STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
DEPARTMENT OF PROFESSIONAL ) REGULATION, CONSTRUCTION ) INDUSTRY LICENSING BOARD, )
)
Petitioner, )
)
vs. ) CASE NO. 89-3002
) DANIEL J. HITTENBERGER, )
)
Respondent. )
)
RECOMMENDED ORDER
Pursuant to notice, a formal hearing was conducted in this case on October 20, 1989, in Fort Lauderdale, Florida, before Stuart M. Lerner, a duly designated Hearing Officer of the Division of Administrative Hearings.
APPEARANCES
For Petitioner: Robert G. Harris, Legal Trainee
Department of Professional Regulation 1940 North Monroe Street, Suite 341
Tallahassee, Florida 32399-0792
For Respondent: Daniel J. Hittenberger, pro se
3746 North West 16th Street Fort Lauderdale, Florida 33311
STATEMENT OF THE ISSUES
Whether Respondent committed the offenses described in the Administrative Complaint?
If so, what disciplinary action should be taken against him?
PRELIMINARY STATEMENT
On January 11, 1989, the Department of Professional Regulation (Department) issued an Administrative Complaint charging that Respondent, a licensed roofing contractor, committed the following violations of Chapter 489, Florida Statutes, in connection with a roofing job undertaken by the contracting business for which he was the qualifying agent:
Respondent has been disciplined by a local government, in violation of 489.129(1)(i), as follows: By Broward County, in 11-86, for unlawful discharge of pollutants in connection with said roofing job.
Respondent gave a guarantee on said job to the Customer, and thereafter failed to reasonably honor said guarantee, in violation of 489.129(1)(m), (j); 489.119; 489.105(4)
There was gross negligence, incompetence, misconduct and/or deceit in connection with said matter, attributable either to Respondent personally, or to Respondent's failure to properly supervise, in violation of Section 489.129(1)(m), (j), and/or 489.119, and 489.105(4); as generally exhibited by, but not limited to, the following: Used wrong color roof coating; excessive runoff or overspray of roof coating, damaging the surrounding property; improper cleaning procedures, causing further damage to the property.
The complaint requested that the Construction Industry Licensing Board, in view of these alleged statutory violations, enter an order "imposing appropriate disciplinary sanctions on Respondent."
Respondent denied these allegations of wrongdoing and requested a formal hearing. On June 2, 1989, the matter was referred to the Division of Administrative Hearings for the assignment of a Hearing Officer to conduct such a hearing.
At hearing, Petitioner presented the testimony of three witnesses: Bertha Guerry, who, along with her husband, contracted with Respondent's firm to perform the roofing work referenced in the Administrative Complaint; Edward T. Weiner, an architect who inspected the Guerrys' roof on September 22, 1986; and Don McKerchar, a qualified expert in the standards and practices in the construction industry in Florida. The only witness to testify on behalf of Respondent was Respondent himself. The parties also stipulated to the admissibility of twenty joint exhibits. In addition to these joint exhibits, Petitioner offered nine exhibits of its own into evidence. All 29 exhibits offered into evidence were received by the Hearing Officer.
At the close of the hearing, the Hearing Officer announced on the record that post-hearing pleadings had to be filed no later than ten days after the filing of the transcript of the hearing with the Division of Administrative Hearings. The hearing transcript was filed with the Division on November 3, 1989. Petitioner filed a proposed recommended order on November 16, 1989.
Petitioner's proposed recommended order contains proposed findings of fact. These proposed findings of fact have been carefully considered and are specifically addressed in the Appendix to this Recommended Order.
FINDINGS OF FACT
Respondent is a roofing contractor licensed to practice in the State of Florida. Since January, 1982, he has been the qualifying agent for Tropical Clima-Coat Inc. (Tropical).
On September 21, 1983, Tropical entered into a written contract with Bertha Guerry and her husband Joseph, in which it agreed, for $2,449.10, to perform the following roofing work on the Guerrys' residence, which was located at 2185 S.W. 38th Street in Fort Lauderdale, Florida:
Remove loose gravel and dirt from existing roof surface/flat deck.
Apply Tropical Clima-Coat's resin- based cement to fill holes and cracks in the roof surface.
Apply acrylic primer to provide maximum adhesion for acrylic waterproofing.
Apply acrylic waterproofing, creating a uniform, bonded, elastomeric, watertight surface.
Apply White Acrylic Roof Finish as a durable, mildew-resistant wear barrier.
The contract further provided that the Guerrys were to receive a "5 year, 100% warranty against leaks."
The work specified in the contract was completed on October 31, 1983, and the Guerrys thereupon paid Tropical in full. Tropical, in turn, gave the Guerrys a written warranty signed by its Vice-President, which provided, in part, as follows:
If within 5 years after Tropical Clima- Coat applies its Roof System to your roof, a leak develops because of the failure of our roofing system,* we will repair it free.
* Damage excluded from warranty: Tropical Clima-Coat shall not be liable for any leaks or damage caused by riots or vandalism, termites or other insects, penetration of the roof or waterproofing system by nails; nor shall Tropical Clima-Coat be liable for leaks or damage caused by acts of God, including but not limited to: lightening, gale,
hurricane, tornado, hailstorm, flood, earthquake, or unusual phenomena of the elements; nor from damage to roof due to settlement, distortion, dry rot, failure or cracking of the roof deck, walls, partitions, or foundation of the structure; nor defects or failure of materials used as a roof base, over
which our waterproofing system is applied; nor by biological growth, traffic upon the roof or any similar cause.
The warranty also contained the following provision prescribing the time and manner in which claims under the warranty had to be made:
The owner of the roof will notify Tropical Clima-Coat immediately by certified mail, at its main office (3746
N.W. 16th Street, Ft. Lauderdale, Florida 33311) of any leaks alleged to result from causes not excluded from coverage by this warranty. Such notification must be mailed within 30 days of discovery of the need for repairs, and all correspondence must include the above Certificate Number.
In June, 1986, Mrs. Guerry noticed that there was a leak in her roof above the living room. She telephoned Tropical and requested that it repair the leak in accordance with the warranty she and her husband had been given. Tropical responded promptly to Mrs. Guerry's request. It sent one of its workers to the Guerry residence and he patched the leak.
Arrangements were made for the worker to return to the Guerry residence and pressure clean the roof. Pursuant to these arrangements, the worker came back to the residence and pressure cleaned the roof as he had promised. It took him two hours to complete the task.
Following the pressure cleaning of the roof, Mrs. Guerry discovered that there were now leaks in the roof above the kitchen. Having made this discovery, she again telephoned Tropical and requested that it repair these newly-discovered leaks. As it had done in response to her previous telephonic request, Tropical dispatched a worker to the Guerry residence, albeit not as promptly as on the prior occasion. The worker applied black ceramic granules to the surface of the roof in an attempt to alleviate the problem.
The Guerrys now had a black roof instead of the white roof for which they had contracted. Mrs. Guerry again telephoned Tropical and complained about the new color of her roof. Tropical responded by having a worker go to the Guerry residence and spray paint the roof white.
The paint, however, did not adhere well to the granular material on the roof. Furthermore, Mrs. Guerry observed new leaks in the roof. On September 8, 1986, she telephoned Tropical to advise it of these recent developments. Respondent visited the Guerry residence the next day. He told Mrs. Guerry that Tropical intended to remove the granules and recoat the roof with an asphalt material imbedded with a polyester fabric for greater strength to prevent against leaks. He further assured her that, upon completion of the repair work, the roof would be white.
On September 15, 1986, a crew of Tropical workers were on the Guerrys' roof with approximately 80 to 100 gallons of asphalt when a sudden, unexpected heavy rainstorm interrupted their work. The rainwater mixed with the asphalt
and created "black goo," some of which fell from the roof onto the sides of the house, the porch, the driveway, the sidewalks, the grass, the bushes, and the trees.
Tropical had its workers endeavor to clean up the mess that the rainstorm had created. They used mineral spirits in an attempt to remove the hardened remains of the "black goo" from the porch, the driveway and the sidewalks and swept the residue onto the grass, bushes and trees. In so doing, they contaminated the soil and killed the vegetation.
Respondent was responsible for the decision to use mineral spirits in the cleanup effort. He did not realize, as he should have, that the use of this substance would result in environmental damage.
The cleanup progressed slowly. Frustrated by the lack of substantial progress, Mrs. Guerry telephoned Respondent and demanded that he go to her home and do something about the situation. Respondent did not believe that his presence at the home would help matters any and he told Mrs. Guerry so. Nonetheless, on September 17, 1986, he paid his final visit to the Guerry residence.
During his visit, Respondent met with Mrs. Guerry for approximately an hour and a half. Mrs. Guerry expressed to Respondent her outrage concerning the situation. Respondent recognized that Mrs. Guerry had a right to be annoyed and that Tropical needed to take action to remedy her plight. He wrote down on a piece of paper the following things that Tropical would do for the Guerrys:
FIX ROOF
LOOSEN SOIL W/RAKE
4. REMOVE "STICKINESS" FROM DRIVEWAY AND SIDEWALK
3. REMOVE BLACK FROM CHATTAHOOCHEE (STAINS WILL REMAIN)
REMOVE "STICKINESS" FROM CHATTAHOOCHEE
REMOVE STICKINESS FROM DECORATIVE WALL (STAINS WILL REMAIN)
REMOVE STICKINESS FROM SIDEWALKING STONES
REMOVE BLACK FROM CHAT @ BACK DOOR SOD- TO BE DETERMINED LATER
Respondent indicated he would sign this document and he asked Mrs. Guerry to do the same to acknowledge their understanding and agreement as to the remedial action Tropical was to take. Mrs. Guerry refused.
Nonetheless, the cleanup effort continued. Mrs. Guerry, however, did not permit Tropical to continue its repair work on the roof.
Concerned about the damage that had been done to the vegetation on her property, Mrs. Guerry contacted a horticultural consultant, Robert G. Haelhle. Haelhle surveyed the property on September 18, 1986. Following his survey he wrote a letter to the Guerrys advising them of the following:
On September 18, 1986, I visited the Guerry property at Mrs. Guerry's request. The landscape plantings are in real trouble due to a mineral spirits spill. Mineral spirits and water were used to clean up roofing tar that washed off the roof after a heavy rainstorm.
The kerosene [sic] and water mixture washed over the lawn, around the base of a West Indian Cherry tree (very rare), an arborvitae, and a 165 foot Ixora hedge on the east and west sides of the house. The Ixora hedge is over 7 feet tall and 30 years old and would not be replaceable.
The mineral spirits/water mix will poison the soil and eventually could affect the water table. All affected soil will have to be removed from the area before any new planting can be accomplished. The West Indian Cherry was starting to yellow and the grass was dying at the time of my visit. Time is of the essence to preserve the remaining plantings. The kerosene [sic]/water mix poisons the root system of the plants and does not allow for normal water penetration. I am not optimistic about the remaining plantings.
I contacted Jane McCarthy of the Environmental Quality Board, tel: 765- 5881. She was to send an inspector to assess the soil damage at the site.
Neither Tropical nor Respondent replaced the "plantings" that had been damaged or destroyed as a result of the cleanup effort.
On September 22, 1989, Mrs. Guerry telephoned Respondent. She reiterated that she did not want any work done on the roof until she had an independent expert inspect it and provide her with guidance. That same day, Edward T. Weiner, a licensed architect hired by the Guerrys, inspected their roof. Based on his observations of the condition of the roof, it was Weiner's opinion that the repair work done by Tropical was unacceptable and that a new roof needed to be installed. He so advised the Guerrys by letter dated September 29, 1986.
The Guerrys also hired an attorney, Craig W. Lekach, to furnish them legal advice and representation concerning their dealings with Tropical. On September 23, 1986, Lekach telephoned Respondent and instructed him to "get busy" with the repair work that needed to be done. The following day,
Respondent telephoned Mrs. Guerry and told her that he was anxious to complete the repair work on her roof. Mrs. Guerry took the opportunity to again express her displeasure with the work Tropical had done. She also indicated that she had yet to hear from Weiner regarding his assessment of the condition of the roof.
That same day, September 24, 1986, Respondent received word that a Broward County Environmental Compliance Officer had inspected the Guerrys' property and determined that mineral spirits used in the cleanup effort had contaminated soil on the property. Respondent was further informed that the excavation of the contaminated soil would remedy the situation.
Having received permission from the Guerrys' attorney to proceed with the repair work, Respondent sent a crew to the Guerry residence on September 25, 1986, to vent the roof. Mrs. Guerry, however, did not allow the workers to install the vents. Another telephone conversation between Mrs. Guerry and Respondent ensued. Respondent reiterated that it was his desire to finish the work that needed to be done on the roof. Mrs. Guerry, in turn, indicated that she would not let Tropical continue its work on the roof until she had Weiner's report in hand and had the opportunity to further discuss the matter with her attorney, her son and others with whom she had consulted. The conversation ended with Respondent telling Mrs. Guerry that he would be waiting to hear from her.
On September 26, 1989, Respondent wrote a letter to Attorney Lekach in which he complained that Mrs. Guerry was interfering with Tropical's efforts to make her whole. The letter read, in part, as follows:
We do carry casualty insurance and I feel it may be best to supply you with the name and address of our agent and allow him to coordinate with Mrs.
Guerry's homeowners agent. Truly, this situation is considered an "act of God" and I do not believe that we can adequately communicate with the customer as she is in such an excited state we now find her implacable.
We would be glad to install the proper roof vents and do the final painting of her roof if she will permit us. If she will not, then we must close the file and direct her to our insurance company.
This is really unfortunate! Sound roofing practices were utilized; we were careful to watch the weather and, although we had a sudden cloudburst, we did stay around to try to clean up. We have not been negligent and we have spent considerable time and money to
resolve the situation. Please advise at your earliest convenience.
Respondent next heard from Lekach on October 9, 1986. Later that same day, pursuant to Lekach's request, Respondent met with Lekach and discussed "the
problems at the Guerry residence." The following day, Lekach sent Respondent a letter memorializing the highlights of their discussion. The letter provided, in part, as follows:
You will be permitted access to the Guerry property for the following purposes: Inspection of the roof, cleaning of the yard which will include replacement of sod as necessary, replacement of topsoil as necessary, and removal of tar.
The performance of the above shall neither be construed as an admission of liability on your part, nor an acceptance of this work as being satisfactory or complete. I agree, however, that it is imperative that steps be taken immediately to mitigate the damage.
Further we will both be doing the following:
obtain information about repair methods and costs for chattahoochee surface.
obtain information about repair methods for the "staining" problem on walls and patio so that the area can be painted.
review proposals for correction or replacement of roof, if necessary.
There is going to have to be a certain amount of good faith between you and Mrs. Guerry if this situation is to be resolved without litigation.
Accordingly, we are now permitting you access to the property in the hope that you will also attend to the other matters set forth above. Mrs. Guerry has been hesitant to accept a partial resolution of this problem without your commitment to complete all of the repairs and this is the reason that the cleanup was delayed in some respects.
Hopefully, we will be able to work towards resolving all aspects of the damage.
On October 11, 1986, Respondent dispatched a crew to the Guerry property to perform the excavation work that was necessary to remove the soil that had been contaminated by the mineral spirits used in the cleanup effort.
On this occasion, the workers were given access to the property for this purpose and they removed and replaced the contaminated soil.
On October 13, 1986, Tropical sent a crew to the Guerry property to inspect their roof. Mrs. Guerry would not permit the Tropical workers to enter the premises. She indicated that she would not allow the workers on her property to inspect or repair the roof until she had heard from all those with whom she had consulted regarding the matter. Having been denied access to the property by Mrs. Guerry, the workers left without performing their inspection. At no time thereafter did the Guerrys directly contact Tropical and request that the workers return to the residence to finish the repair of the roof. In the absence of any such direct communication from the Guerrys, Tropical did not attempt to do any further repair work on the roof after October 13, 1986.
On October 6, 1986, the Broward County Environmental Quality Control Board had issued a notice of violation citing Tropical with discharg[ing] a substance (mineral spirits) to ground." A hearing on the charge was held before the Board on November 7, 1986. Respondent appeared on behalf of Tropical at the hearing. He admitted that Tropical was guilty of discharging a pollutant, to wit: mineral spirits, into the soil, although he explained that the violation was a product of ignorance on his part regarding the qualities of mineral spirits. Based on this admission of guilt, the Board imposed a $500.00 fine, which was subsequently paid by Respondent.
In late 1986, the Guerrys filed with the Department of Professional Regulation a complaint against Respondent. An investigation of the complaint was conducted, following which an initial determination was made that there was "presently no probable cause to find that [Respondent] violated the contractor disciplinary statutes." Respondent was notified of this determination by letter dated May 14, 1987.
This determination of no probable cause was subsequently reversed. On January 11, 1989, an administrative complaint was filed by the Department charging Respondent with wrongdoing in connection with the work performed on the Guerry home.
The Guerrys no longer own the home. The property was purchased by Broward County in furtherance of the County's airport expansion project.
Respondent has previously been disciplined by the Construction Industry Licensing Board. In early 1987, Respondent was fined $500.00 for failing to obtain a permit as required by local law. In March, 1988, he was fined $1,500.00 for failing to call for all required inspections. In August, 1988, he was fined $500.00 for proceeding without a required permit, failing to obtain all required inspections, failing to reasonably honor a guarantee, and displaying gross negligence, incompetence or misconduct.
CONCLUSIONS OF LAW
The Department of Professional Regulation has been vested with statutory authority to issue licenses to those qualified applicants seeking to engage in the construction contracting business in the State of Florida. Section 489.115, Fla. Stat. Licensure permits the licensee "to engage in contracting only for the type of work covered by the [license]." Section 489.115(1)(b), Fla. Stat.
A business entity, like Tropical, may obtain such a license, but only through a "qualifying agent." The "qualifying agent" must be "legally qualified to act for the business organization in all matters connected with its contracting business and [have the] authority to supervise construction undertaken by such business organization." The license which authorizes the business entity to act as a construction industry contractor is issued "in the name of the qualifying agent, and the name of the business organization [is] noted thereon." Section 489.119, Fla. Stat. The license which is the subject of the instant disciplinary proceeding is such a license. It is issued in the name of Respondent, who is the "qualifying agent" for Tropical.
Once a license is issued, it may be revoked or suspended by the Construction Industry Licensing Board if an administrative complaint is filed alleging that the licensee committed any of the acts proscribed by Section 489.129(1), Florida Statutes, and it is shown that the allegations of the complaint are true. Proof greater than a mere preponderance of the evidence must be submitted. Clear and convincing evidence is required. See Ferris v. Turlington, 510 So.2d 292 (Fla. 1987); Pascale v. Department of Insurance, 525 So.2d 922 (Fla. 3d DCA 1988). "The evidence must be of such weight that it produces in the mind of the trier of fact a firm belief or conviction, without hesitancy, as to the truth of the allegations sought to be established." Slomowitz v. Walker, 429 So.2d 797, 800 (Fla. 4th DCA 1983). Furthermore, the revocation or suspension of a license may be based only upon offenses specifically alleged in the administrative complaint. See Hunter v. Department of Professional Regulation, 458 So.2d 842, 844 (Fla. 2nd DCA 1984).
At all times material to this case, Section 489.129, Florida Statutes, provided in pertinent part as follows: 1/
The board may revoke, suspend, ... the certificate or registration of a contractor and impose an administrative fine not to exceed $5,000, place a contractor on probation, or reprimand or censure a contractor if the contractor, or if the business entity or any general partner, officer or director, trustee, or member of a business entity for which the contractor is a qualifying agent, is found guilty of any of the following acts:
* * *
Disciplinary action by any municipality or county, which action shall be reviewed by the state board before the state board takes any action of its own.
* * *
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.
If a contractor disciplined under subsection (1) is a qualifying agent for a business entity and the violation was performed in connection with a construction project undertaken by that business entity the board may impose an additional administrative fine not to exceed $5,000 against the business entity or against any partner, officer, director, trustee, or member if such person participated in the violation or knew or should have known of the violation and failed to take reasonable corrective action.
The board may specify by rule the acts or omissions which constitute violations of this section.
In accordance with subsection (3) of Section 489.129, the Board has specified by rule that the "failure to reasonably honor [a] warranty" constitutes "misconduct" for which a contractor may disciplined. Fla. Admin. Code Rule 21E- 17.061(11).
A "qualifying agent" has the statutory responsibility "to supervise, direct, manage, and control the contracting activities of the business entity with which [he] is connected." Section 489.105(4), Fla. Stat. This duty may not be delegated by the "qualifying agent to another licensed contractor." Because he has a nondelegable statutory obligation to oversee all construction projects undertaken by the business entity he has qualified, the "qualifying agent" may be held liable and disciplined for statutory violations committed in connection with such projects, regardless of his actual involvement in these projects, on the theory that he breached his duty "to supervise, direct, manage, and control." See Gatewood v. McGee, 475 So.2d 720 (Fla. 1st DCA 1985); Alles v. Department of Professional Regulation, 423 So.2d 624 (Fla. 5th DCA 1982).
The Administrative Complaint in the instant case charges Respondent with various violations of Chapter 489, Florida Statutes, relating to roofing work done on the Guerry residence. The work in question was performed by Tropical, the business entity for which Respondent is the "qualifying agent."
Among the allegations set forth in the complaint is that Respondent, in his capacity as Tropical's "qualifying agent," failed to reasonably honor a guarantee that had been given to the Guerrys. The preponderance of the evidence adduced at hearing, however, suggests the contrary. It appears that, notwithstanding the Guerrys' failure to notify Tropical by certified mail as required by the terms of the written guarantee, Tropical made a reasonable effort to repair the leaks about which Guerrys complained. Although it may not have completed the repair work it had started, its failure to do so was the result of circumstances beyond its control rather than a lack of reasonable effort on its part. Such being the case, the Board should dismiss the charge alleging that there was a failure to reasonably honor a guarantee given the Guerrys.
The Administrative Complaint also alleges that "[t]here was gross negligence, incompetence, misconduct and/or deceit in connection with said matter, attributable to Respondent personally, or to Respondent's failure to
properly supervise," in that the "wrong color roof coating" was used, there was "excessive runoff or overspray of roof coating," and "improper cleaning procedures" were employed. The record evidence is insufficient to establish any wrongdoing in connection with either the color of the Guerrys' roof or the runoff referenced in the complaint.
The runoff was not caused by anyone's failure to exercise reasonable prudence, diligence or care. To the contrary, it was the product of an unanticipated and sudden downpour. While the runoff, as the complaint alleges, "damag[ed] the surrounding property" it was through no fault of Respondent's that such damage occurred. Neither can Respondent bear any blame for the failure to provide the Guerrys with a white roof, as per their contractual agreement with Tropical, inasmuch as the Guerrys thwarted Tropical's attempts to complete the work necessary to produce a roof of that color.
The record evidence, however, does clearly and convincingly establish that Respondent displayed gross negligence and incompetence in his supervision of the cleanup effort on the Guerry property when he authorized the use of a substance which he should have known was a contaminant that would harm the soil and vegetation on the property. Such conduct constitutes a violation of Section 489.129(1)(j) and (m), Florida Statutes.
Tropical was fined $500.00 by the Broward County Environmental Quality Control Board for "[d]ischarg[ing this] substance (mineral spirits) to [the] ground." Such action, however, does not constitute disciplinary action taken against Respondent by a local construction industry licensing authority which provides the Construction Industry Licensing Board with cause to discipline Respondent pursuant to Section 489.129(1)(i), Florida Statutes. Accordingly, that portion of the Administrative Complaint which alleges to the contrary should be dismissed.
In determining what disciplinary action should be taken against Respondent for his gross negligence and Incompetence, it is necessary to consult Chapter 21E-17, Florida Administrative Code, which contains the Construction Industry Licensing Board's disciplinary guidelines. Cf. Williams v. Department of Transportation, 531 So.2d 994, 996 (Fla. 1st DCA 1988)(agency is required to comply with its disciplinary guidelines in taking disciplinary action against its employees).
Florida Administrative Code Rule 21E-17.001 provides in pertinent part:
Normal Penalty Ranges. The following guidelines shall be used in disciplinary cases, absent aggravating or mitigating circumstances and subject to the other provisions of this Chapter.
* * *
(19) 489.129(1)(m): Gross negligence, incompetence, and/or misconduct, fraud or deceit.
Causing no monetary or other harm to licensee's customer, and no physical harm to any person. First violation,
$250 to $750 fine; repeat violation,
$1000 to $5000 fine and 3 to 9 month suspension.
Causing monetary or other harm to licensee's customer, or physical harm to any person. First violation, $500 to
$1500 fine; repeat violation, $1000 to
$5000 fine and suspension or revocation.
Because Respondent's violation "harmed" the Guerrys, subsection (19)(b), rather than (19)(a), of Rule 21E-17.001 applies in the instant case.
Pursuant to Florida Administrative Code Rule 21E-17.007, the Construction Industry licensing Board, in addition to imposing the foregoing penalties, may also place the licensee on probation if it determines that such action is required "to assure that the licensee operates properly and within the law in the future."
"Repeat violation," as used in this rule chapter, is described in Florida Administrative Code Rule 21E-17.003 as follows:
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
regardless of the chronological relationship of the acts underlying the various disciplinary actions, and (ii) regardless of whether the violations in the present or prior disciplinary actions are of the same or different subsections of the disciplinary statutes.
The penalty given in the above list for repeat violations is intended to apply only to situations where the repeat violation is of a different subsection of Chapter 489 than the first violation. Where, on the other hand, the repeat violation is the very same type of violation as the first violation, the penalty set out above will generally be increased over what is otherwise shown for repeat violations on the above list.
Respondent is a "repeat violator" who has previously been disciplined for violating Section 489.129(1)(m), Florida Statutes, the same statutory provision that he violated in the instant case.
The aggravating and mitigating circumstances which are to be considered before a particular penalty is chosen are listed in Florida Administrative Code Rule 21E-17.002. They are as follows:
Monetary or other damage to the licensee's customer, in any way associated with the violation, which damage the licensee has not relieved, as of the time the penalty is to be assessed. (This provision shall not be given effect to the extent it would contravene federal bankruptcy law.)
Actual job-site violations of building codes, or conditions exhibiting gross negligence, incompetence, or misconduct by the licensee, which have not been corrected as of the time the penalty is being assessed.
The severity of the offense.
The danger to the public.
The number of repetitions of offenses.
The number of complaints filed against the licensee.
The length of time the licensee has practiced.
The actual damage, physical or otherwise, to the licensee's customer.
The deterrent effect of the penalty imposed.
The effect of the penalty upon the licensee's livelihood.
Any efforts at rehabilitation.
Any other mitigating or aggravating circumstances.
Having considered the facts of the instant case in light of the provisions of Chapter 21E-17, Florida Administrative Code, it is the view of the Hearing Officer that the appropriate penalty in the instant case is a $1500 fine and the suspension of Respondent's license for a period of six months.
Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby
RECOMMENDED that the Construction Industry Licensing Board enter a final order (1) finding Respondent guilty of gross negligence and incompetence, in violation of Section 489.129(1)(j) and (m), Florida Statutes, in connection with his supervision of the cleanup of the Guerry residence; (2) suspending Respondent's license for six months and imposing a fine of $1500 for said violation; and (3) dismissing the remaining charges against Respondent that are set forth in the instant Administrative Complaint.
DONE AND ENTERED in Tallahassee, Leon County, Florida, this 17th day of November, 1989.
STUART M. LERNER
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 11th day of November, 1989.
ENDNOTES
1/ Effective October 1, 1988, Section 489.129, Florida Statutes, was amended to give the Construction Industry Licensing Board the additional authority to require an errant contractor to make "financial restitution to a[n aggrieved] consumer" and to take "continuing education" courses. Because the amendment imposes new penalties and it took effect after the acts of alleged professional misconduct were committed by Respondent, it has no application to the instant case. See Larson v. Independent Life and Accident Insurance Co. 29 So.2d 448 (Fla. 1947); Anderson v. Anderson, 468 So.2d 528, 530 (Fla. 3d DCA 1985), cert.
denied, 476 So.2d 672 (Fla. 1985).
2/ The testimony referenced in this proposed finding is not particularly helpful inasmuch as it was equivocal and not based on any personal observations made by the witness regarding the condition of the roof.
APPENDIX TO RECOMMENDED ORDER, CASE NO. 89-3002
The following are the Hearing Officer's specific rulings on the proposed findings of fact submitted by Petitioner in the instant case:
Rejected because it is more in the nature of a statement of the law than a finding of fact.
Accepted and incorporated in substance, although not necessarily repeated verbatim, in this Recommended Order.
Accepted and incorporated in substance.
Accepted and incorporated in substance.
Accepted and incorporated in substance.
Accepted and incorporated in substance.
Accepted and incorporated in substance.
Accepted and incorporated in substance.
Rejected because it is not supported by persuasive competent substantial evidence. 2/
Accepted and incorporated in substance.
Rejected because it is a recitation of testimony rather than a finding of fact based on such testimony.
First sentence: Rejected because it is not supported by persuasive competent substantial evidence to the extent that it suggests that Respondent should have realized that stripping and replacing the roof was the only way to alleviate the problems the Guerrys were experiencing. To the extent that it simply indicates that Respondent, as Tropical's "qualifying agent," failed to strip and replace the roof to remedy the situation, it has been accepted and incorporated in substance. Second sentence: Accepted and incorporated in substance.
Accepted and incorporated in substance
First sentence: Accepted and incorporated in substance. Second sentence: Rejected because it is not supported by persuasive competent substantial evidence to the extent that it suggests that the spillage was the result of the Respondent's failure to take reasonable precautionary measures. To the extent that it simply indicates that Respondent did not prevent the "spillage" from occurring, it has been accepted and incorporated in substance. Third sentence: Rejected because it is a recitation of testimony rather than a finding of fact based on such testimony.
Accepted and incorporated in substance.
Rejected because it is not supported by persuasive competent substantial evidence to the extent that it states that Respondent and not Tropical was fined by the Broward County Environmental Quality Control Board. In all other respects, it has been accepted and incorporated in substance.
Rejected because it is a recitation of testimony rather than a finding of fact based on such testimony.
Accepted and incorporated in substance.
Accepted and incorporated in substance.
Accepted and incorporated in substance.
First sentence: Accepted and incorporated in substance. Second sentence: Rejected because it is not supported by persuasive competent substantial evidence to the extent that it suggests that Respondent should have realized that stripping and replacing the roof was the only way to alleviate the problems the Guerrys were experiencing. To the extent that it simply indicates that Respondent, as Tropical's "qualifying agent," failed to strip and replace the roof to remedy the situation, it has been accepted and incorporated in substance.
First sentence: Rejected because it is not supported by persuasive competent substantial evidence. Second sentence: Accepted and incorporated in substance.
Accepted and incorporated in substance.
Rejected because it is more in the nature of argument concerning the weight to be given conflicting testimony than a finding of fact. To the extent that there exists a conflict between Mrs. Guerry's and Respondent's testimony regarding the access given Tropical to the Guerry residence, Respondent's testimony has been credited inasmuch as his recollection of the matter appears to be clearer than Mrs. Guerry's.
First sentence: Accepted and incorporated in substance. Second sentence: Rejected because it is not supported by persuasive competent substantial evidence.
Accepted and incorporated in substance.
Rejected because it is not supported by persuasive competent substantial evidence.
COPIES FURNISHED:
Harrell, Esquire
Robert G. Harris, Legal Trainee Department of Professional
Regulation
1940 North Monroe Street, Suite 341
Tallahassee, Florida 32399-0792
Daniel J. Hittenberger 3746 N.W. 16th Street
Fort Lauderdale, Florida 33311
Fred Seely, Executive Director Construction Industry Licensing Board 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.: 78810
DOAH CASE NO.: 89-3002
DANIEL JOSEPH HITTENBERGER LICENSE NO.: CC CA11677,
Respondent.
/
FINAL ORDER
THIS MATTER came before the Construction Industry Licensing Board pursuant to Section 120.57(1)(b)(9), Florida Statutes, on April 12, 1990, in Palm Beach
Gardens, 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, including the exceptions filed, the Board makes the following:
FINDINGS OF FACT
The hearing officer's findings of fact are hereby approved and adopted in toto.
There is competent, substantial evidence to support the hearing officer's findings of fact.
CONCLUSIONS OF LAW
The Board has jurisdiction of this matter pursuant to the provisions of Section 120.57(1), and Chapter 489, Florida Statutes.
The hearing officer's conclusions of law are hereby approved and adopted except where they are in opposition to the exceptions filed by the Petitioner to said Conclusions in which case the Petitioner's Exceptions to Recommended Order is hereby approved and adopted and fully incorporated herein by reference.
The penalty recommended by the Hearing Officer is hereby rejected for those reasons set forth in Petitioner's Exceptions to Recommended Order which is hereby approved and adopted and fully incorporated herein by reference.
There is competent, substantial evidence to support the Board's findings and conclusions.
WHEREFORE, IT IS HEREBY ORDERED AND ADJUDGED:
Respondent's licensure to practice contracting is hereby REVOKED. Accordingly, within thirty (30) days, the Respondent shall return his licensure to the Board Offices, Post Office Box 2, Jacksonville, Florida 32201, or shall surrender said licensure to an investigator of the Department of Professional Regulation.
Respondent shall pay an administrative fine of five thousand dollars ($5,000) within 30 days.
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 13th day of July, 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
Daniel Joseph Hittenberger 3746 North West 16th Street Lauderhill, Florida 33311
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 26th day of July, 1990.
F I L E D
Department of Professional Regulation Florida Construction Industry Licensing Board
BOARD CLERK
Clerk Date: July 26, 1990
| Issue Date | Proceedings |
|---|---|
| Nov. 17, 1989 | Recommended Order (hearing held , 2013). CASE CLOSED. |
| Issue Date | Document | Summary |
|---|---|---|
| Jul. 13, 1990 | Agency Final Order | |
| Nov. 17, 1989 | Recommended Order | Qualifying quilty of gross negl. in connection with cleanup activities by allowing use of contaminant harmful to plants & soil; other chgs not proven. |
CONSTRUCTION INDUSTRY LICENSING BOARD vs RICHARD MCDOUGAL, 89-003002 (1989)
CONSTRUCTION INDUSTRY LICENSING BOARD vs. RUTH OGNE, 89-003002 (1989)
CONSTRUCTION INDUSTRY LICENSING BOARD vs. CLIFFORD B. SMITH, 89-003002 (1989)
CONSTRUCTION INDUSTRY LICENSING BOARD vs. BRUCE A. WILLIAMS, 89-003002 (1989)
CONSTRUCTION INDUSTRY LICENSING BOARD vs. LARRY W. DIXON, 89-003002 (1989)
