vs. ) CASE NO. 95-1079
DARRYL S. SAIBIC, )
Respondent. )
vs. ) CASE NO. 95-1080
DARRYL S. SAIBIC, )
Respondent. )
vs. ) CASE NO. 95-1081
DARRYL S. SAIBIC, )
Respondent. )
vs. ) CASE NO. 95-1082
DARRYL S. SAIBIC, )
Respondent. )
Pursuant to notice, the Division of Administrative Hearings, by its designated Hearing Officer, Joyous D. Parrish, held a video teleconferencing formal hearing in the above-styled case on August 22, 1995, originating from Miami, Florida.
Port St. Lucie, Florida 34983 STATEMENT OF THE ISSUES
The central issue in these cases is whether the Respondent committed the violations alleged in the administrative complaints; and, if so, what penalty should be imposed.
This recommended order resolves issues of fact for four consolidated cases with the same Respondent, Darryl Saibic. DOAH case no. 95-1079 began on February 17, 1994, when the Department of Business and Professional Regulation, Construction Industry Licensing Board (Department) issued an administrative complaint against the Respondent that alleged three violations of Section 489.129(1), Florida Statutes. All such violations stemmed from work that Respondent was to have performed in connection with a contract with a consumer named Helmly.
DOAH case no. 95-1080 began on October 21, 1994, with a second administrative complaint against the Respondent. This time the complaint alleged five violations of Section 489.129(1), Florida Statutes, which arose in connection with a contract between Respondent and a consumer named Gurdian.
The third case, DOAH case no. 95-1081, began on May 2, 1994, and its administrative complaint alleged four violations of Section 489.129(1), Florida Statutes. In this case the consumer with whom Respondent allegedly contracted for roofing services was named Vila.
Finally, the fourth case, DOAH case no. 95-1082, began on March 23, 1994.
This administrative complaint alleged one violation of Section 489.129(1), Florida Statutes, involving a consumer named Bermudez. As to all cases, the Respondent entered an election of rights seeking a formal hearing. All cases were referred to the Division of Administrative Hearings for formal proceedings on March 6, 1995.
For convenience sake, each case will be addressed with reference to the consumer for whom Respondent had allegedly contracted to perform roofing services. In each case, Respondent disagreed with the allegations of the administrative complaints and, in each case, the Department presented the testimony of the consumer for whom work was to be performed. Additionally, the Department presented the testimony of Michael F. O'Connor, the custodian of records for the Dade County Building and Zoning Department; Leslie G. Knopf, a roofing consultant accepted as an expert in roofing construction; and Joseph L.
Wilson, an investigator employed by the Department. The Department's exhibits numbered 1 through 64 were admitted into evidence.
The Respondent testified on his own behalf. Respondent's exhibits numbered
1 through 9 were also admitted.
The transcript of the proceeding was filed on September 8, 1995. Specific rulings on the proposed findings of fact submitted are included in the appendix at the conclusion of this order.
Petitioner is the state agency charged with regulating licenses for roofing contractors in the State of Florida.
At all times material to the allegations of these cases, Respondent held two licenses; he was a certified roofing contractor, license no. CC CO55580, and a registered roofing contractor, license no. RC 0060386.
Respondent filed an application to qualify the company, D.S.S. & Sons, Inc., as a licensed roofing contractor; however, he failed to complete all documents necessary for licensure, and his application was closed for lack of response effective August 3, 1993.
Respondent's address of record with the Department is 821 SW Dwyer Street, Port St. Lucie, Florida 34983.
D.S.S. & Sons, Inc. is not now, nor has it ever been, licensed to perform roofing construction by the State of Florida.
Facts common to all consumers
On or about August 24, 1992, Hurricane Andrew struck Dade County, Florida, resulting in damage to hundreds of roofs. Roof repair or total replacement following the storm was not uncommon.
Due to the large amount of damage, and the demand for roofing materials created by the volume of work to be performed, some contractors had difficulty obtaining roofing supplies.
Additionally, some contractors had difficulty hiring qualified labor to perform the extensive roofing that was in great demand.
The problems with obtaining materials and labor, however, were short term in that most roofing contractors made arrangements to bring in supplies and staff from other areas.
In fact, by the time the work was to be performed in connection with these cases, the problems which had plagued the Dade County contractors were subsiding.
Additionally, at all times material to these cases, the weather would not have been a factor to justify the delays complained of by these consumers. Rainy weather did not cause any prolonged work delays after the storm.
Findings as to Helmly
Charles Helmly resides at 11985 SW 98th Lane, Miami, Florida. His home was damaged by Hurricane Andrew and required roof replacement.
Mr. Helmly contracted with Respondent to re-roof his home for the sum of $17,940.00. The contract was signed by Respondent's salesman, Felix Fowler, and identified D.S.S. & Sons, Inc. doing business as Darryl Saibic, Roofing Contractor as the licensed entity.
Mr. Helmly paid an initial deposit of $5,382.00 in order for the Respondent to begin work on the project. The next payment, an additional
$5,382.00, was to be due at the "dry in" stage of the job, with the final payment (the balance) due on completion.
One of the contract provisions Mr. Helmly insisted upon was a completion deadline to be stated in the contract. He was expecting visitors and he was anxious to have the home re-roofed before their arrival. He insisted that a guaranteed completion date of March 7, 1993 be noted on the face of the contract.
Mr. Helmly complied with all requirements of the payment schedule outlined by the contract. In fact, he remitted $10,764.00 even though the roof had not been at the "dry in" stage.
Between January and February, 1993, the Respondent removed the old roof, installed a base sheet, and nailed a single ply roof membrane to the roof.
After February, 1993, the Respondent failed to timely complete the Helmly roof.
The value of the work performed by Respondent on the Helmly roof was no more than $3,588.00.
The Respondent did not respond to numerous telephone calls and letters from Helmly, and threatened to place a lien on the Helmly property when Mr. Helmly attempted to cancel the contract in May, 1993.
Mr. Helmly went to the Dade County Building Department and complained about roof leaks in June, 1993 (Respondent had still not done any further work).
On or about June 4, 1993, Respondent sent a crew to the Helmly property to repair the roof. The repairs caused the roof to leak more.
Respondent did not refund Mr. Helmly's money, did not complete the roof, and showed a gross indifference to the plight which resulted when he failed to timely complete the project.
In July, 1993, desperate to have his roof completed, Mr. Helmly offered to purchase the tiles himself if Respondent would have a crew come install the new roof. Respondent agreed to have a crew install the tile within ten days of its arrival.
On September 17, 1993, Mr. Helmly took delivery of the new tile, paid for it in full (a cost of $4,803.00) and notified the Respondent so that the installation could begin.
Respondent never returned to complete the re-roofing. He failed to honor his verbal agreement to install the tiles.
By letter dated October 1, 1993, Respondent offered to reimburse Helmly for the overage if he would hire another contractor to complete the job.
On October 19, 1993, Mr. Helmly hired a new contractor who completed the installation of the new roof in early November, 1993. Approximately eight months after the deadline on Respondent's contract, Mr. Helmly had his new roof.
Extra expenses totalling $2,936.21 were paid by Mr. Helmly as a result of the Respondent's abandonment of this job.
Findings as to Gurdian
On January 14, 1993, the Gurdians contracted with Respondent through his agent, Ed Comstock, to repair the roof on their home located at 13301 SW 110 Terrace, Miami, Florida.
The contract was executed as D.S.S. and Sons, Inc. d/b/a Darryl S. Saibic, Roofing Contractor and called for a total payment of $7,725.00 for the work to be done.
The Gurdians made a deposit of $2,300.00 on January 14, 1993 by check made payable to D.S.S. and Sons, Inc. and received a partial release of lien.
On February 8, 1993, the Respondent pulled a permit for the Gurdian home but never called for inspections on this project.
In February, 1993, all the tiles were removed from the roof and roofing paper was installed.
On March 1, 1993, the Gurdians made a second payment of $2,300.00 by check made payable to D.S.S. and Sons, Inc. and received another partial release of lien.
The Respondent did not timely complete the Gurdian roof.
From June through November, 1993, Respondent sent the Gurdians unsigned notices claiming he would return to their job but did not do so. Numerous excuses were offered as to why the project was not completed; however, none of these had merit.
The Gurdians waited until April, 1994 hoping the Respondent would return and complete the work. They drove to Respondent's office and left a message seeking assistance.
Finally, Respondent recommended a company called CTI to complete the roof work for the Gurdians. When contacted, CTI told the Gurdians it would cost
$7,600.00 to complete their job for which they, not Respondent, would be responsible.
The Gurdians then attempted to notify the Respondent at his address of record by certified mail of their continuing problems but the letter was returned to them unopened.
In June, 1994, the Gurdians hired another company to finish their roof which was finally complete and passed inspections on July 26, 1994.
The Gurdians were required to pay a total of $13,475.00 to have their roof replaced because the Respondent failed to perform under the original contract.
Due to the Respondent's abandonment and indifference in connection with this project, the Gurdians were damaged in an amount not less than
$4,200.00.
The value of the work performed by Respondent on the Gurdians' roof did not exceed $1,545.00.
Respondent has not refunded any of the funds paid by the Gurdians.
Findings of fact as to Vila
Marta Vila resides at 11116 SW 133 Place, Miami, Florida 33186.
Like the others discussed above, the Vila home was damaged and required a new roof.
On January 13, 1993, Vila signed a contract with Ed Comstock acting on behalf of D.S.S. and Sons, Inc., doing business as Darryl S. Saibic, Roofing Contractor, to have her roof repaired for a total contract price of $7,200.00. A down payment of $2,160.00 made payable to the company was made at that time.
On February 8, 1993, Respondent pulled a permit to re-roof the Vila home.
On February 15, 1993, Vila paid an additional $2,160.00 to Respondent. At that time Respondent removed the tiles from the Vila roof and installed one layer of roofing paper over the roof decking.
Despite representations from Respondent that new tiles would be delivered in approximately three to four weeks, the Respondent did not install a new roof on the Vila home.
In February and March, 1993, the roof was patched three times to stop leaks but no substantive work was performed to install new tiles.
Respondent did not return to the Vila home despite numerous requests from the homeowner for the work to be completed.
In June, 1993, Respondent represented that the Vila job might be completed if the tiles were sent out COD. When Vila attempted to verify that information, she was told she had paid enough to not have that concern. However, no tiles were ever delivered to her home.
In August, 1993, Vila, after Respondent failed to return telephone calls, wrote to Respondent and demanded a refund. She has not received one.
Vila ended up paying $7,754.00 to another contractor to have her roof replaced.
The value of the work performed by Respondent on the Vila project did not exceed $1,440.00 yet he has failed or otherwise refused to refund the difference between that amount and what she paid.
Vila has suffered monetary damages in an amount not less than
$4,800.00 as a result of Respondent's abandonment of this project.
Findings of fact as to Bermudez
Mr. and Mrs. Bermudez reside at 8335 SW 147th Place, Miami, Florida.
On November 30, 1992, they signed a contract with Respondent in the amount of $6,400.00 to correct extensive leakage on both floors of the Bermudez home.
Mrs. Bermudez gave a deposit in the amount of $1,860.00 and was told that the repairs would begin in two weeks and be completed in approximately five weeks.
In December 1992, and January, 1993, the Respondent performed some minor patching but no significant work was undertaken to repair the Bermudez home.
In January, 1993, Respondent pulled a permit to replace the Bermudez roof.
Within a week of the permit, Respondent sent an unsigned form letter to the Bermudez advising them that there would be delays.
In February and March, 1993, the Respondent's crew stripped the old tile off the Bermudez home and installed batten and roofing paper over the decking.
Mrs. Bermudez made deposits totalling $3,720.00 to Respondent in connection with this contract.
Despite numerous requests from Mrs. Bermudez, Respondent did not complete the roof.
In July, 1993, Respondent sent a crew to the Bermudez home in connection with a leak but the repair did not resolve the problems and did not substantively finish the roof.
As with the other cases, between July and November, 1993, Respondent sent numerous unsigned form letters to Mrs. Bermudez offering false or ridiculous excuses for why the project had not been completed.
In January, 1994, Mrs. Bermudez filed a formal complaint against Respondent but he never completed the job nor refunded the deposits.
Between March and July, 1994, Respondent represented he would complete the Bermudez job but did not do so.
The Bermudez roof was not completed until December 13, 1994.
As a result of Respondent's incompetence, inability, or refusal to complete the Bermudez roof, the family lived with a leaking roof for approximately two years and incurred unnecessary expenses.
Respondent showed a gross indifference to the plight of the Bermudez family.
Respondent could not have timely completed the projects described above during the period July, 1993 to July, 1994, as his workers compensation had expired. The numerous promises to perform the contracts as originally agreed were meaningless.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the parties to, and the subject matter of, these proceedings.
Section 489.129, Florida Statutes, provides, in pertinent part:
The board may take any of the following actions against any certificate-holder or registrant: place on probation or reprimand the licensee, revoke, suspend, or deny the issuance or renewal of the certificate or registration, require financial restitution to a consumer, impose an administrative fine not to exceed $5,000 per violation, require
continuing education, or assess costs associated with investigation and prosecution, if the contractor, financially responsible officer,
or business organization for which the contractor is a primary qualifying agent or is a secondary qualifying agent responsible under s. 489.1195, is found guilty of any of the following acts:
* * *
Acting in the capacity of a contractor under any certificate or registration issued hereunder except in the name of the certificate-holder or registrant as set forth on the issued certificate or registration, or in accordance with the personnel of the certificate-holder or registrant as set forth in the application for the certificate or registration, or as later changed as provided
in this part.
Committing mismanagement or misconduct in the practice of contracting that causes financial harm to a customer. Financial mismanagement or misconduct occurs when:
The contractor has abandoned a customer's job and the percentage of completion is less than the percentage of the total contract price paid to the contractor as of the time of abandonment, unless the contractor is entitled to retain such funds under the terms of the contract or refunds the excess funds within 30 days after the date the
job is abandoned; or
The contractor's job has been completed, and
it is shown that the customer has had to pay more for the contracted job than the original contract price, as adjusted for subsequent change orders, unless such increase in cost was the result of circumstances beyond the control of the contractor, was the result of circumstances caused by the customer, or was otherwise permitted by the
terms of the contract between the contractor and the customer.
* * *
(k) Abandoning a construction project in which the contractor is engaged or under contract as
a contractor. A project may be presumed abandoned after 90 days if the contractor terminates the project without just cause or without proper notification to the owner, including the reason for termination, or fails to perform work without just cause for 90 consecutive days.
* * *
(n) Committing incompetency, or misconduct in the practice of contracting.
* * *
(p) Proceeding on any job without obtaining applicable local building permits and inspections.
Case no. 95-1079
In this case, Respondent was charged with violating Sections 489.129(1)(g), (k), and (n), Florida Statutes. The Department has established by clear and convincing evidence these violations. The Respondent has offered no credible explanation for the failure to honor the contract entered in this, or the other cases that follow.
Case no. 95-1080
In this case, Respondent was charged with violating Sections 489.129(1) (h)2. and 3., (k), (n), and (p) Florida Statutes. The Department has established by clear and convincing evidence these violations.
Case no. 95-1081
In this case, Respondent was charged with violating Sections 489.129(1) (g), (h)2., (k), and (n), Florida Statutes. The Department has established by clear and convincing evidence these violations.
Case no. 95-1082
In this case, Respondent was charged with violating Section 489.129(1)(k), Florida Statutes. The Department has established by clear and convincing evidence this violation.
Rule 61G4-17.001, Florida Administrative Code, sets forth the disciplinary guidelines applicable to the violations of these cases. In summary, the guidelines allow for penalties which total, at the maximum end of the range, $15,800.00. Regrettably, the monetary damages to the consumers in this matter approach that amount as well.
Rule 61G4-17.002, Florida Administrative Code, sets forth the mitigating and aggravating factors which may be considered in this matter. Pertinent to these cases are the following factors which have been deemed relevant: the monetary damages suffered by three of the four consumers, the repeated nature and severity of the offenses, the indifference of the Respondent evidenced by his lack of effort to make any restitution to the consumers, and the deterrent effect needed to assure that other contractors might consider this case and its outcome before following Respondent's example.
Finally, the agency incurred significant costs associated with the investigation and prosecution of these cases which should be reimbursed by the Respondent. Such amounts are set forth in the affidavits filed with Petitioner's proposed recommended order.
In these cases, the Respondent offered no refunds and no legitimate business reason for his conduct. His performance, or lack thereof, supports the conclusion that the public interest must be protected from this type of contractor. He showed little or no remorse and, through time of the hearing, failed to take, or acknowledge, responsibility for his actions with regard to these cases. Given the tremendous burden and inconvenience placed upon these consumers, Respondent's indifference is reprehensible.
That the Department of Business and Professional Regulation, Construction Industry Licensing Board enter a final order revoking Respondent's licenses, requiring Respondent to make full restitution to the consumers in these cases before being entitled to seek new licensure, imposing an administrative fine in the amount of $10,000, and assessing costs of investigation and prosecution of these cases as set forth in the affidavits filed in this cause.
DONE AND RECOMMENDED this 25th day of October, 1995, in Tallahassee, Leon County, Florida.
JOYOUS D. PARRISH
Filed with the Clerk of the Division of Administrative Hearings this 25th day of October, 1995.
APPENDIX TO RECOMMENDED ORDER, CASE NOS.
1. Paragraphs 1 through 155 are accepted.
1. None submitted.
821 S.W. Dwyer Road
Port St. Lucie, Florida 34983
Department of Business and Professional Regulation Construction Industry Licensing
Lynda L. Goodgame General Counsel
All parties have the right to submit written exceptions to this Recommended Order. All agencies allow each party at least 10 days in which to submit written exceptions. Some agencies allow a larger period within which to submit written exceptions. You should contact the agency that will issue the final order in this case concerning agency rules on the deadline for filing exceptions to this Recommended Order. Any exceptions to this Recommended Order should be filed with the agency that will issue the final order in this case.
