STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

)

) DEPARTMENT OF PROFESSIONAL )

REGULATION, CONSTRUCTION )

INDUSTRY LICENSING BOARD, )

)

Petitioner, )

)

vs. ) CASE NO. 92-1494

)

LEONARD LEON LYNN, )

)

Respondent. )

)

RECOMMENDED ORDER

Upon due notice, this cause came on for formal hearing on November 24, 1992, in Jacksonville, Florida, before Ella Jane P. Davis, a duly assigned hearing officer of the Division of Administrative Hearings.

APPEARANCES

For Petitioner: G. W. Harrell, Esquire

Department of Professional Regulation 1940 North Monroe Street

Tallahassee, Florida 32399-0792

For Respondent: Leonard Leon Lynn pro se

6121 Sundew Court

Jacksonville, Florida 32244 STATEMENT OF THE ISSUE

With regard to Case No. 92-0593:

Count I: Has Respondent violated Section 489.129(1)(n) [1990] F.S. by proceeding on the "Gudzak" job without obtaining applicable local building permits and inspections?

Count II: Has Respondent failed to comply with Section 489.117(2) [1990]

F.S. and thereby violated Section 489.129(1)(j) [1990] F.S. by failing in any material respect to comply with the provisions of that section?

Count III: Has Respondent violated Section 489.129(1)(m) [1990] F.S., fraud, deceit, or gross negligence, incompetency, or misconduct in the practice of contracting by failing to provide a reasonably watertight roof on the "Gudzak" job?

With regard to Case No. 92-1494:

Count I: Has Respondent violated Section 489.129(1)(n) [1990] F.S. by proceeding on the "Rommel" job without obtaining local building permits and inspections?

Count II: Has Respondent violated Section 489.129(1)(m) [1990] F.S., fraud, deceit, or gross negligence, incompetency, or misconduct in the practice of contracting by failing to provide a reasonably tight roof on the "Rommel" job?

PRELIMINARY STATEMENT

Petitioner presented the oral testimony of Andrew Gudzak, Alma Gudzak, Arthur Roland Hold, Sr., Paul A. Rommel, and Ceceilia Rommel and had eleven exhibits admitted in evidence, some of which were multi-part composites.

Respondent presented the oral testimony of Steven Lynn and had no exhibits admitted.

The parties were given leave to file affidavits of attorneys' fees and costs with their post-hearing submittals. Petitioner, who sought a penalty geared in part to prosecution fees and costs, submitted such an affidavit. Respondent filed no affidavit but included suggestions with regard to fees and costs within his proposed recommended orders. Those suggestions have been treated as proposed findings of fact and/or proposed penalties and have been ruled upon within the appendix hereto, pursuant to Section 120.59(2) F.S.

A transcript was filed in due course, and all timely-filed proposed findings of fact have been ruled upon in the appendix to this recommended order, pursuant to Section 120.59(2) F.S.

FINDINGS OF FACT

1. Petitioner is the state agency charged, in conjunction with the Construction Industry Licensing Board, with the responsibility to prosecute Administrative Complaints pursuant to Chapters 489, 455, and 120, F.S. and the rules promulgated pursuant thereto.

   
   

2. At all times material to the Administrative Complaints, Respondent, Leonard Leon Lynn, was licensed as a certified residential contractor in the State of Florida, having been issued license number CR C048007, and was registered to do business as Five Star Construction. He was first licensed in 1989.

   
   

   [DOAH Case No. 92-0593]

3. In March, 1990, the Respondent contracted with Andrew Gudzak (Gudzak) to insulate the roof of, install a roof on, and install vinyl windows on Gudzak's screen porch. The contract price was $2,900.00.

   
   

4. The Respondent performed the Gudzak job and was paid in full per a

   $1,000.00 deposit on March 23, 1990 and a $1,900.00 final payment on April 12, 1990.

   
   

5. The Respondent stipulated that he failed to obtain the required permit for the Gudzak job in violation of the local building code, with the proviso that he was confused about where the controlling county line was located in relation to Gudzak's residence.

   
   

6. The roof the Respondent installed on Gudzak's porch began leaking following completion. Gudzak contacted the Respondent concerning the leakage and improper closure of the windows installed by the Respondent, on approximately thirty-five days from the 25th of April to late August of 1990.

   
   

7. The Respondent attempted to correct the leakage and windows numerous times without success.

   
   

8. Gudzak retained an attorney who contacted the Respondent by letter on May 22, 1990.

   
   

9. The Respondent last attempted to correct the leakage on July 16, 1990. Thereafter, Respondent refused to respond to Gudzak's requests. The leakage was never corrected.

   
   

10. The Department of Professional Regulation has accumulated $58.00 in investigation costs, $1,142.00 in legal costs, and $9.00 in current year expenses associated with Case No. 92-0593 as of the date of Petitioner's Proposed Recommended Order.

    
    

    [DOAH Case No. 92-1494]

    
    

11. In September, 1990, the Respondent contracted with Paul Rommel (Rommel) to construct a screened porch, with roof and skylights, on an existing patio. The contract price was $2,950.00.

    
    

12. The Respondent substantially performed the Rommel job by September 21, 1990 and was paid in full per checks for $1,180.00 and $1,770.00.

    
    

13. The Respondent stipulated that he failed to obtain the required permit for the Rommel job in violation of the local building code.

    
    

14. After completion of the Rommel porch, the porch roof began to leak severely, and Rommel contacted the Respondent. The Respondent attempted to correct the leaks on several occasions without success. Eventually, the Respondent quit responding to Rommel's requests to correct the severe leakage.

    
    

15. On December 4, 1990, the Respondent received a certified letter from Rommel requesting the Respondent address the problems with the roof. The Respondent did not respond to Rommel's written request.

    
    

16. On December 17, 1990, an attorney representing Rommel sent the Respondent a certified letter requesting a refund of the contract amount. The Respondent did not respond thereto, and a judgment was entered against the

    Respondent on July 30, 1991 for $2,500.00. The Respondent was present at the civil action.

    
    

17. As of the date of formal hearing, the Respondent had neither paid the aforementioned judgment nor corrected Rommel's porch.

    
    

18. The Department of Professional Regulation has accumulated $134.60 in investigation costs, $1,037.80 in legal costs, $443.26 in current year expenses and $102.00 in prior accumulated costs associated with Case No. 92-1494 as of the date of Petitioner's Proposed Recommended Order.

    
    

    CONCLUSIONS OF LAW

    
    

19. The Division of Administrative Hearings has jurisdiction over the parties and subject matter in this cause, pursuant to Section 120.57(1), F.S..

    
    

    Case No. 92-0593 (Gudzak)

    
    

20. Petitioner's Proposed Recommended Order states that "Petitioner dismisses the alleged violations of Section 489.129(1)(j) F.S. contained in Count II." Accordingly, Count II of Case No. 92-0593 is deemed dismissed.

    
    

21. As to Count I of Case No. 92-0593, the evidence is unrefuted that no permit was pulled by Respondent who had the professional duty to determine if a permit was required and to pull it. The violation of Section 489.129(1)(n) F.S. has therefore been proven clearly and convincingly.

    
    

22. As to Count III of Case No. 92-0593, it was clearly and convincingly demonstrated that Respondent failed to provide a watertight roof, was unable to stop the leakage despite many attempts and ultimately refused to attempt corrections. This constitutes gross negligence and misconduct in contracting.

    
    

    Case No. 92-1494 (Rommel)

    
    

23. As to Count I of Case No. 92-1494, the evidence is unrefuted that no permit was pulled by Respondent who had the professional duty to do so. Respondent's defense which was never fully articulated on the record under oath or by stipulation but which is set out only in his post-hearing proposals to the effect that the owner told him not to pull the permit, is not cognizable here since it was never proven. Reliance thereon also would be misplaced even if such a scenario had been proven, because Respondent, and not the owner, had the professional responsibility to pull the permit or see that it was pulled and Respondent did the work without the permit.

    
    

24. As to Count II of Case No. 92-1494, it was clearly and convincingly demonstrated that Respondent failed to stop the leakage and eventually refused to attempt further corrections. After the civil judgment against Respondent resolved the issue between Rommel and Respondent upon money damages, the Respondent had no further duty to try to make good his work. However, Respondent had that duty up to the entry of the judgment. Respondent also has failed to pay the judgment against him. The whole of this scenario constitutes gross negligence and misconduct in contracting. Cf -- new Section 489.129(1)(p) [1991] and 489.129(1)(r) [1992 Supp.] F.S., with which Respondent was not charged.

    
    

25. It is noted that Respondent has only been licensed as a contractor in Florida since 1989 and that both of these offenses occurred in 1990. Therefore,

    Respondent does not have a long history of unblemished professionalism marred only by two violations. He has a short history marred by two similar violations within one year. Petitioner also has set out persuasive aggravating causes for license revocation in its Proposed Recommended Order, as well as cause for the requested fine of $2,000, which is within the applicable guidelines of Rules

    21E-17.001 and 21E-17.002 F.A.C.

    
    

26. Petitioner also seeks recovery of its costs as set out in its affidavit and as found in Findings of Fact 10 and 18 supra. At all times material, Section 489.129(1) F.S. has provided that the penalties for the violations proven may include assessment of "costs associated with investigation and prosecution." Petitioner has provided no explanation of how "current year expenses" or "prior accumulated costs" fall into the authorized categories. Therefore, the statutorily authorized assessment is only $1,200.00 in the Gudzak case and $1,172.40 in the Rommel case.

RECOMMENDATION

Upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED

That the Florida Construction Industry Licensing Board enter a Final Order.

1. That finds Respondent guilty of violating Sections 489.129(1)(n) and 489.129(1)(m) F.S., penalizes Respondent by a fine of $1,000, and assesses

   $1,200.00 in investigation and prosecution costs in DOAH Case No. 92-0593;

   
   

2. That finds Respondent guilty of violating Sections 489.129(1)(n) and 489.129(1)(m) F.S., penalizes Respondent by a fine of $1,000, and assesses

   $1,172.40 in investigation and prosecution costs in DOAH Case No. 92-1494; and

   
   

3. That, in consideration of the cumulative nature of the two cases, revokes Respondent's license.

RECOMMENDED this 24th day of February, 1993, at Tallahassee, Florida.

ELLA JANE P. 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 24th day of February, 1993.

APPENDIX TO RECOMMENDED ORDER 92-0593, 92-1494

The following constitute specific rulings, pursuant to S120.59 (2), F.S., upon the parties' respective proposed findings of fact (PFOF)

Petitioner PFOF:

1-8 Accepted (Gudzak, DOAH Case No. 92-0593). 9-16 Accepted (Rommel, DOAH Case No. 92-1494). Respondent PFOF:

Respondent has apparently confused the case numbers herein, since he refers to "Rommel" in his submittal numbered 92-0593 and "Gudzak" in his submittal numbered 92-1494. The undersigned has assumed that Respondent intended that the specific name was intended over the DOAH Case No. and has ruled upon the two proposals in that manner. Respondent also failed to number his proposals, so they have been ruled upon by paragraph as indicated.

Gudzak proposals

Paragraph 1 Rejected as introductory.

Paragraphs 2-4 Not proven nor supported by the competent credible record evidence. The remainder is rejected as legal argument only.

Rommel proposals

Paragraph 1 Rejected as introductory.

Next sentence Accepted.

Next sentence Not proven or supported by the greater weight of the evidence. Even if proven, would not relieve Respondent of the responsibility to pull the permit.

Remainder Rejected as mere legal argument except for the admission that Respondent acquiescence to the agency's affidavit of fees for both cases. That acquiescence has been accepted but modified pursuant to the conclusions of law stated.

COPIES FURNISHED:

G. W. Harrell, Esquire

Department of Professional Regulation 1940 North Monroe Street

Tallahassee, FL 32399-0792

Leonard Leon Lynn 6121 Sundew Court

Jacksonville, FL 32244

Jack McRay, Esquire General Counsel

Department of Professional Regulation 1940 North Monroe Street

Tallahassee, FL 32399-0792

Daniel O'Brien Executive Director

Construction Industry Licensing 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 to 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: 92-000593

Orders for Case No: 92-000593