STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

PINELLAS COUNTY CONSTRUCTION ) LICENSING BOARD, )

)

Petitioner, )

)

vs. ) CASE No. 93-0545

)

JAMES FORHOLT, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice the Division of Administrative Hearings by its duly designated Hearing Officer, K. N. Ayers, held a formal hearing in the above- styled case on April 23, 1993 at Clearwater, Florida.

APPEARANCES

For Petitioner: David Sadowsky, Esquire

Assistant County Attorney

315 Court Street Clearwater, Florida 34616

For Respondent: James Forholt, pro se

9370 83rd Street North Seminole, Florida 34647

STATEMENT OF THE ISSUES

Whether Respondent violated Section 24(2)(d), (h), (j), (k), (m) and (n), Chapter 75-489, Laws of Florida, as amended, and, if so, what is an appropriate penalty.

PRELIMINARY STATEMENT

By Administrative Complaint dated December 31, 1992 the Pinellas County Construction Licensing Board, Petitioner, seeks to take disciplinary action against the license of James Forholt, Respondent, as a certified aluminum contractor. As grounds therefor, it is alleged that Respondent contracted with customer #1 to install a roofover on a mobile home and, after completing the work and being paid, the roof leaked; that Respondent contracted with customer #2 to install vinyl siding on a mobile home, and after completing the work and being paid, he did not obtain a final inspection; and that he contracted with customer #3 to install a roofover on a mobile home and, after completion of the work for which he was paid, the roof leaks. These are alleged to be violations of the Southern Standard Building Code. Additional charges involving customers #4 and #5 were dismissed at the beginning of the hearing. Thereafter,

Petitioner called four witnesses, Respondent testified in his own behalf and 13 exhibits were admitted into evidence. Proposed findings submitted by Petitioner are dealt with in the appendix hereto.

Having fully considered all evidence presented I submit the following:

FINDINGS OF FACT

1. At all times relevant hereto James Forholt was licensed as an aluminum contractor by the Pinellas County Construction Licensing Board, having been issued license #C-2984. He was the qualifying contractor for City Wide Mobile Home Services, Inc.

   
   

2. On June 28, 1989 Respondent contracted with customer #1 to install an aluminum roofover on the customer's mobile home (Exhibit 4). This work was completed and Respondent was paid in full. In July 1989 the work was inspected by a city building inspector and accepted.

   
   

3. Later some leaks were experienced; Respondent was called and a repairman was sent to the job site. These leaks ceased but after heavy rains in 1990-91 additional leaks appeared and were not corrected.

   
   

4. Customer #1 contracted with another aluminum contractor who removed the roofover installed by Respondent and replaced it with a new roofover at a cost to customer #1 of $3,356.00.

   
   

5. Customer #3 contracted with City Wide Mobile Services, Inc. on December 30, 1986 to install a Royal roofover on customer's mobile home. This work was paid for by customer on December 30, 1986 and the work was completed approximately January 13, 1987.

   
   

6. Customer #3 spent the winters in this mobile home and the summers elsewhere. Upon returning to the mobile home in October 1990 some water stains were observed inside the mobile home's ceiling, indicating the roof was leaking. City Wide was called and a repairman was sent out. He sprayed Kilz on the water spots and did some caulking on the roof.

   
   

7. In the fall of 1991 upon returning to the mobile home customer #3 observed additional water stains on the ceiling and called City Wide. Two repairmen arrived, replaced vents and departed. The following day customer #3 turned on the heat and a terrible odor filled the mobile home. Respondent was called, he came over and advised customer #3 that the roof was five years old and he was no longer responsible for the roof.

   
   

8. Respondent contracted with customer #2 to install vinyl siding on his mobile home. The work was satisfactorily completed but Respondent did not obtain a final inspection. After this administrative complaint was filed Respondent obtained a satisfactory final inspection on that job on January 14, 1992.

   
   

9. The permit for the job for customer #2 was pulled June 13, 1992 by Respondent. Although the building official for the City of Largo, where the permit was issued, testified the permit was good for only three months, the face of the permit (Exhibit 11) states, "PERMITS ARE NULL AND VOID IF THE PROJECT IS ABANDONED FOR A PERIOD OF THREE (3) MONTHS OR MORE..."

10. Respondent testified without contradiction that the contract form he used with the complaining parties only guarantees that the roofovers would be properly installed and the warranty on the roof was the manufacturer's warranty which he supplied to these customers.

    
    

11. Respondent further testified that the caulking around the screws which secured the roofovers to the mobile homes would last only about two years in the Florida sunshine. He offered a continuous maintenance contract which the complaining parties declined to take.

    
    

12. There was some evidence, but inconclusive, that hurricane Elena struck the area after the roofover was installed for customer #3. However, no evidence was submitted that the roof was damaged by this hurricane.

    
    

13. Both of these roofovers were inspected by the City of Largo building inspectors and were signed off as satisfactory. No evidence was presented that these roofovers were improperly installed by Respondent or the workmanship used in these installations was defective.

    
    

    CONCLUSIONS OF LAW

    
    

14. The Division of Administrative Hearings has jurisdiction over the parties to, and the subject matter of, these proceedings.

    
    

15. Section 24(2) Chapter 75-489, Laws of Florida, as amended, provides the following acts which Respondent is here charged with violating constitute cause for disciplinary action:

    
    

    (d) Willfully or deliberately disregarding and violating the applicable building codes or laws of the state, this board, or any municipality or county of this state.

    * * *

    (h) Committing mismanagement or misconduct in the practice of contracting that causes financial harm to a customer. Financial mismanagement or misconduct occurs when:

    1. Valid liens have been recorded against the property of a contractor's customer for

       supplies or services ordered by the contractor for the customer's job; the contractor has received funds from the customer to pay for the supplies or services; and, the contractor has not had the liens removed from the property by payment or by bond, within 30 days after the date of such liens.

    2. The contractor has abandoned a customer's job and the percentage of completion is less than the percentage of the total contract price paid to the contractor at the time of abandonment, unless the contractor is entitled to retain such funds under the terms of the contract or refunds the excess funds within 30 days after the date the job is abandoned.

    3. The contractor's job has been completed, and it is shown that the customer has had to pay more for the contract job than the

    original contract price, as adjusted for subsequent change orders, unless such increase in cost was the result of circumstances beyond the control of the contractor, was the result of circumstances caused by the customer, or was otherwise permitted by the terms of the contract between the customer and the contractor.

    * * *

    (k) Abandoning a construction project in which the contractor is engaged or under contract as a contractor. A project is to be considered abandoned after 90 days if the contractor terminates the project without notification to the prospective owner and without just cause.

    * * *

    1. Being found guilty of fraud or deceit or gross negligence, incompetency, or misconduct in the practice of contracting.

    2. Proceeding on any job without obtaining applicable local building department permits and inspections.

    
    

16. Section 706.7 Standard Building Code (Exhibit 7) provides:

    
    

    Roof coverings shall provide weather protection for the building at the roof.

    
    

17. In these proceedings Petitioner has the burden of proving the allegations by clear and convincing evidence. Ferris v. Turlington, 510 So.2d 292 (Fla. 1987).

    
    

18. Not a scintilla of evidence was presented that Respondent violated subsections (h) or (k) above cited.

    
    

19. The only evidence supporting any of the charges here preferred is that the roof leaked on two mobile homes some time after Respondent installed roofovers on these mobile homes and that Respondent did not promptly obtain a final inspection after applying vinyl siding to another mobile home.

    
    

20. No evidence was submitted which would sustain a finding that Respondent is guilty of fraud or deceit or gross negligence, incompetency or misconduct in the practice of contracting so as to violate subsection (m) above cited. While the customers testified that Respondent guaranteed these roofs for

    25 years, Respondent adamantly denies that he ever provided other than the manufacturer's warranty to any customer. His contract provided he would install the roofovers "in a Workmanship Like Manner." No credible evidence was submitted that these roofovers were improperly installed.

    
    

21. No was evidence presented that Respondent failed to obtain building permits and inspections other than the "late" inspection for customer #2. Accordingly, the evidence presented will not support a finding that Respondent violated subsection (n) above cited. The administrative complaint alleged that Respondent "at no time obtained a final inspection." Petitioner's own witness testified that a final inspection was conducted and the job was signed off, albeit later than it should have been.

22. The gravamen of the charges here presented is that some time after installing roofovers on two mobile homes these roofs leaked. The cause of these leaks was not shown at the hearing. Accordingly, insufficient evidence was presented to support a finding that Respondent willfully or deliberately disregarded and violated Section 706.7 Standard Building Code in the installation of the two roofovers which resulted in these coverings not providing weather protection. In other words, the evidence presented will not support a finding that Respondent's negligence or willful disregard of the codes resulted in the complaining witnesses' roofs leaking.

RECOMMENDATION

It is recommended that the charges against James Forholt contained in Administrative Complaint dated December 31, 1992 be dismissed.

DONE and ORDERED this 13th day of May, 1993, in Tallahassee, Leon County, Florida.

K. N. AYERS 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 13th day of May, 1993.

APPENDIX

Proposed findings submitted by Petitioner are accepted except as noted below:

3. Accepted generally as the testimony of Palios; however, subsections thereof listed below are rejected as not supported by credible evidence.

a. Rejected. See HO #10.

c. Rejected. Several months transpired between the installation of the roofover and observance of water stains.

1. Respondent did some caulking on the roof after complaint was made; however, the roof subsequently leaked.

2. Rejected. The reasons given by this witness for wanting the roofover installed was to remove the need for her husband to recaulk or repair the roof each year.

5. Accepted generally as the testimony of Hensley; however, subsections thereof listed below are rejected as not supported by credible evidence.

a. Rejected. See HO #10.

1. Rejected that the leaks resulted solely from Respondent's installation of the roofover.

2. Rejected.

7.c. Rejected. See HO #9.

COPIES FURNISHED:

David Sadowsky, Esquire Assistant County Attorney

315 Court Street Clearwater, Florida 34616

James Forholt

9370 83rd Street North Seminole, Florida 34647

William J. Owens/Executive Director Pinellas County Construction

Licensing Board

11701 Belcher Road - Suite 102

Largo, Florida 34643 5116

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: 93-000545

Orders for Case No: 93-000545