STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

PINELLAS COUNTY CONSTRUCTION ) LICENSING BOARD, )

)

Petitioner, )

)

vs. ) Case No. 98-5187

)

BRIAN D. LEGATE, )

)

Respondent. )

)

RECOMMENDED ORDER

On February 23, 1999, a formal administrative hearing was held in this case in Clearwater, Florida, before J. Lawrence Johnston, Administrative Law Judge, Division of Administrative Hearings.

APPEARANCES

For Petitioner: Williams Owens, Executive Director

Pinellas County Construction Licensing Board

11701 Belcher Road, Suite 102

Largo, Florida 33773-5116

For Respondent: Brian Legate

5901 40th Avenue, North

St. Petersburg, Florida 33709 STATEMENT OF THE ISSUES

The issues in this case are whether the Respondent, Brian D. Legate, should be disciplined on the charges in the Administrative Complaint, PCCLB Complaint No. C98-556.

Specifically, the Administrative Complaint charged violations of Section 24(2)(d), (j), (m), and (n) of Chapter 75-489, Laws of

Florida (1975), as amended, by: Count I - failure to obtain a building permit before beginning roofing work, contrary to the requirements of Section 104 of the Standard Building Code; Count II - covering rotted roof framing and building a roof that leaked, contrary to the requirements of Section 1509.1.2.1 of the Standard Building Code; and Count III - committing gross negligence, incompetence, or misconduct in the practice of contracting.

PRELIMINARY STATEMENT

When served with the Administrative Complaint, Legate disputed the charges and asked for a formal administrative proceeding. The Petitioner, the Pinellas County Construction Licensing Board (PCCLB) referred the matter to the Division of Administrative Hearings (DOAH) on November 23, 1998, and it was set for final hearing on February 23, 1999.

At final hearing, the PCCLB called three witnesses: (1) Legate as an adverse party witness; (2) a City of St. Petersburg building inspector; and (3) a private roof consultant; the PCCLB also had Petitioner's Exhibits 1 through 9 admitted in evidence. Legate called one witness, his job foreman.

After the evidence was presented, the parties were given ten days in which to file proposed recommended orders. Neither filed a proposed recommended order, but the PCCLB suggested that Legate be required to pay $2,000 as restitution.

FINDINGS OF FACT

1. The Respondent, Brian D. Legate, is a licensed roofing contractor. He holds license C-4676 (RC0061241).

2. On approximately March 16, 1998, Mr. and Mrs. Richard Shutt requested an estimate from Legate for the repair of a leaking roof at their house at 7127 Third Avenue South,

   St. Petersburg, Florida. The leaking portion of the roof was a flat, built-up roof that was over the single-story living room of the house and adjacent to a second story bedroom; the other three sides of the perimeter of the leaking roof consisted of capped parapet walls. The roof and tile covered the flat portion of the roof and extended approximately ten inches up the inside of the parapet walls.

3. The Shutts did not testify. Legate testified that the Shutts could not afford to completely rebuild and seal the parapets, re-roof, and re-tile. Instead, the Shutts wanted Legate to tear off the old roof down to the wood decking and re- roof to try to stop the roof leak; the Shutts planned to have someone else rebuild and seal the parapets and finish the roof with new tiles in about six months.

4. Legate recognized that the Shutts' plan was not ideal; it would be difficult to maintain a watertight roof system until the parapets were rebuilt and sealed and the tiles replaced. Under the Shutts' plan, Legate would have to tack the new roof to the lower part of the parapet walls as best he could and tuck the upper edge of the new roof under the drip edge on the parapet

   wall to secure it temporarily until the parapet walls were rebuilt and sealed and the new tile installed. But Legate agreed to cooperate with the Shutts and give them an estimate for the work requested.

5. Legate also recognized that it would have been best to install new flashing between the new roof and the parapet walls above the roof. The old metalwork serving as flashing on the existing roof system actually was a metal roof drip edge that was being misused as flashing. Legate recommended new flashing, but the Shutts declined because it would cost an additional $1,500 that they could not afford.

6. On or about March 16, 1998, Legate gave the Shutts an estimate, without any new metalwork, for $4,000, plus $950 for new roof drains. Legate planned to install the roof drain bowls somewhat higher than the top of the new roof so that they would be flush with the ceramic tile when eventually installed over his roof.

7. The Shutts accepted Legate's estimate for the roof work, a contract was signed, and the Shutts paid an inital $1,200 installment on March 19, 1998. Legate began work on the Shutts' roof approximately two weeks later.

8. Legate also has a general contractor license, and he also made a proposal to repair wood and plaster inside the Shutts' house that had been damaged over the years by water leaking from the roof above. The Shutts could not afford this

   proposal and declined.

   
   

9. Legate purposely delayed obtaining a building permit to give the Shutts more time to have the parapet walls rebuilt and the new tile installed under the six-month life of the building permit.

10. As Legate's work proceeding, the Shutts paid an additional $1,200 on April 9, 1998, and another $2,000 on May 4, 1998. At approximately the time Legate invoiced the Shutts for the balance due under their contract, a dispute arose regarding the appearance of the roof drain bowls Legate installed. Legate agreed to remove the offending drain bowl, and order and install a type more to the Shutts' liking.

11. On or about June 2, 1998, Legate applied for a building permit. He also requested that they file the notice of commencement so that he could call for a building inspection. At some point (the evidence is not clear when), Legate also wrote the Shutts by certified mail and enclosed a completed notice of commencement for them to sign and file.

12. By letter dated June 5, 1998, an attorney representing the Shutts demanded that Legate not contact the Shutts again and not do any further work on their property because the work done was "inferior and was not of the type desired." Legate complied with the attorney's demand. He did not know exactly what the problem was but assumed it had something to do with the drain bowls.

13. The Shutts did not file a notice of commencement until approximately June 24, 1998. On or about July 6, 1998, someone other than Legate (the evidence was not clear who, but probably the Shutts or their attorney) called for a building inspection of Legate's work. Legate did not know either that the notice of commencement had been filed or that someone had called for an inspection. For that reason, and also because he had been ordered off the job, Legate was not there on July 7, 1998, when a building inspector from the City of St. Petersburg inspected the roof.

14. The Shutts invited the inspector inside the house where he inspected interior water damage and was able to inspect water- damaged wood laths (used to secure ceiling plaster), roof joists and framing beneath one of the roof drains from the underside. The inspector found the roof to be leaking and covering rotted roof framing. He was concerned that it might be dangerous to attempt to place the additional weight of ceramic tile over the roof, especially for the intended use as additional living space (an outdoor, second-story patio.) The inspector determined that it would be necessary to have an on-site inspection with the contractor and a copy of the roofing manufacturer's specifications for the type of roof system applied before final inspection.

15. The building inspector did not contact Legate directly to inform him of the need for an on-site inspection; instead, he

    left a notice on the building permit at the premises. The inspector was unaware that Legate had been ordered off the premises and would not see the notice. Legate was not aware that an inspection had taken place and did not contact the building inspector.

16. Not having heard from Legate, the building inspector returned to the premises on July 13, 1998, for final inspection without Legate. He saw essentially the same conditions as before and disapproved the work. Legate also was unaware of this second inspection. He never inquired with the City building department as to whether a notice of commencement had been filed or whether the roof had been inspected.

17. On September 15, 1998, the Shutts had the roof inspected by an independent roofing consultant. The independent inspection confirmed the building inspector's findings and added that damage caused by the roof leaks in the meantime had caused additional damage to the roof itself, as well as to the roof substrate (decking) and framing, to the point that it could have been dangerous to attempt to place the additional weight of ceramic tile over the roof, especially for the intended use as an outdoor, second-story patio.

18. The independent roof consultant testified that water was leaking where the metal drip edge had pulled away from the parapets, and there was a gap between the top of the roof material and parapets. He also testified that the drip edges

    were old and an improper choice for use as flashing where the roof material met the parapets. However, he could not testify as to when the drip edge pulled away from the parapets and apparently was not aware that, for financial reasons, the Shutts had rejected Legate's recommendation to install new metal flashing.

19. The independent roof consultant testified that water also was leaking at the roof drain bowls because they were set too high, causing improper ponding on the roof in the vicinity of the drain bowls. He also testified that, even if the ceramic tile had been installed promptly after Legate's work, the roof drain bowls still should have been flush to the waterproof roofing material, not to the ceramic tile going in over it. However, Legate and his foreman testified that Legate's plan was acceptable and would have made the finished roof watertight. The evidence was not sufficient to prove Legate incorrect.

20. Legate and his workers replaced some rotted roof decking before replacing the roof. They testified that they did not see any more rotted roof framing or joists. While some additional water damage inside the house was evident on September 15, 1998, including rotted ceiling wood lath and joists, it was not clear from the evidence how much was visible or evident to Legate and his workers from their vantage point working on the roof. It is clear, however, that Legate gave the Shutts an estimate for the repair of interior damage, to the

    extent visible, and that the Shutts declined the repairs for financial reasons.

21. There was no evidence that the Shutts ever complained to Legate that the new roof was leaking. The last Legate heard from the Shutts was their attorney's letter demanding that he not contact the Shutts and not do any more work on the roof. Legate also was unaware of the building inspections and the independent inspection. Legate testified without contradiction that, if he had been aware of the leaks or had been asked, he certainly would have returned to stop the leaks, at least by temporary means, until the additional work contemplated by the Shutts could be done.

22. Section 104.1.1 of the Standard Building Code (1997) requires a contractor to obtain the required building permit before beginning work. There was testimony that the City of St. Petersburg allows builders to "call in" an application for a building permit (by telephone), begin work, and actually obtain the permit within a day or two. But such a procedure would not allow for a delay of months.

23. Section 1503.1.2.1 of the Standard Building Code (1997) requires that roof coverings "provide weather protection for the building at the roof." (The reference to Section 1509 in the Administrative Complaint apparently was a typographical error.)

24. PCCLB has published "Guidelines for Disciplinary Action," which state that $750 is the "typical" penalty for the

    first "major" infraction and that $300 is the "typical" penalty for the first "minor" infraction. "Major" and "minor" infractions are not defined. The Guidelines also provide that the PCCLB shall consider aggravating and mitigating factors and may take any of the following actions: (1) suspension for a time certain (with possible permission to complete any uncompleted contracts); (2) revocation; or (3) an administrative fine not to exceed $1,000 per count.

    CONCLUSIONS OF LAW

    
    

25. Under Section 12(6) of Chapter 75-489, Laws of Florida (1975), as amended, the Pinellas County Construction Licensing Board (the Board) "is designated an 'agency' as defined in section 120.52(1)(c), Florida Statutes, for purposes of utilizing the Division of Administrative Hearings of the Department of Administration." Because of this law, the Division of Administrative Hearings has jurisdiction and is required to hold hearings in cases referred by the Board.

    
    

26. Counts I and II of the Administrative Complaint in this case charged Legate with violating building code requirements, and Count III charged him with gross negligence, incompetency, or misconduct in the practice of contracting.

27. Section 24 of Chapter 75-489, Laws of Florida (1975), as amended, provides in pertinent part:

    1. On its own motion or the verified complaint of any person, the board may

       investigate the action of any contractor certified or registered under this part

       . . . Where no local board exists, or when such local board waives its jurisdiction, the board shall take jurisdiction. The Board may take appropriate disciplinary action if the contractor is found to be guilty of or has committed any one of the acts or omissions constituting cause for disciplinary action set out herein or adopted as rules or regulations by the board.

    2. The following acts constitute cause for disciplinary action:

       * * *

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

       * * *

       (j) Failing [in] any material respect to comply with the provisions of this part.

       * * *

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

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

28. In pertinent part, Section 24(6) of Chapter 75-489, Laws of Florida (1975), as amended, provides that upon proof of violations listed in (2):

    The board is authorized to take the following disciplinary action:

    1. Suspend the certificate holder or registrant from all operations as a contractor during the period fixed by the board but the board may permit the certificate holder or registrant to complete any contracts then uncompleted.

    2. Revoke a certificate or registration.

    3. Impose an administrative fine or

       penalty not to exceed $1,000.00 (which shall be recoverable by the board only in an action at law).

    4. Require restitution and impose reasonable investigative and legal costs.

    
    

29. It is concluded that the facts of this case support the conclusion that Legate violated Section 24(2)(d) and (j) by "[w]illfully or deliberately disregarding and violating the applicable building codes" when he failed to obtain a building permit until months after beginning work on the Shutts' roof. Chapter 75-489, Laws of Florida (1975), as amended.

30. It was not proven that Legate "willfully and deliberately" covered rotted roof framing. The evidence did not establish that Legate and his workers saw or should have seen additional rotted roof framing and joists during installation of the new roof.

31. It was not proven that Legate was guilty of gross negligence, incompetence, or misconduct. To the contrary, the evidence was that Legate attempted to do the work the Shutts could afford in the manner in which they wanted to proceed. When problems occurred as result, neither the Shutts nor anyone else on their behalf ever notified Legate or asked him to make repairs. To the contrary, their attorney ordered Legate off the job.

32. As found, the Board has published "Guidelines for Disciplinary Action." The validity of the Guidelines has not been challenged under Section 120.56, Florida Statutes (1997),

    and it is presumed that the Guidelines have been promulgated under the requirements of Section 29 of Chapter 75-489, Laws of Florida (1975), as amended, and Section 120.54, Florida Statutes (Supp. 1998). Cf. Section 12(5)-(6) of Chapter 75-489, Laws of Florida (1975), as amended (defining PCCLB as an "agency" and requiring rules to be promulgated "in accordance with Chapter 120, Florida Statutes.")

33. As found, under the Guidelines, a $300 fine would be the "typical" penalty for the first "minor" infraction, and a

    $750 fine would be the "typical" penalty for the first "major" infraction. The Guidelines do not define "major" and "minor" infractions. It is concluded that Legate's infraction should be considered "minor."

34. Having concluded that Legate's infraction should be considered "minor," it is concluded that application of the aggravating and mitigating factors do not make out a compelling case for deviating from the "typical" penalty.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions of Law, it is

RECOMMENDED that the Pinellas County Construction Licensing Board enter a final order finding the Respondent, Brian D. Legate, guilty under Count I, fining him $300 under Count I, and dismissing Counts II and III of the Administrative Complaint.

DONE AND ENTERED this 25th day of March, 1999, in

Tallahassee, Leon County, Florida.

J. LAWRENCE JOHNSTON Administrative Law Judge

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

(850) 488-9675 SUNCOM 278-9675

Fax Filing (850) 921-6847 www.doah.state.fl.us

Filed with the Clerk of the Division of Administrative Hearings this 25th day of March, 1999.

COPIES FURNISHED:

Williams Owens, Executive Director Pinellas County Construction

Licensing Board

11701 Belcher Road, Suite 102

Largo, Florida 33773-5116

Brian Legate

5901 40th Avenue, North

St. Petersburg, Florida 33709

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within 15 days from the date of 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: 98-005187

Orders for Case No: 98-005187