STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

STATE OF FLORIDA, DEPARTMENT ) OF PROFESSIONAL REGULATION, ) CONSTRUCTION INDUSTRY LICENSING ) BOARD, )

)

Petitioner, )

)

vs. ) CASE NO. 84-1674

) (DPR No. 0037488)

JOHNNY C. FOSSETT, )

)

Respondent. )

)

RECOMMENDED ORDER

Notice was given and a formal hearing was conducted in Room 409, Richard P. Daniels Building, 111 East Coast Line Drive, Jacksonville, Florida, commencing at 2:00 p.m., August 15, 1984. Charles C. Adams was the Hearing Officer on this occasion.

APPEARANCES

For Petitioner: H. Reynolds Sampson, Esquire

Staff Attorney

Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32301

For Respondent: No appearance

ISSUE

The issues in this matter are as established through an Administrative Complaint brought by the State of Florida, Department of Professional Regulation, against Johnny C. Fossett alleging various violations of Chapter 489, Florida Statutes, related to a job conducted for Joshua and Jacquelyn Williams. More specifically, Respondent is accused of violation of Section 489.129(1)(j) , Florida Statutes (1981), by failing to properly qualify a company under which he was doing business. In a related vein, he is accused of violation of Section 489.129(1)(g) Florida Statutes (1981), by acting in a name other than that on his license. Respondent is accused of violating Section 489.129(1)(d), Florida Statutes (1981), for willful and deliberate disregard and violation of a local building code. Respondent is accused of violating Section 489.129(1)(j), Florida Statutes, for contracting beyond the scope of his registration. Finally, Respondent is accused of a violation of Section 489.129(2), Florida Statutes,(1981), in violating Rule 21E-15.07, Florida Administrative Code, by failure to notify the Construction Industry Licensing Board of a change of address within 30 days of such change.

FINDINGS OF FACT

1. Respondent, Johnny C. Fossett, is the holder of a license issued by the Florida Construction Industry Licensing Board in the field of registered roofing contractor. That license number is RC 0040728. Respondent is also the qualifying agent of J. C. Fossett Roofing & Maintenance Repair of 4978 Soutel Drive, Jacksonville, Florida. In addition to the Soutel address associated with

   J. C. Fossett Roofing & Maintenance Repair, Respondent has given the Florida Construction Industry Licensing Board the address 8937 Castle Boulevard, Jacksonville, Florida, as his address.

   
   

2. On April 15, 1983, Respondent contracted with Joshua and Jacqelyn Williams of 4634 Fairleigh Avenue, Jacksonville, Florida, for the construction of a utility building with roof; to repour a carport slab; and to construct a screened-in patio with roof. The agreement was also for the removal of a tree hanging over the den and carport area of the existing home. The total price of this contract was $3,550. Eighteen hundred dollars was paid as a deposit, and the remainder of the contract price was paid on May 11, 1983. In the proposal or contract agreement Respondent noted that the work was guaranteed by an entity known as J. C. Roofing. A copy of this proposal may be found as Petitioner'S Exhibit No. 2 admitted into evidence. Neither the Respondent nor any other duly licensed contractor had qualified the entity/organization known as J. C.. Roofing with the Florida Construction Industry Licensing Board.

   
   

3. Respondent performed the work called for in the contract, without obtaining the necessary building permit from the City of Jacksonville, Florida. Respondent was registered with the City of Jacksonville as a roofing contractor. He was not registered in the fields of general contracting, building contracting, or residential contracting, which would have been necessary before Respondent could conduct that work for the Williamses, other than roofing. Respondent could not have been registered with the City of Jacksonville in those fields of general contracting, building contracting, and residential contracting because he was not qualified.

   
   

4. The Williamses experienced problems with the quality of Respondent's work, most notable, leaks in the roof that Respondent had worked on. When it rained water would run down the walls and promote mildew. This was in the area of the joining of the roof over the patio and the roof over the carport. In response to complaints, Fossett made such remarks as "A little water on the roof is good" and offered to drill holes in the roof and install rain gutters to alleviate the problem. The owners found this unacceptable. Respondent having failed to satisfy their claims, the Williamses sought other assistance in effecting repairs. The roof still leaks. On the occasion of attempting to have these problems corrected, the Williamses sought to contact the Respondent at his Soutel address by calling the number found on the business card provided by the Respondent. When phoning that number it was discovered that someone other than the Respondent was doing business from the Soutel address. The phone number was the Respondent's residential number. The card, as given to the Williamses, indicates that the business is J & C Roofing Company, Johnny C. Fossett, Owner. Again, this business name is one for which the Florida Construction Industry Licensing Board has no indication of a duly licensed contractor properly qualifying that entity, either the Respondent or some other person.

   Petitioner's Exhibits Nos. 5 through 7, admitted into evidence, are photographs of the work done by the Respondent, to include roofing, and the mildew on the concrete blocks found on the outside of the patio wall which was promoted by the leak in the roof.

   CONCLUSIONS OF LAW

   
   

5. The Division of Administrative Hearings has jurisdiction over the subject matter and the parties to this action. See Section 120.57, Florida Statutes.

   
   

6. Count I accuses the Respondent of a violation of Section 489.129(1)(j), Florida Statutes (1981), by failure to properly qualify a company under which he was doing business, as set forth in Sections 489.119(2) and (3), Florida Statutes (1981), Section 489.129(1)(j) speaks of the failure in any material respect to comply with the provisions of the act. That provision has been violated in that the Respondent failed to comply with the requirements of Sections 489.119(2) and (3), Florida Statutes (1981). In the Williams job, instead of operating in the name under which he had qualified, i.e. J. C. Fossett Roofing & Maintenance Repair, Respondent was operating through J. C. Roofing/J & C Roofing Company, an entity for which he had sought no qualification as a licensed roofing contractor, nor had those entities been qualified through the offices of some other licensed roofing contractor.

   
   

7. Count II accuses the Respondent of the willful and deliberate disregard and violation of the local building codes of the City of Jacksonville, Duval County, Florida. Respondent violated the City of Jacksonville Building Code by failing to obtain a building permit for the construction related to the Williams job and thereby violated Section 498.129(1)(d) , Florida Statutes (1981), by the willful and deliberate disregard of the requirement of that building code to obtain a permit.

   
   

8. Count III accuses the Respondent of doing contracting work outside his specialty. In particular it is alleged that Respondent violated Section 489.129(1)(j), Florida Statutes (1981), dealing with failure in any material respect to comply with the provisions of the act, by contracting to do work beyond the scope of his registration within the meaning of Section 489.117(2), Florida Statutes (1931). This violation was established in that the Respondent was a registered roofing contractor who contracted for and conducted work in the fields of general contracting, building contracting, and residential contracting beyond the scope of his license.

   
   

9. Count IV accuses the Respondent of violation of Rule 21E-15.07, Florida Administrative Code, and thereby violating Section 489.129(2), Florida Statutes which makes it a violation of the statute to violate requirements of the rule. Rule 21E-15.07, Florida Administrative Code, requires that a registrant or certificate holder notify the department within thirty days of a change in his name, style or address from that which appears on his current certificate of registration. In particular, Respondent is accused of failing to contact the Florida Construction Industry Licensing Board of his change of address within thirty days. While the proof demonstrates that Respondent was not operating at 4978 Soutel Drive in Jacksonville, Florida, another address given to the state was 893 Castle Boulevard, Jacksonville, Florida, which may have been the Respondent's residence address as described in the facts. Under those circumstances, it is not clear that Respondent changed his address without notifying the Florida Construction Industry Licensing Board, in that one address on file with them conceivably remained in effect. As a consequence, it has not been shown that the agency was left without the benefit of any current address attributable to the Respondent and no violation of the rule has been shown and the statute is not violated.

10. For the violations as established, the Respondent is subject to the penalties as set forth in Section 409.129(1), Florida Statutes (1981), as the aforementioned substantive provisions remain in effect at present in Chapter 489, Florida Statutes (1981). Based upon the facts found and the conclusions of law reached, it is

RECOMMENDED that a final order be entered which finds the Respondent guilty of violations of Counts I through III and dismisses Count IV. For the violations as established, Respondent should be suspended for sixty (60) days, to run concurrently with the penalty in DOAH Case No. 84-1675 (DPR No.

0041789).

DONE AND ENTERED this 26th day of September, 1984, at Tallahassee, Florida.

CHARLES C. ADAMS

Hearing Officer

Division of Administrative Hearings The Oakland Building

2009 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 26th day of September, 1984.

COPIES FURNISHED:

H. Reynolds Sampson, Esquire Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32301

Mr. Johnny Fossett 8937 Castle Boulevard

Jacksonville, Florida 32208

Mr. Johnny Fossett 4978 Soutel Drive

Jacksonville, Florida 32208

James Linnan, Executive Director Construction Industry

Licensing Board

Department of Professional Regulation Post Office Box 2

Jacksonville, Florida 32202

Fred M. Roche, Secretary Department of Professional

Regulation

130 North Monroe Street Tallahassee, Florida 32301

Docket for Case No: 84-001674

Orders for Case No: 84-001674