STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

STATE OF FLORIDA, DEPARTMENT ) OF PROFESSIONAL REGULATION, ) CONSTRUCTION INDUSTRY )

LICENSING BOARD, )

)

Petitioner, )

)

vs. ) DOAH CASE NO. 89-2164

) DPR CASE NO. 0097394

STUART STRATTON, )

)

Respondent. )

)

RECOMMENDED ORDER

Notice was provided and on July 26, 1989 in Jacksonville, Florida, a formal hearing was held in this case. The authority for the conduct of the hearing is set forth in Section 120.57(1), Florida Statutes. Charles C. Adams was the hearing officer.

APPEARANCES

For Petitioner: George W. Harrell, Esquire

Department of Professional Regulation 1940 North Monroe Street, Suite 60

Tallahassee, Florida 32399-0750

For Respondent: Stuart Stratton

3365 Silver Palm Drive Jacksonville Beach, Florida 32250

STATEMENT OF THE ISSUES

The issues in this case concern an administrative complaint brought by Petitioner against Respondent alleging an inadequate performance in work done for a customer, Louise A. Bright. In particular, Respondent is said to have proceeded to do work for Ms. Bright without having obtained a timely permit to commence the work, in violation of local law, by his deliberate action or through improper supervision. As a consequence, Respondent is said to have violated various provisions of Chapter 489, Florida Statutes. In addition, Respondent is accused of having done business under a name other than the name reflected on his license, as issued by Petitioner, the name which he had done business under having not been qualified with Petitioner. Again, this constitutes alleged violations of Chapter 489, Florida Statutes. Finally, Respondent is accused of gross negligence, incompetence, misconduct and/or deceit in connection with work based upon his personal activities or his failure to properly supervise, leading to a performance which did not provide a reasonably watertight roof, which roof leaked; the improper installation of window seals, resulting in water draining towards the interior; and misconduct in the competitive-bid process associated with the Bright job. The

administrative complaint points out that the Respondent had previously been disciplined by the Construction Industry Licensing Board in an unrelated case.

PRELIMINARY STATEMENT

This Recommended Order is being entered following the receipt and review of the transcript of proceedings as filed with the Division of Administrative Hearings on September 18, 1989. The exhibits have been examined. Petitioner's Recommended Order was considered and its suggested fact finding is spoken to in an Appendix to this Recommended Order. Respondent has not filed a proposed Recommended Order.

Petitioner had made a motion to deem admitted certain requests for admissions that had been propounded to Respondent or alternatively, to have Respondent show cause why they should not be deemed admitted. This motion was considered at the commencement of the hearing, at which time Respondent filed his answers to the requests for admissions, thereby resolving the matter of the motion.

At the commencement of the hearing, Petitioner abandoned those allegations set forth in paragraph 7 to the administrative complaint. This constitutes a dismissal of those accusations.

FINDINGS OF FACT

1. The State of Florida, Department of Professional Regulation, has the responsibility of prosecuting administrative complaints brought by the Construction Industry Licensing Board. The authority for the activities of these entities is announced in Chapters 120, 455 and 49, Florida Statutes, and applicable rules promulgated under the authority of those statutes.

   
   

2. At times pertinent to this inquiry, Respondent has been licensed by the Construction Industry Licensing Board as a certified residential contractor.

   His license number is CR C0277268. The license he holds is as an individual. Respondent has not served as a qualifying agent for a company known as Stratton Construction Company.

   
   

3. Ms. Louise A. Bright of 5143 Astral Avenue, Jacksonville, Florida, was interested in having remodeling and re-roofing work done at her home at that address under the auspices of the HUD Rehabilitation Program. In this connection, she sought bids from two contractors other than Respondent. The intention of those two contractors in submission of sealed bids to Ms. Bright was to secure their contents from being disclosed to competitors, such as Respondent.

   
   

4. Respondent contacted Ms. Bright about bidding on this project. This solicitation of Ms. Bright was not inappropriate. It was inappropriate for Respondent, once he entered into discussions with Ms. Bright at her home, to insist on Ms. Bright revealing the contents of his competitors' bids. Ms. Bright told Respondent that she did not think this was an appropriate arrangement. Respondent replied that it was done all the time. Respondent kept asking Ms. Bright about different items in one competitor's bid quotation. Eventually, Ms. Bright tired of the discussion and laid one of the two proposals on her table and Respondent examined it and began to describe how he thought he could undercut the price of his competitor. As Robert H. Adams, a certified residential contractor licensed by the State of Florida, testified in the hearing, it was an act of misconduct for Respondent to ask for the contents of

   the sealed bid of the competitor before submitting his own bid. In fact, Respondent did not offer his terms until he had had the opportunity to examine the position of a competitor and the terms of that competitor's bid.

   
   

5. On May 28, 1987, Ms. Bright and Respondent entered into a contract to have the remodeling work done at her home and the roof work. The roof work was constituted of shingles in one portion and the installation of materials which approximate a built-up roof in another portion. The price of the contract was

   $15,140.00.

   
   

6. Respondent entered into the contract with Ms. Bright under the name of Stratton Construction Company.

   
   

7. Respondent commenced the work sometime around June 8 or 10, 1987.

   
   

8. Respondent, under the name of Stratton Construction Company, obtained a building permit from the City of Jacksonville, Florida, for purposes of the re- roofing work only. That permit was obtained on June 11, 1987, after the overall work began at the residence. Although it was incumbent upon Respondent to obtain a permit from the City of Jacksonville to do the remodeling portion of the work, as contemplated by requirements of the City of Jacksonville's Building Code, the remodeling permit was never obtained before commencement of the work, nor at any other time, as the record stands.

   
   

9. As the work proceeded, several change orders were executed on May 28, 1987, June 2, 1987 and June 3, 1987. A fourth change order was not allowed. The reason for its rejection was based upon the perception of an official with HUD, Hank Pocopanni, who felt that the cost of the fourth change order was too expensive. The ultimate contract price was $15,130.00.

   
   

10. Based upon the progress of the work, 30% and 60% payments on the contract amount were rendered based upon a 40% and 80% completion. At the time of the second draw, the roof had been installed.

    
    

11. The roof in question, although needing repair, had not been leaking prior to the work that was done on it. The roofing work was done at the residence by Bailey's Roofing of 2922 West 6th Street, Jacksonville, Florida 32205.

    
    

12. The inspections on the quality of the roof work which were done by the HUD and the City of Jacksonville were not detailed inspections. The inspections by the City of Jacksonville were merely to see that the roof had been installed. The more complete inspection of the roof which would have been done by HUD was to be performed at the time of the final inspection. That final inspection never occurred because Ms. Bright and Respondent terminated their relationship as owner and contractor under the contract. Respondent has also placed a claim of lien against Ms. Bright for the balance of the contract money not disbursed.

    
    

13. The roof has leaked in a bedroom in the home, as well as in the breakfast room and around one of the chimneys, running down rafters from the chimney. In addition, as Mr. Adams pointed out in his expert opinion testimony, which is accepted, the prefab chimney structure, which had heavy asphalt cement placed upon the top of the cap, was an inappropriate installation because chimneys produce heat and one should not put asphalt cement next to them. Respondent has sufficient expertise to understand the inappropriateness of this form of installation. It is not necessary for him to be a roofing contractor to understand that this was an incorrect choice. Nor does he need to be a roofing

    contractor to understand, as Mr. Adams, in his expert opinion, identified that the shingles on the roof were improperly installed and the fact that the shingles had been improperly cut because they did not cover the eaves drip completely. A certified residential contractor, such as Respondent, has the necessary expertise to understand the re-roofing by use of shingles. Respondent is also capable of understanding that the installation of flashing material around the chimney at the home was unsightly and improper, as identified by Mr. Adams, whose expertise is accepted and opinion is credited.

    
    

14. Mr. Adams also identified the fact of a 48-inch overhang at the rear of the house without vertical support columns or beams and some concern about the stability of that situation. On balance, his opinion does not seem to state with certainty that this, indeed, is a problem. Likewise, his opinion about the part of the roof which is, by nature, more akin to a built-up roof and its potential for physical damage because of problems with its membrane is not credited because he is not found to be an expert in those types of roofs.

    
    

15. According to Mr. Adams, the problems with the roof and window seals were representative of incompetence and lack of proper supervision on the part of Respondent. This opinion of Mr. Adams is accepted.

    
    

16. Mr. Adams, in his expert opinion, identified the fact that the window seals, which had been installed in this project, did not have an appropriate slope to allow them to divert water away from the windows, resulting in the possibility of water intrusion into the house. This refers to rainwater. His opinion is accepted.

    
    

17. Although a copy of a punchlist dated August 25, 1987, which Respondent had and is shown as Exhibit 5 admitted into evidence, makes reference to repairs of a roof leak in bedroom 1, on February 2, 1988, Ms. Bright was still having problems with the roof as evidenced by correspondence directed to Stratton Construction Company on that date.

    
    

18. Respondent has been disciplined in the past by the imposition of a

    $100.00 fine in DOAH Case No. 87-2699. This pertained to a contract of August 14, 1986 with Aaron Lee and Valerie Patrice Cobb to renovate their home at 5017 Pearl Street, Jacksonville, Florida. It was the finding in that case that prior to that situation, Respondent had only built new homes in Florida and was unaware of the necessity to obtain a permit to affect repairs to the interior of the home other than the permit he had obtained. The facts went on to describe how Respondent was aware of the need to secure a building permit for construction of the utility room but only applied for that permit on June 11, 1987, long after the work had been completed and he was in dispute with the homeowners. As a consequence, Respondent was found in violation of Section 489.129(1), Florida Statutes, and the fine imposed.

    
    

    CONCLUSIONS OF LAW

    
    

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

    
    

20. Petitioner bears the burden of proof in this case and must show by clear and convincing evidence that Respondent has violated the statute in the manner alleged. Ferris v. Turlington, 510 So.2d 292 (Fla. 1987).

21. It has been proven that Respondent proceeded in the construction at the Bright home without a remodeling permit in violation of local law and thereby violated Sections 489.129(1)(d) and (j), Florida Statutes. A $500.00 fine is recommended pursuant to Rules 21E-17.001(5) and 21E-17.003, Florida Administrative Code.

    
    

22. Respondent also acted under the name of Stratton Construction Company, an entity for which he had not been listed as a qualifying agent with Petitioner, and in a circumstance where his license with Petitioner was held in his proper name. This constituted a violation of Sections 489.129(1)(g) and (j), Florida Statutes. A $500.00 fine is recommended pursuant to Rule 21E- 17.001(1), Florida Administrative Code.

    
    

23. Respondent has also been shown to have been guilty of incompetence and misconduct within the meaning of Section 489.129(1)(m), Florida Statutes, and for those reasons violated Section 489.129(1)(j), Florida Statutes, for his inadequate supervision in the work done on the roof, for the quality of the installation of the window seals and his activities in gaining information about his competitor's bid quotation prior to submission of his own quotation to Ms. Bright. A $1,000.00 fine is recommended pursuant to Rule 21E-17.001(19), Florida Administrative Code. Respondent is not otherwise accountable for the quality of the work in the home because no allegations have been specifically made against him to adequately notice him of claims of unacceptable work in other respects. The reference in the administrative complaint to the specific problems of the roof, the window seals, and his conduct in the competitive-bid process constitutes the allowable allegations. The reference in that paragraph

8 to a claim by Petitioner that the allegations are not limited to those specific references is an unfair approach to the requirement to inform Respondent of allegations placed against him. Had Petitioner wanted to add additional allegations, it could have amended the administrative complaint to describe other concerns which it had. In not doing so, it is precluded from arriving at the hearing and trying to develop those additional claims at that juncture. See Davis v. Department of Professional Regulation, 457 So.2d 1074 (Fla. 1st DCA 1984) and Marvel v. Department of Professional Regulation, Board of Medical Examiners, 498 So.2d 481 (Fla. 1st DCA 1986)(reh. denied 1987).

RECOMMENDATION

In accordance with Chapter 21E-17, Florida Administrative Code, having in mind Respondent's disciplinary history, it is

RECOMMENDED:

That a Final Order be entered which imposes an administrative fine of

$2,000.00 for these violations.

DONE AND ENTERED this 18th day of October, 1989, in Tallahassee, Leon County, Florida.

CHARLES C. ADAMS

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 18th day of October, 1989.

APPENDIX TO RECOMMENDED ORDER, CASE NO. 89-2164

Petitioner's facts are responded to as follows: Paragraphs 1-10 are subordinate to facts found.

Paragraph 11 is subordinate to facts found, except its suggestion of

problems other than those associated with the roof and the window seals, which other problems are not relevant to this inquiry.

Paragraph 12 is subordinate to facts found.

Paragraph 13 is subordinate to facts found, except to the reference to problems other than with the roof and the window seals, which problems are not relevant to this inquiry.

Paragraph 14 is subordinate to facts found, except to the reference to comments by Mr. Adams related to the roofing membrane, which is found to be beyond his expertise.

COPIES FURNISHED:

George W. Harrell, Esquire Department of Professional

Regulation

1940 North Monroe Street Suite 60

Tallahassee, Florida 32399-0750

Kenneth E. Easley, Esquire General Counsel

Department of Professional Regulation

1940 North Monroe Street Tallahassee, Florida 32399-0750

Mr. Fred Seely Executive Director

Construction Industry Licensing Board Post Office Box 2

Jacksonville, Florida 32202

Mr. Stuart Stratton 3365 Silver Palm Drive

Jacksonville, Florida 32250

Docket for Case No: 89-002164

Orders for Case No: 89-002164