told Mr. Klein during their meeting that the flat portion of his roof needed to be re-roofed and quoted a price for the work that Mr. Klein found acceptable. This was the only meeting between Mr. Klein and Respondent and was the only time Mr. Klein has seen Respondent.

   
   

6. There was no written contract between Respondent and Mr. Klein because Respondent did not mail to Mr. Klein a written contract as he had agreed to do.

   
   

7. On Sunday, August 30, 1987, Earl Batten, one of All Florida System's workers, re-roofed the flat portion of Mr. Klein's roof. Mr. Klein paid Mr. Batten $1,575.00 for the work pursuant to the verbal agreement between Respondent and Mr. Klein. Mr. Klein made his check payable to Earl Batten because Respondent had told Mr. Klein to pay his worker when the work was completed. Mr. Klein noted on the check that the check was in payment of work done by All Florida Systems.

   
   

8. Respondent did not obtain the permits required by local law for the work done on the Klein residence. Because there was no agreement to the contrary, it would have been Respondent's responsibility to obtain the permits required by local law.

   
   

9. Respondent did not obtain the inspections required by local law for the work done on the Klein residence. Because there was no agreement to the contrary, it would have been Respondent's responsibility to obtain the inspections required by local law.

   
   

10. Mr. Klein's roof began leaking after Mr. Batten completed his work on August 30, 1987. In response to three weeks of repeated telephone calls from

    Mr. Klein, Respondent sent one of his supervisors to inspect Mr. Klein's roof. The supervisor told Mr. Klein that the work had to be redone because the work on the flat roof had not been properly tied into the remainder of the roofing system. Mr. Klein was further advised by the supervisor that Respondent would be in contact with Mr. Klein.

    
    

11. After Respondent failed to respond further, Mr. Klein hired a second roofing contractor who corrected the deficient work in October of 1987 at a price of $1,377.00.

    
    

12. Between the time Mr. Batten worked on his roof and the time the second contractor corrected the deficiencies, Mr. Klein sustained damages to his residence which required expenditures of over $1,500.00 to repair.

    
    

13. Respondent was previously disciplined by the Construction Industry Licensing Board in Case No. 90265.

    
    

    CONCLUSIONS OF LAW

    
    

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

    
    

15. Section 489.129(1), Florida Statutes, authorizes the Construction Industry Licensing Board to take disciplinary action against a contractor when the contractor is found guilty of various specified acts, including the following:

    
    

    (d) Willful or deliberate disregard and violation of the applicable building codes or laws of the state or of any municipalities or counties thereof.

    * * *

    (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.

    
    

16. Petitioner has the burden of proving by clear and convincing evidence that the Respondent committed the acts alleged in the administrative complaint. See Ferris v. Turlington, 510 So.2d 292 (Fla. 1989).

    
    

17. Petitioner has proved by clear and convincing evidence that Respondent failed to obtain the permits and the inspections required by local law in violation of Section 489.129(1)(d), Florida Statutes.

    
    

18. Petitioner has proved by clear and convincing evidence that Respondent failed by reason of improper supervision to provide a reasonably water-tight roof which constitutes misconduct and incompetency in the practice of contracting in violation of Section 489.129(1)(m), Florida Statutes.

    
    

19. Rule 21E-17.001, Florida Administrative Code, sets forth the normal penalty guidelines and, pertinent to this case, provides:

    (5) 489.129(1)(d): Permit violations.

    * * *

    (b) Job furnished without a permit having been pulled, or no permit until caught after job, or late permit during job resulting in missed inspection or inspections. First violation, $250 to $750 fine; repeat violation, $1,000 to $2,000 fine.

    * * *

    (8) 489.129(1)(d): Failure to call for inspections. First violation, letter of guidance; repeat violation, $250 to $750 fine.

    * * *

    (19) 489.129(1)(m): Gross negligence, incompetence, and/or misconduct, fraud or deceit.

    * * *

    (b) Causing monetary or other harm to licensee's customer, or physical harm to any person. First violation, $500 to $1500 fine; repeat violation, $1,000 to $5000 fine and suspension or revocation.

    
    

20. Rule 21E-17.003, Florida Administrative Code, provides in part:

    
    

    1. As used in this rule, a repeat violation is any violation on which disciplinary action is being taken where the same licensee had previously had disciplinary action taken against him or received a letter of guidance

       in a prior case; and said definition is to apply (i) regardless of the chronological relationship of the acts underlying the various disciplinary action, and (ii) regardless of whether the violations in the present and prior disciplinary actions are of the same or different subsections of the disciplinary statutes.

       
       

21. Rule 21E-17.007, Florida Administrative Code, provides:

    
    

    Probation may also be assessed in any case where, in the board's opinion, it is advisable for the public welfare, in order to assure that the licensee operates properly and within the law in the future, to require the licensee to report to the Board periodically, or to otherwise serve a probationary period.

    
    

22. Respondent's violation in this matter are, within the meaning of the applicable guidelines, repeat violations which caused monetary damage to his customer.

RECOMMENDATION

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

having violated Sections 489.129(1)(d) and (m), Florida Statutes, and which imposes an administrative fine against Respondent in the amount of $5,000.00 and places Respondent on probation for a period of one year.

DONE and ENTERED this 19th day of May, 1989, in Tallahassee, Florida.

CLAUDE B. ARRINGTON

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 19th day of May, 1989.

APPENDIX

The findings of fact contained in paragraphs 1, 2, 3, 4, 5, 6, 7, 8, 9, 10,

11, 12, 13, 14, 15, 18, 19, 20, 22 are adopted in substance; insofar as material.

The findings of fact contained in paragraphs 16, 17, 21 of Petitioner's proposed findings of fact are subordinate.

COPIES FURNISHED:

Elizabeth R. Alsobrook, Esquire Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32399-0750

Joseph Lawton

1000 South Ocean Boulevard Apartment 6C

Pompano Beach, Florida 33062

Kenneth E. Easley, General Counsel Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32399-0750

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

Jacksonville, Florida 32201

Docket for Case No: 89-000742

Orders for Case No: 89-000742