STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF PROFESSIONAL )

REGULATION, CONSTRUCTION )

INDUSTRY LICENSING BOARD, )

)

Petitioner, )

)

vs. ) CASE NO. 91-5227

)

RAYMOND D. SIMMONS, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the above matter was heard before the Division of Administrative Hearings by it duly designated Hearing Officer, Donald R. Alexander, on November 21, 1991, in Gainesville, Florida.

APPEARANCES

For Petitioner: William S. Cummins, Esquire

1940 North Monroe Street, Suite 60

Tallahassee, Florida 32399-0792 For Respondent: No appearance

STATEMENT OF THE ISSUES

The issue is whether respondent's license as a registered roofing contractor should be disciplined for the reasons set forth in the administrative complaint.

PRELIMINARY STATEMENT

This matter began on October 1, 1990, when petitioner, Department of Professional Regulation, Construction Industry Licensing Board, filed an administrative complaint charging respondent, Raymond D. Simmons, licensed as a roofing contractor, with having violated Subsections 489.129(1)(j) and (m), Florida Statutes (1987). More specifically, it was alleged that on May 3, 1988, respondent contracted to re-roof a residence in Gainesville, Florida, that during the work his agents cut through the roof trusses causing permanent instability and damage to the house, and that he later received a letter of reprimand from the City of Gainesville Building Department. For this conduct, he is charged with failing to properly supervise the job in violation of sections 489.119 and 489.129(1)(j) and with gross negligence, incompetence, and misconduct in the practice of contracting within the meaning of subsection 489.129(1)(m). Respondent disputed these allegations and requested a formal hearing pursuant to Subsection 120.57(1), Florida Statutes (1989). The matter was referred by petitioner to the Division of Administrative Hearings on August 20, 1991, with a request that a hearing officer be assigned to conduct a

hearing. By notice of hearing dated September 3, 1991, a formal hearing was scheduled on November 21, 1991, in Gainesville, Florida.

At final hearing, petitioner presented the testimony of Charles and Thea Ansman (respondent's customers), William G. Sanders, a City of Gainesville building inspector and accepted as an expert in building inspections, and Judith

1. Quandt, an attorney. Also, it offered petitioner's exhibits 1-11. All exhibits were received in evidence. Respondent did not appear.

   
   

   There is no transcript of hearing. Proposed findings of fact and conclusions of law were filed by petitioner on December 9, 1991. A ruling on each proposed finding has been made in the Appendix attached to this recommended order.

   
   

   FINDINGS OF FACT

   
   

   Based upon the entire record, the following findings of fact are determined:

   
   

   1. At all times relevant hereto, respondent, Raymond D. Simmons, was licensed as a registered roofing contractor having been issued license number RC 0055320 by petitioner, Department of Professional Regulation, Construction Industry Licensing Board (Board). He has been licensed as a roofing contractor since November 1987. The Board's official records reflect that on July 1, 1991, the license was placed on the delinquent status for non-renewal and is now considered "invalid." 1/ When the events herein occurred, respondent was the qualifying agent for Simmons and Sons Plumbing and Roofing, Route 1, Box 191 (County Road 225), Waldo, Florida. Except for this action, there is no evidence that respondent has ever been disciplined by the Board.

      
      

   2. On May 3, 1988, respondent submitted a proposal to Charles and Thea Ansman to repair the roof on their home located at 5132 N. W. 29th Street, Gainesville, Florida. With minor modifications, the proposal was accepted by the Ansmans on May 10, 1988. According to the agreement, respondent was to perform the following services:

      
      

      Tear off old shingles dry-in with 15 lb. felt and replace with Corning Owens 20 year fungus resistant shingles. Replace all plumbing stacks and ease drips. Will replace back porch with 3-ply build-up roof will coat it with roof coating 10 year warranty on workmanship 20 year manufactor [sic] on shingles and build-up roof. Will replace all wood that needs to be replaced.

      
      

      Although the agreement does not specifically refer to ridge vents, the parties also agreed that respondent would install a ridge vent on the home.

      
      

   3. On May 16, 1988, respondent made application for a building permit from the City of Gainesville to "reroof" the Ansman's home. The permit was issued on May 20, 1988, in the name of Simmons & Sons Plumbing and Roofing.

      
      

   4. Respondent commenced work on the project on May 16 and continued the work over a period of several days. During this period of time, respondent was frequently on the job site overseeing the work. Indeed, Thea Ansman said

      respondent was at her home approximately half of the time while the repairs were being made. Thus, while respondent undoubtedly supervised the job, for the reasons stated in findings of fact 6 and 7, he nonetheless failed to "properly" supervise the work.

      
      

   5. On May 20, 1988, Thea Ansman paid respondent in full for the work. Although the job was not finished, respondent told Mrs. Ansman he would return the next day to complete the work. When respondent failed to return, the Ansmans repeatedly telephoned him during the next few months, but respondent either refused to speak with the Ansmans or told them he would return within a few days. However, the work was never finished and respondent never returned to the job site.

      
      

   6. While inspecting the roof one day, Charles Ansman noted that the roof trusses, an intregal part of the load bearing capacity of the structure, were cut at their peaks. The depth of the cuts was between one and two inches and was apparently the result of a saw-blade not set at the proper height when the ridge vent was installed. Sometime in July or August 1988 Charles Ansman discussed the damage with respondent and requested that respondent repair the same. Respondent refused to do so on the ground he was not responsible for the damage. Ansman then filed a complaint with the City of Gainesville Building Department. On September 9, 1988, a city building inspector inspected the home and confirmed that virtually every truss was cut and that the integrity of the roof was in jeopardy. He also observed that the soffits were improperly installed in some cases, and in others, were missing altogether. A notice of violation was then issued by the city on October 3, 1988, charging respondent with violating the Standard Building Code in two respects. More specifically, it was charged that respondent's workmanship violated sections 1701.1.1 and 1708.2.1 of the 1985 Standard Building Code, as amended through 1987. These sections pertain to the quality and design of wood trusses and the design of trussed rafters, respectively. At a hearing before the city's Trade Qualifying Board, respondent admitted his workers had violated the cited sections and caused the damage to the trusses. However, respondent denied liability on the theory that the workers, and not he personally, had negligently damaged the house. Respondent was thereafter issued a letter of reprimand for his actions.

      
      

   7. In order to recover their damages, which included the replacement of all damaged trusses, the Ansmans filed suit against respondent in Alachua County small claims court. On April 18, 1989, they received a judgment in the amount of $1,050. The judgment was eventually satisfied but only after the Ansmans threatened to levy on respondent's real property located in Alachua County. In preparation for the suit, the Ansmans obtained an engineering report which corroborates the findings made by the city building inspector concerning the damage and negligence on the part of respondent's work crew. By allowing the work to be performed in that manner, respondent was incompetent and committed misconduct in his practice of contracting. However, there is no evidence that respondent was grossly negligent during his supervision of the job.

      
      

   8. Respondent did not appear at hearing. However, prior to hearing he spoke to the city building inspector and acknowledged that the roof trusses were damaged as the result of negligence on the part of his crew. He also admitted this during the final hearing on the small claims action. At the same time, he denied that his workers had ever touched the soffits. This assertion, however, is rejected as not being credible.

      CONCLUSIONS OF LAW

      
      

   9. The Division of Administrative Hearings has jurisdiction of the subject matter and the parties hereto pursuant to Subsection 120.57(1), Florida Statutes (1989).

      
      

   10. Because respondent's license is at risk, the agency is obligated to prove the allegations in the administrative complaint by clear and convincing evidence. See, e. g., Lewis v. Department of Professional Regulation, Division of Real Estate, 529 So.2d 751 (Fla. 3rd DCA 1988).

       
       

   11. Respondent is charged with violating Subsection 489.129(1), Florida Statutes (1987) in two respects. First, he is charged with having failed to "properly supervise" the job in violation of Section 489.119, Florida Statutes (1987) thereby violating subsection 489.129(1)(j) which makes it unlawful to fail in any material respect to comply with the provisions of chapter 489. Second, he is charged with committing gross negligence, incompetence and misconduct in the practice of contracting within the meaning of subsection 489.129(1)(m). These charges will be discussed separately below.

       
       

   12. Initially, a brief comment is appropriate concerning respondent's assertion that he is not liable for the acts of his agents or employees. The law is well-settled that the qualifying contractor who procures a building permit is responsible for all work done on the project. Hunt v. Department of Professional Regulation, Construction Industry Licensing Board, 444 So.2d 997, 999 (Fla. 1st DCA 1983). Therefore, as the qualifying agent who in this case procured the building permit, respondent is liable for any lack of workmanship on the Ansman job.

       
       

   13. As to the first charge, it is alleged respondent failed to properly supervise the job within the meaning of section 489.119. The only reference to supervision within that section is found in subsection (2). There, a requirement is imposed upon a licensee who intends to engage in business as another legal entity to make application with the Board and show "that the qualifying agent is legally qualified to act for the business organization in all matters connected with its contracting business and that he has authority to supervise construction undertaken by such business organization." [Emphasis added]. Since this section does not contain a proscription against failing to supervise, the first charge must necessarily fail. 2/

       
       

   14. Respondent is next charged with gross negligence, incompetence and misconduct in the practice of contracting as proscribed by subsection 489.129(1)(m). Because gross negligence can only result from the licensee's own acts, and cannot be imputed to him from the acts of his employees, O'Connor v. Department of Professional Regulation, Construction Industry Licensing Board,

       549 So.2d 549, 553 (Fla. 2d DCA 1990), the charge of gross negligence must fail since there was no evidence of gross negligence on the part of respondent. However, by clear and convincing evidence respondent has established that respondent is guilty of incompetence and misconduct in the practice of contracting. Therefore, as to these two elements of subsection 489.129(1)(m), this charge has been sustained.

       
       

   15. Rule 21E-17.001, Florida Administrative Code, sets forth the "normal penalty ranges" to be used in disciplinary cases. As is relevant here, a first time violation of subsection 489.129(1)(m) which causes monetary or other harm to a licensee's customer calls for a penalty of a $500 to $1500 fine. In addition, rule 21E-17.002 prescribes circumstances which may be considered for

the purposes of mitigation or aggravation of penalty. As is relevant here, they include whether the customer suffered monetary damages, actual job-site violations of the building code, the severity of the offense, any potential danger or harm to a customer caused by the licensee's conduct, any physical damage to the customer, and whether the licensee has corrected the violations of the building code. Given these aggravating circumstances, a $1000 fine and suspension of respondent's license for one year is appropriate.

RECOMMENDATION

Based upon the foregoing findings of facts and conclusions of law, it is, recommended that respondent be found guilty of violating Subsection 489.129(1)(m), Florida Statutes (1987), and that he pay a $1000 fine and his license be suspended for one year.

RECOMMENDED this 16th day of December, 1991, in Tallahassee, Florida.

DONALD R. ALEXANDER

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 16th day of December, 1991.

ENDNOTES

1/ The ramifications, if any, of this licensure status is not of record. 2/ Section 489.1195, Florida Statutes (Supp. 1988) sets forth supervising

responsibilities for qualifying agents. However, respondent was not charged with violating this section, and in any event, his conduct predated the effective date of the law.

APPENDIX TO RECOMMENDED ORDER, CASE NO. 91-5227

Note - Where a finding had been partially adopted, the remainder has been rejected as being unnecessary, cumulative, subordinate, irrelevant, or not supported by the evidence.

COPIES FURNISHED:

William S. Cummins, Esquire

1940 North Monroe Street, Suite 60

Tallahassee, Florida 32399-0792

Raymond D. Simmons Route 1 Box 191

Waldo, FL 32694

Jack L. McRay, Esquire

1940 North Monroe Street, Suite 60

Tallahassee, Florida 32399-0792

Daniel O. Brien, Executive Director Construction Industry Licensing Board Post Office Box 2

Jacksonville, FL 32202

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS:

All parties have the right to submit written exceptions to this Recommended Order. All agencies allow each party at least 10 days in which to submit written exceptions. Some agencies allow a larger period within which top submit written exceptions. You should contact the agency that will issue the final order in this case concerning agency rules on the deadline for filing exceptions to this Recommended Order. Any exceptions to this Recommended Order should be filed with the agency that will issue the final order in this case.

Docket for Case No: 91-005227

Orders for Case No: 91-005227