STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was held in these cases on April 19, 2000 at West Palm Beach, Florida, before Susan B. Kirkland, a designated Administrative Law Judge of the Division of Administrative Hearings.

APPEARANCES

For Petitioner: Theodore R. Gay, Esquire

Department of Business and Professional Regulation

401 Northwest Second Avenue Suite N-607

Miami Beach, Florida 33128

For Respondent: Ronald Lee Frazier, pro se

1006 Southwest Sultan Drive Port St. Lucie, Florida 34983

STATEMENT OF THE ISSUES

Whether Respondent violated Subsection 489.129(1)(j), Florida Statutes (1997), and Subsections 489.129(1)(n) and (o), Florida Statutes (1995).

PRELIMINARY STATEMENT

On April 4, 1998, Petitioner, Department of Business and Professional Regulation, Construction Industry Licensing Board (Department), filed a one-count administrative complaint against Respondent, Ronald Lee Frazier (Frazier), alleging that Frazier violated Subsection 489.129(1)(r), Florida Statutes (1997), and a three-count administrative complaint, alleging that Frazier violated Subsections 489.129(1)(d),(p), and (n), Florida Statutes (1995). Frazier requested an administrative hearing, and the cases were forwarded to the Division of Administrative Hearings for assignment to an administrative law judge. The cases were assigned Case Nos. 98-5212 and 98-5213, respectively. The cases were consolidated for final hearing. On February 1, 1999, the Department filed a Motion to Relinquish Jurisdiction, stating that the parties had reached a settlement. The motion was granted, the files of the Division of Administrative Hearings were closed, and jurisdiction was relinquished to the Department. Apparently, the parties were unable to finalize their proposed settlement.

On April 29, 1999, the Department filed a three-count amended administrative complaint, alleging that Frazier violated Subsections 489.129(1)(k) and (n), Florida Statutes (1995). This amended administrative complaint involved the same project as the administrative complaint in Case No. 98-5213. The case was forwarded to the Division of Administrative Hearings for

assignment to an administrative law judge. The case was reopened as Case No. 99-2186.

On July 28, 1998, the Department filed a three-count administrative complaint against Frazier, alleging that he violated Subsection 489.129(1)(r),Florida Statutes (1997), and Subsections 489.129(1)(n) and (o), Florida Statutes (1995). The case was forwarded to the Division of Administrative Hearings on August 23, 1999, for assignment to an administrative law judge. The case was assigned Case No. 99-3573.

By order dated September 24, 1999, Case Nos. 99-2186 and 99-3573 were consolidated for final hearing.

On October 1, 1999, the Department filed a four-count amended administrative complaint against Frazier, alleging that Frazier violated Subsections 489.129(1)(k) and (h)2, Florida Statutes (Supp. 1996), and Subsections 489.129(1)(j) and (r), Florida Statutes (1997). This amended administrative complaint involved the same project as the administrative complaint in Case No. 98-5212. By letter dated November 24, 1999, the Department requested the Division of Administrative Hearings to reopen Case No. 98-5212. Because Case Nos. 98-5212 and 98-5213 had been consolidated, Case No. 98-5213 was reopened along with Case No.

98-5212. For purposes of this proceeding, Case Nos. 98-5213 and 99-2186 are treated as one case.

Case Nos. 98-5212, 98-5213, 99-2186, and 99-3573 were

consolidated for final hearing, which was scheduled for

January 12, 2000. On January 3, 2000, Respondent filed a Motion for Continuance, alleging that he was physically incapacitated and could not attend the final hearing. The final hearing was rescheduled for February 11, 2000. On February 10, 2000, Respondent requested another continuance, which was granted. The case was set for final hearing on April 19, 2000, and Respondent was given leave to participate by telephone.

At the commencement of the final hearing at 9 a.m., Respondent, participating by telephone, advised that he had filed a petition for bankruptcy and argued that all counts in the cases were automatically stayed pursuant to 11 U.S.C. Section 362(a).

A recess was taken to consider the arguments of Respondent and counsel for Petitioner. Respondent was advised to call back at

1 p.m., at which time a ruling would be made on his motion for stay, and was advised that the final hearing would be held at that time for any counts which were not stayed. Respondent failed to call back and participate in the final hearing. It was ordered that Counts I, II, and IV of Case No. 98-5212 were stayed and Count III was to be heard. Counts I and II in Case Numbers 98-5313 and 99-2186 were stayed, and Count III was to be heard. Count I in Case No. 99-3573 was stayed, and Counts II and III were to be heard.

At the final hearing, Petitioner called Thad Clark, John Ward, and Leslie Knopf as its witnesses. Petitioner's

Exhibits 1-18 and 20-21 were admitted in evidence. Respondent presented no witnesses and no exhibits.

The parties were to file their proposed recommended orders within ten days of the filing of the Transcript, which was filed on May 10, 2000. On May 17, 2000, Petitioner filed its proposed recommended order along with Petitioner's Motion to Postpone Deadline for Filing Proposed Recommended Orders, stating that Petitioner had filed a motion for relief from stay with the bankruptcy court and was awaiting a ruling. Respondent filed his proposed recommended order on May 25, 2000.

On June 12, 2000, Petitioner filed a Request for Leave to File Revised Proposed Recommended Orders until after the bankruptcy court had ruled on Petitioner's motion for relief from stay. On June 28, 2000, Petitioner filed a Status Report, stating that the bankruptcy court would rule on Petitioner's Motion on July 18, 2000. On July 3, 2000, an order was entered placing the case in abeyance pending the ruling by the bankruptcy court. On July 20, 2000, Petitioner filed Petitioner's Status Report and Motion to End Abatement and to Allow the Filing of Revised Proposed Recommended Order, inclosing a copy of the Order Approving Stipulation, Granting in Part Motion for Relief from Stay and Allowing Claims entered by United States Bankruptcy Judge Steven H. Friedman on July 18, 2000, in In Re Ronald L. Frazier, Case No. 00-31417-BKC-SHF, United States Bankruptcy Court of the Southern District of Florida. The order provided:

1. Stay relief is GRANTED in part to the extent necessary for the Department and the Construction Industry Licensing Board ('CILB') to proceed in the following pending administrative matters to permit application by the Andersons and the Haverlys for compensation from the Construction Industry Recovery Fund ('CIRF'):

   1. Count I of DBPR Case No.

      97-14814/DOAH Case Nos. 98-5213 & 99-2186.

   2. Count I of DBPR Case No. 98-11727/DOAH Case No. 99-3573.

2. The relief from stay granted above in paragraph 4 of this Order includes:

   1. All proceedings and findings necessary to withdraw the reference of the described Counts from the Florida Division of Administrative Hearings and to render final agency action requiring the Debtor to make restitution to these claimants in the amounts of the allowed claims.

   2. All proceedings necessary to process the CIRF applications by the Andersons and by the Haverlys for the amounts of the allowed claims.

3. The stay relief specified above in paragraphs 4 and 5 does not extend:

   1. To allow the automatic suspension of the Debtor's certified roofing contractor license pursuant to [Section] 489.143(7), Florida Statutes (1999), in the event the CIRF pays any claim by the Andersons or the Haverlys.

   2. To imposing discipline for the statutory violations alleged, in each Count I of respective cases described in paragraph 4 of this Order.

* * *

1. Stay relief is DENIED for the following administrative counts which were stayed by the Administrative Law Judge:

   1. Count II, DBPR Case No. 97- 14814/DOAH Case Nos. 98-5213 & 99-2186.

   2. Counts I, II, & IV, DBPR Case 97- 21341/DOAH Case No. 98-5212.

2. This Order is without prejudice to the rights of the Department, the CLIB, or the Debtor under 11 U.S.C. [Section]362(b)(4).

On July 31, 2000, an Order Allowing the Filing of Revised Proposed Recommended Orders was entered, allowing the parties to file proposed recommended orders on or before August 15, 2000.

On August 15, 2000, Petitioner filed its Revised Proposed Recommended Order, a Motion for Authorization to File Proposed Recommended Order Exceeding 40 Pages in Length, and a Motion for Relinquishment of Jurisdiction (As to Two Counts Only). The motions were granted by orders dated August 16 and August 28, 2000, respectively.

In its proposed recommended order, Petitioner again requested relief from the stay in the following counts be granted: Counts II and IV in Case No. 98-5212, and Count II in Case Nos. 98-5313 and 99-2186. The relief requested was denied by order dated August 29, 2000.

FINDINGS OF FACT

1. At all times material to this proceeding, Frazier was licensed by the Department as a certified roofing contractor, having been issued license number CC CO56955 as Ronald Lee Frazier, d/b/a Frazier Urethane 4 No Leak.

2. On or about November 24, 1995, Frazier, contracted with Victor and Janie Anderson to remove and replace the roof of the Anderson's home at 433 111th Street, Marathon, Florida, for

   $4,657.25.

   
   

3. The Andersons paid the full contract price to Frazier in two increments. On or about November 24, 1995, they paid

   $2,328.62, and on or about January 25, 1996, they paid

   
   

   $2,328.63.

   
   

4. In January 1996, Frazier removed and replaced the Anderson's roof, but Frazier applied the new roofing material without first installing a base sheet or moisture barrier. No evidence was presented on the specific manufacturer's specification for the product installed by Frazier; however, the evidence did establish that typical manufacturers' specifications for products such as urethane require the installation of a base sheet before such products are applied. The Monroe County Building Code does require that self-adhesive roofs such as the one installed by Frazier must have a one ply ASTM D226 type II anchor sheet with a four-inch headlap. In other words, the roof should have a base sheet of 30-pound felt before the urethane is applied. The base sheet or moisture barrier helps keep water off the roof, and it also facilitates removal and replacement of the roof.

5. Failure to install the base sheet contributed to the development of roof leaks which the Andersons began noticing approximately 17 months after the work was done, a much shorter time than the normal life expectancy for the urethane roof materials that Frazier used. Frazier's failure to install a base sheet on the Andersons' roof constitutes incompetency in the practice of contracting.

6. The only way to correct Frazier's work on the Anderson's roof is to remove the roof installed by Frazier and install a new roof in a proper manner.

7. The Andersons began noticing leaks in the roof in June 1997. They notified Frazier by telephone and by letters. Frazier and his employees inspected the Anderson's roof and agreed to perform work to stop the leaks. In September 1997,

   Frazier went to the Anderson's home and began attempting to work on the roof. Monroe County roofing inspector Al Forrest met with Frazier that day at the Anderson's home and discussed

   the work that needed to be done. Frazier agreed to correct the deficiencies in the roof; however, Frazier left that day without completing the work and never returned to perform further work.

8. On or about December 1, 1995, Vivian Haverly contracted with Frazier to repair the leaky roof on her home at 1711 Avalon Avenue, Ft. Pierce, Florida. Frazier was to install a new urethane roof on Ms. Haverly's house. Among other things, the contract called for Frazier to "raise the A/C unit on stand as per code."

9. The contract price was $5,039.00. Pursuant to the contract, Ms. Haverly paid Frazier $1,039.00 on December 1, 1995, and $3,900 on January 19, 1996.

10. The Southern Building Code Congress International (SBCCI) has been adopted as the building code by all counties in Florida except for Dade and Broward Counties. Section 1509.1.2

    of the SBCCI provides that "[r]oof coverings shall provide weather protection for the building at the roof."

11. Frazier's crew worked on Ms. Haverly's roof but never fixed the leaks. The leaks worsened, causing damage in the interior of Ms. Haverly's house. Frazier failed to raise the roof-mounted air conditioning equipment and sprayed urethane on the air conditioning unit, damaging it to the point that the air conditioner became inoperable and had to be replaced at a cost of

    $2,700. Frazier did not spray urethane on the portion of the roof below the air conditioning unit as he should have done. Ms. Haverly had to have another company repair her roof.

12. On or about April 18, 1997, John Ward entered into a contract with Frazier as Frazier Urethane 4 No Leak to repair the roof of a two-story building in Marathon, Florida, owned by Virginia Ward and managed for her by her son John Ward. Frazier was to apply a urethane coating to the roof and fix roof leaks for $4,200.

13. The Department incurred costs for the investigation and prosecution of Case Nos. 98-5213 and 99-2186 in the amount of

    $1,219.18.

    
    

14. The Department incurred costs for the investigation and prosecution of Case No. 99-3573 in the amount of $244.65.

    CONCLUSIONS OF LAW

    
    

15. The Division of Administrative Hearings has jurisdiction over the parties to and the subject matter of this proceeding. Section 120.57(1), Florida Statutes.

16. In Count III of Case No. 98-5212, Petitioner alleged that Respondent violated Subsection 489.129(1)(j), Florida Statutes (1997), by violating Section 489.119(2), Florida Statutes, which provides:

    (2) If the applicant proposes to engage in contracting as a business organization, including any partnership, corporation, business trust, or other legal entity, or in any name other than the applicant's legal name or a fictitious name where the applicant is doing business as a sole proprietorship, the business organization must apply for a certificate of authority through a qualifying agent and under the fictitious name, if any.

17. The evidence as it relates to Case No. 98-5212 does not establish the allegations in Count III. In its Revised Proposed Recommended Order, Petitioner concedes that it has failed to establish that Respondent violated Sections 489.119(2) and 489.129(1)(j), Florida Statutes, as set forth in Count III of Case No. 98-5212.

18. In Count III of Case Nos. 99-2186 and 98-5213 and Count II of Case No. 99-3573, Petitioner alleged that Respondent violated Subsection 489.129(1)(n), Florida Statues (1995), which provides that Petitioner may take disciplinary action when a certificate holder or registrant is guilty of incompetency or misconduct in the practice of contracting.

19. In Case Nos. 99-2186 and 98-5213, Petitioner alleges that Respondent failed to install the roof on the Anderson's home in accordance with the Monroe County Building Code and the manufacturer's specifications by failing to install a base sheet or moisture barrier before applying the urethane to the roof. Failure to apply a base sheet is not in compliance with typical manufacturers' specifications for such products and is not in compliance with the Monroe County Building Code. Thus, Petitioner has established by clear and convincing evidence that Respondent is guilty of violating Subsection 489.129(1)(n), Florida Statutes (1995), in Count III of Case Nos. 98-5213 and

    99-2186.

    
    

20. In Case No. 99-3573, Frazier did not fix the leaks in Ms. Haverly's roof, did not raise the air conditioning unit as required by contract, and did not repair the leaks on the roof so that the roof would provide weather protection for the Haverly home. Petitioner has established by clear and convincing evidence that Respondent violated Subsection 489.129(1)(n), Florida Statutes (1995), as set forth in Count II of Case No. 99- 3573.

21. In Count III of Case No. 99-3573, Petitioner alleged that Respondent violated Subsection 489.129(1)(o), Florida Statutes (1995), by committing negligence which resulted in significant damage to property. Petitioner has established by clear and convincing evidence that Respondent violated Subsection

    489.129(1)(o), Florida Statutes (1995). Respondent failed to raise the air conditioner before applying the urethane to the roof and sprayed urethane on the air conditioning unit, resulting in the air conditioner becoming inoperable. Respondent's application of urethane to the Haverly roof resulted in more leaks than were present before Respondent began the repairs and in damage to the interior of the house because of the leaks.

22. Section 455.2273(5), Florida Statutes, provides that the penalty guidelines established by Petitioner shall be followed in disciplinary actions. Petitioner has established penalty guidelines in Chapter 61G4-17, Florida Administrative Code. Rule 61G4-17.001, Florida Administrative Code, provides:

    Normal Penalty Guidelines. The following guidelines shall be used in disciplinary cases, absent aggravating or mitigating circumstances and subject to other provisions of this Chapter.

    * * *

    1. Misconduct or incompetency in the practice of contracting as set forth in Section 489.129(1)(n), Florida Statutes, shall include but is not limited to:

       1. Failure to honor a warranty.

       2. Violation of any provision of Chapter 61G4, Florida Administrative Code, or Chapter 489, Part I, F.S.

       3. Failure to abide by a mediation agreement.

       4. The following guidelines shall apply to cases involving misconduct or incompetency in contracting, absent aggravating or mitigating circumstances:

          1. Misconduct by failure to honor warranty. First violation, $500 to $1,000 fine; repeat violation, $1,000 to $2,000 fine and suspension or revocation.

          2. Violation of any provision of Chapter 61G4, Florida Administrative Code, or

             Chapter 489, Part I, F.S. First violation,

             $500 to $1,000 fine; repeat violations $1,000 to $5,000 fine and suspension or revocation.

          3. Any other form of misconduct or incompetency. First violation $250 to $1,000 fine and/or probation; repeat violations

$1,000 to $5,000 fine and suspension or revocation.

(5) 489.129(1)(o): Being found guilty of gross negligence, repeated negligence, or negligence resulting in a significant danger to life or property. First violation, $500 to $1,500 fine and suspension or revocation; repeat violation, $1,500 to $5,000 fine and suspension or revocation.

* * *

(20) For any violation occurring after October 1, 1989, the board may assess the costs of investigation and prosecution. The assessment of such costs shall be made in addition to the penalties provided by

these guidelines without demonstration of aggravating factors set forth in

rule 61G4-17.002. . . .

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered finding that Ronald Lee Frazier did not violate Subsections 489.119(2) and 489.129(1)(j), Florida Statutes, as set forth in Count III of Case No. 98-5212; finding that Ronald Lee Frazier did violate Subsection 489.129(1)(n), Florida Statutes (1995), as set forth in Count III of Case Nos. 98-5213 and 99-2186 and Count II of Case No. 99-3573; finding that Ronald Lee Frazier did violate Subsection 489.129(1)(o), Florida Statutes, as set forth in Count III of Case No. 99-3573; imposing an administrative fine of

$1,000 for violation of Subsection 489.129(1)(n), Florida Statutes, in Count III of Case Nos. 98-5213 and 99-2186; imposing

an administrative fine of $1,000 for violation of Subsection 489.129(1)(n), Florida Statutes, in Count II of Case No. 99-3573; imposing an administrative fine of $1,500.00 for violation of Subsection 489.129(1)(o), Florida Statutes, in Count III of Case No. 99-3573; suspending Ronald Lee Frazier's license for six months; assessing costs of $1,463.83 for investigation and prosecution in Case Nos. 98-5213, 99-2186, and 99-3573; and taking no action to enforce or collect payment of the fines or assessed costs without authorization of the bankruptcy court unless Ronald Lee Frazier's bankruptcy petition is dismissed or discharged.

DONE AND ENTERED this 30th day of August, 2000, in Tallahassee, Leon County, Florida.

Susan B. Kirkland 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 30th day of August, 2000.

COPIES FURNISHED:

Theodore R. Gay, Esquire Department of Business and

Professional Regulation

401 Northwest Second Avenue Suite N-607

Miami, Florida 33128

Ronald Lee Frazier Post Office Box 12735

Ft. Pierce, Florida 34979-2735

Ronald Lee Frazier

1006 Southwest Sultan Drive Port St. Lucie, Florida 34983

Barbara D. Auger, General Counsel Department of Business and

Professional Regulation Northwood Centre

1940 North Monroe Street Tallahassee, Florida 32399-0792

Rodney L. Hurst, Executive Director Construction Industry Licensing Board 7960 Arlington Expressway, Suite 300

Jacksonville, Florida 32211-7467

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: 98-005212

Orders for Case No: 98-005212