making a misleading, deceptive or untrue representation in the practice of his profession; (3) violating local building codes in two instances; and (4) engaging in the business of contracting in a county or municipality without first complying with local licensing requirements.
This case arose from a four-count administrative complaint . Th filed against respondent on December 17, 1981, which, as amended, alleged that respondent (1) abandoned a roof repair project; (2) made a misleading, deceptive or untrue representation regarding his obligations under a one-year guarantee covering the roof repairs; (3) willfully or deliberately disregarded and violated local building codes in that he failed to obtain a building permit to undertake roof repairs, and he engaged in the business of contracting without first complying with local licensing requirements; and (4) contracted in a county or municipality without first complying with local licensing requirements.
Formal hearing was set for January 31, 1983. Respondent was contacted on January 27, 1983 and verbally agreed to reschedule the hearing for February 1, 1983. He failed, however, to appear at hearing.
At hearing, petitioner presented the testimony of Ezra Grant and Arthur Mayer, and Exhibits Nos. 1 through 9 (b) were received into evidence. Based on the evidence presented at hearing, the following facts are determined.
At all times material hereto, respondent held registered roofing contractor's license, number RC 0033215, issued by the State of Florida. The license has been in a delinquent status since July 1, 1981. (Petitioner's Exhibit 1).
Between October 1, 1979, and September 30, 1980, respondent held an occupational license issued by the County of Indian River, Florida, which enabled him to engage in the business of roofing contracting in that county. However, this occupational license expired on September 30, 1980. (Petitioner's Composite Exhibit 9).
In February, 1981, respondent entered into a verbal agreement with Ezra Grant to repair, for compensation, all leaks in the front and rear sections of the roof on Grant's home, which was located in Sebastian, Florida. (Testimony of Grant).
When respondent and Grant entered into this verbal agreement, respondent gave Grant one of his calling cards. On the face of the calling card, in the lower right corner, was written "licensed and insured." (Petitioner's Exhibit 4; Testimony of Grant).
At all time material hereto, respondent was not licensed to engage in the business of roofing contracting in the City of Sebastian, Florida. (Petitioner's Exhibit 5).
Pursuant to the agreement, respondent performed roof repairs on Grant's home. (Testimony of Grant).
Respondent failed to obtain a permit to perform such roof repairs in violation of Section 105.1, Standard Building Code, as adopted by the City of Sebastian, Florida in Section 7-16, Article II, Sebastian Code of Ordinances. (Petitioner's Exhibits 6 and 8a and b).
On February 19, 1981, respondent submitted a bill in the amount of
$800.00 to Grant for the roof repairs. The bill described the work performed and stated that the "work is guaranteed for 1 year." (Petitioner's Exhibit 2; Testimony of Grant).
On February 20, 1981, Grant paid respondent, in full, for the described roof repairs. (Petitioner's Exhibit 3).
Approximately two weeks after respondent performed the roof repairs, the roof over the rear portion of Grant's home began to leak, again, in the area where it was repaired. (Testimony of Grant).
Respondent returned to Grant's home, on two occasions1 after the discovery of continuing leakage in the roof over the rear portion of Grant's home. However, respondent did not perform roof repairs on either occasion. On the first occasion, he merely removed equipment which he had left at Grant's home. (Testimony of Grant).
After Grant complained to petitioner Department of Professional Regulation, respondent returned a second time. He inspected the rear portion of Grant's roof, removed two layers of slate from the roof, and tested it by pouring water over it. Although this test revealed that Grant's roof still leaked, Grant made no effort to repair the leakage. (Testimony of Grant).
Arthur Mayer, then the Building Official for the City of Sebastian, observed respondent removing the slate from the roof. He instructed respondent that, upon finishing the work, he should go to the Sebastian City Hall and apply for a roofer's license and a permit for the roof repairs already performed on Grant's home. Respondent promised to comply. (Testimony of Mayer).
But, despite his promise, he failed to apply for and obtain a license to engage in the business of roofing contracting in the City of Sebastian, Florida.
He also failed to apply for and obtain a roof permit, and pay the proper late fees, as required by Section 107.2, Standard Building Code, as adopted by the City of Sebastian, Florida, in Section 7-16, Article II, Sebastian Code of Ordinances. (Testimony of Mayer; Petitioner's Exhibits 6, 8a and c).
Grant, eventually, had his roof repaired by another contractor at a cost of $150.00. (Testimony of Grant).
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the parties and subject matter of this proceeding, Section 120.57(1), Florida Statutes (1981).
The Construction Industry Licensing Board is empowered to suspend, revoke or otherwise discipline the certificate or registration of a contractor if he is found guilty of violating the following provisions of Section 489.129(1), Florida Statutes (1979):
Violation of Chapter 455.
Willful or deliberate disregard and violation of the applicable building codes or laws of the
state or of any municipalities or counties thereof.
Failure in any material respect to comply with the provisions of this act.
Abandonment of 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 said project without notification to the Prospective owner and without just cause.
License revocation proceedings are penal in nature. The prosecuting agency is required to prove its charges by clear and convincing evidence, by
evidence as substantial as the consequences. See, Bowling v. Department of Insurance, 394 So.2d 165 (Fla. 1st DCA 1981); Walker v. State, 322 So.2d 612 (Fla. 3rd DCA 1975); and Reid v. Florida Real Estate Commission, 188 So.2d 846 (Fla. 2nd DCA 1966).
Here, the petitioner proved that respondent violated Section 489.129(1), Florida Statutes (1979), in the manner described below.
Misleading, Deceptive, or Untrue Representation.
In an action to prove that a representation is misleading, deceptive or untrue, where the representation is one of future intention, one must show not only that the representation of future intention is misleading, deceptive or untrue, but also that the statement, at the time it was made, was knowingly made. See, Brod v. Jernigan, 188 So.2d 575 (Fla. 2nd DCA 1966); and Travelodge Intern., Inc., v. Eastern Inns, 382 So.2d 789 (Fla. 1st DCA 1980).
In the present case, respondent made a statement of his intention to guarantee his work for a period of one year. This statement was misleading, deceptive or untrue. State of mind may be inferred from one's actions and intent may be established by the facts and circumstances of a case. See, Edwards v. State, 302 So.2d 479 (Fla. 3rd DCA 1974). Only two weeks elapsed between the furnishing of the warranty statement and the discovery of continued leakage. After it was brought to his attention, respondent did not make a bona fide effort to correct the problem. Neither did he explain his reason for failing to honor the warranty.
It is concluded, therefore, that the respondent violated Section 455.227(1)(a) (prohibiting misleading, deceptive, or untrue representation), and thereby violated Section 489.129(1)(c), Florida Statutes (1979). Respondent's conduct demonstrates a disregard for the truth or falsity of statements made by him in the practice of his profession.
Willful or Deliberate Disregard and Violation of Local Building Code or Law.
Respondent violated Section 105.1, Standard Building Code, as adopted by the City of Sebastian, Florida, in Section 7-16, Article II, Sebastian Code of Ordinances. Section 105.1, Standard Building Code provides in material respect that "Any . . . contractor who desires to . . . repair a building or structure . . . or cause any such work to be done, shall first make application to the Building Official and obtain the required permit therefor." Respondent performed roof repairs on Grant's home without the required local permit. It may he reasonably inferred that this omission was willful and deliberate. Respondent was specifically notified of the permit requirement, after the initial roof repairs were performed. He was given an opportunity to obtain a permit after the work was performed and pay late fees, as provided in Section 107.2, C Standard Building Code. However, he failed to do so. His repeated failure to obtain a permit for the roof repairs constitutes a willful or deliberate disregard or violation of local building codes, in violation of Section 489.129(1)(d) , Florida Statutes (1979).
Respondent also violated Section 7-700(b)(6), Article II, Sebastian Code of Ordinances, by failing to obtain a specialty contractor's license prior to engaging in the business of roofing contracting in the City of Sebastian, Florida. Section 7-100(b)(6), Article II, Sebastian Code of Ordinances, provides that:
(b) The following acts constitute cause for disciplinary action:
(6) Failure in any respect to comply with the provisions of this article.
Section 7-99, Article II, Sebastian Code of Ordinance, makes it unlawful for any person to engage in the business of or act in the capacity of a contractor without first meeting the provisions of Article VII. Article 7-90, Article VII, declares that the business of construction and home improvements is a matter affecting the public interest, and any person engaging in the business shall be required to establish his competency and qualifications as provided therein.
Under Article VII, a roofing contractor must be licensed as a specialty contractor in the City of Sebastian, Florida, prior to engaging in the business of roofing contracting within its boundaries.
Respondent was specifically notified of this licensing requirement. He was further given an opportunity to obtain such a license after performing roof repairs on Grant's house. None- theless, he failed to comply with the local licensing requirements prior to--or after--engaging in the business of roofing contracting in Sebastian, Florida. Such conduct reasonably supports an inference that his failure to obtain the required license constituted a willful or deliberate disregard and violation of the Sebastian Code of Ordinances, thereby constituting a violation of Section 489.129(1)(c), Florida Statutes (1979).
Failure to Comply with Ch. 489. Section 489.117 allows a registered contractor to engage in contracting only after complying with all local licensing requirements. Respondent's failure to comply with local licensing requirements thus constitutes a violation of Section 489.129(1)(j), which prohibits a licensee from failing to comply, in any material respect, with Chapter 489.
Abandonment of a Construction Project. The evidence does not, however, establish a violation of Section 489.129(1)(k) which prohibits abandonment of a construction project without notice and just cause. Respondent failed to adequately perform under the contract. His conduct does not, however, evince an intent to abandon the project. Petitioner may not enforce construction contracts or impose penalties
for their breach. Cf. Peck Plaza Condominium
v. Div. of Fla. Land Sales and Condominiums, 371 So.2d 152, 154 (Fla. 1st DCA 1979). To hold that failure to fully perform under a contract constitutes abandonment under
Section 489.129(1)(k) , would allow petitioner to do indirectly what it cannot do directly.
Penalty. Respondent's misconduct has not been explained or justified. No mitigating evidence has been presented. Revocation of his license is, therefore, an appropriate remedy.
