STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

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

)

Petitioner, )

)

vs. ) CASE NO. 87-4570

)

GEORGE F. GARRARD, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to written notice, a formal hearing was held on February 18, 1988, in Jacksonville, Florida, before Jose Diez-Arguelles, a hearing officer of the Division of Administrative Hearings.

APPEARANCES

For Petitioner: David L. Swanson, Esquire

Department of Professional Regulation

120 North Monroe Street Tallahassee, Florida 32399-0750

For Respondent: No Appearance

BACKGROUND

On July 12, 1957, the Department of Professional Regulation, Construction Industry Licensing Board, Petitioner, issued an Administrative Complaint alleging that George F. Garrard, Respondent, had violated Sections 489.129(1)(d), (k) and (m), Florida Statutes, and requesting that certain penalties be imposed on Respondent. Respondent filed an Election of Rights dated September 20, 1987, whereby he disputed the allegations of facts contained in the Administrative Complaint and requested a formal hearing pursuant to Section 120.57(1), Florida Statutes. The Petitioner then requested a formal hearing from the Division of Administrative Hearings.

At the hearing, Petitioner presented the testimony of Claude E. Bagwell, Ronald Skinner, Judy E. Skinner and Francis E. McKinney and introduced seven exhibits numbered 1, 2, 3, 4, 5, 6A and 6B into evidence. Neither the Respondent nor any representative appeared at the hearing and no evidence was presented on his behalf.

The Petitioner filed proposed findings of fact and conclusions of law.

Petitioner's proposed findings of fact are accepted in their entirety.

ISSUE

Whether Respondent should be disciplined for failure to comply with provisions of Florida law?

FINDINGS OF FACT

1. Respondent, George F. Garrard, is licensed as a registered roofing contractor holding State of Florida license number RC 0045805.

   
   

2. On May 14, 1986, Respondent entered into a contract with Ronald Skinner to reroof a house located at 2226 Eudine Drive, in Jacksonville, Florida. The contract provided that Respondent would: "Tear off the entire roof to sheeting. Haul off all debris. Install 5 ply-build-up roof. New metal edging." In exchange for the work, the contract called for Respondent to receive $1100.00,

$600.00 to be paid in advance for materials and $500.00 to be paid upon completion of the job.

2. Mr. Skinner paid Respondent the $600.00 advance for materials and work on the roof began the following day.

1. While the work on the roof was in progress, Mr. Skinner conducted periodic inspections and noticed that the felt had buckled up. Mr. Skinner asked Respondent how he was going to fix the felt and Respondent said that he could fix the felt by cutting out the buckled parts and patching the felt. Mr. Skinner responded that he had a patched roof before and did not want another; he wanted a new roof. Respondent promised he would fix the problem.

   
   

2. Prior to the work being completed, Respondent made a telephone call to Mr. Skinner and asked for payment of the remaining balance on the contract in order to purchase the materials needed to finish the job. Mr. Skinner agreed to meet John T. Garrard (Respondent's son) at the house and pay the balance. Respondent authorized Mr. Skinner to pay John T. Garrard.

   
   

3. When Mr. Skinner arrived at the house, John T. Garrard and another person were unloading rocks from a pick-up truck and placing the rocks in a pile on the carport roof. Mr. Skinner paid John T. Garrard $500.00 and John T. Garrard wrote "Paid in Full" on the face of the contract and signed his name.

   
   

4. A few minutes after Mr. Skinner left the house, John T. Garrard and the other person also left the house.

   
   

5. Two or three days later, Mr. Skinner returned to the house. He noticed that no further work had been done. The rocks which had been unloaded from the pickup truck were still in a pile on top of the carport. Mr. Skinner was afraid the weight of the rocks would damage the carport so he spread the rocks on the roof.

   
   

6. There were not enough rocks to cover the whole roof. Also, the rocks were loose because no tar had been spread on the roof to hold the rocks in place.

   
   

7. Mr. Skinner contacted Respondent or someone in his household several times, and Respondent assured him he would finish the job. No further work was done on the roof by Respondent. Mr. Skinner last contacted Respondent by letter dated January 26, 1987, wherein he asked that Respondent finish the job since he had been paid in full.

8. On the date of the hearing, the roofing job had not been completed. The rocks were still insufficient to cover the entire roof, no tar had been spread to hold the rocks in place, and the felt was still buckled in various places.

   
   

9. Respondent never obtained a building permit for the reroofing job.

   
   

   CONCLUSIONS OF LAW

   
   

10. The Division of Administrative Hearings has jurisdiction over this matter. Section 120.57(1), Florida Statutes (1985).

    
    

11. Section 489.129, Florida Statutes (1985), provides that the Construction Industry Licensing Board may revoke or suspend the registration of a contractor and impose an administrative fine not to exceed $5,000, or reprimand or censure the contractor if the contractor is found guilty of committing any of the acts enumerated in the section.

    
    

12. In this case, the Administrative Complaint charges Respondent with violations of Sections 489.129(7)(d), (k) and (m), Florida Statutes (1985). These sections provide:

    
    

    (d) Willful or deliberate disregard and violation of the applicable building codes or laws of the state or of any municipalities or counties thereof.

    (k) 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 the project without notification to the prospective owner and without just cause.

    (m) Upon proof that the licensee is guilty of fraud or deceit or gross negligence, incompetency, or misconduct in the practice of contracting.

    
    

13. Respondent is charged with violating Section 489.129(1)(d), Florida Statutes (1985), because he failed to obtain a permit and inspections from the focal building department. In addition, or in the alternative, Respondent is charged with violating Section 489.12(1)(m), Florida Statutes (1985), because the failure to obtain the required permit or inspections were the result of Respondent's failure to competently supervise the activities of the contracting business. Finally, Respondent is charged with violating Section 489.129(7)(k), Florida Statutes (1985), because he abandoned the job prior to its completion.

    
    

14. Dealing with the last allegation first, Respondent is guilty of abandoning a construction project. Respondent entered into a contract to replace the roof of a house in exchange for $1100.00. Up to the date of the hearing, the job remained incomplete. Respondent has been paid the full amount called for under the contract and has been unresponsive to telephone calls and letters requesting that he finish the job.

15. Respondent is also guilty of violating Section 489.129(7)(d), Florida Statutes (1985), because Respondent failed to obtain a permit. Section 220.401 of the City of Jacksonville Building Code requires that a permit be obtained prior to the application, construction or replacement of a roof covering. The evidence in this case shows that no permit was ever issued for a roofing job at

    226 Eudine Drive. Since Respondent is a licensed contractor in the City of Jacksonville, it can be inferred that he knew that a permit was required and that his failure to obtain a permit was willful or deliberate. No evidence was presented at the hearing on the issue of inspections.

    
    

16. Since the Respondent is guilty of violating Section 489.129(7)(d), it is not necessary to address the alleged violation of Section 489.129(1)(m), since this charge is based on the failure to obtain a permit and the Respondent has already been found guilty of that charge.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner enter a final order finding Respondent guilty

of violating Sections 489.129(1)(d) and (k), Florida Statutes, and imposing a fine of $2,000 on Respondent.

DONE and ENTERED this 30th day of March, 1988, in Tallahassee, Florida.

JOSE A. DIEZ-ARGUELLES

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 30th day of March, 1988.

COPIES FURNISHED:

David L. Swanson, Esquire Department of Professional

Regulation

120 North Monroe Street Tallahassee, Florida 32399-0750

George F. Garrard

4622 Tabernacle Place, East Jacksonville, Florida 32207

Fred Seely Executive Director

Construction Industry Licensing Board

Post Office Box 2 Jacksonville, Florida 32201

William O'Neil, Esquire Department of Professional

Regulation

130 North Monroe Street Tallahassee, Florida 32399-0750

Docket for Case No: 87-004570

Orders for Case No: 87-004570