STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

PINELLAS COUNTY CONSTRUCTION ) LICENSING BOARD, )

)

Petitioner, )

)

vs. ) CASE NO. 96-1957

)

GLENN V. CURRY, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a formal administrative hearing was held in this case on July 17, 1996, in Largo, Florida, before Carolyn S. Holifield, a Hearing Officer with the Division of Administrative Hearings.

APPEARANCES

For Petitioner: William J. Owens

Executive Director

Pinellas County Construction Licensing Board

11701 Ulmerton Road

Largo, Florida 34643-5116 For Respondent: No appearance

STATEMENT OF THE ISSUES

Whether Respondent, Glenn V. Curry, committed the offenses alleged in the Administrative Complaint and, if so, what discipline should be imposed against Respondent's roofing contractor's license.

PRELIMINARY STATEMENT

On or about March 14, 1996, Petitioner, Pinellas County Construction Licensing Board, filed an Administrative Complaint alleging that Respondent subcontracted roofing work to an unlicensed person in violation of Section 489.129(1)(e), Florida Statutes. Petitioner further charges that the allegations contained in the Administrative Complaint constitute violations of Chapter 75-489, Laws of Florida, as amended by Chapter 89-504, Section 24 (2)(d), (e), (j), and (m), Laws of Florida.

Respondent denied the allegations contained in the Administrative Complaint and timely requested a formal hearing. By letter dated April 23, 1996, the matter was referred to the Division of Administrative Hearings and this proceeding followed.

Although Respondent was provided with written notice of the date, time, and place at which the formal hearing in this case would be conducted, there was no appearance by or on behalf of Respondent at the formal hearing.

At the hearing, Petitioner presented the testimony of Connie Socash, an investigator with the Pinellas County Construction Licensing Board, and had two exhibits admitted into evidence. At the request of Petitioner, the record remained open until July 28, 1996, for late-filed exhibits. Petitioner submitted and had admitted into evidence two late-filed exhibits.

The hearing was recorded but not transcribed. Neither party submitted proposed findings of fact and conclusions of law.

FINDINGS OF FACT

1. At all times pertinent to this proceeding, Respondent, Glenn V. Curry, was a certified roofing contractor having been issued license C-3810.

   
   

2. During times material hereto, Respondent was the qualifying contractor for Economic Roofing Company, 2538 Surinam Court, Holiday, Florida.

   
   

3. On or about December 27, 1995, Connie Socash, an investigator with the Pinellas County Construction Licensing Board, observed two individuals performing roofing work on the structure located at 2024 Cleveland Street in Pinellas County, Florida.

   
   

4. Adjacent to the Cleveland Street property was a truck from which the individuals were working. Affixed to the truck was a magnetic sign with the words "Economic Roofing" printed on it.

   
   

5. When approached by Ms. Socash, the two people performing the roofing work stated that they were subcontractors for Economic Roofing. One of the individuals performing the roofing work identified herself as Bonnie Sargent. However, neither of the individuals provided Investigator Socash with a roofing contractor's license or license number.

   
   

6. After determining that Petitioner had not issued a roofing contractor's license to Bonnie Sargent, Investigator Socash issued a citation to the person identifying herself as Bonnie Sargent. The citation was issued to Ms. Sargent for subcontracting and performing "roofing work without a competency license as required by law."

   
   

7. The citation, which was signed by Ms. Sargent, listed the following two options that were available to her: (1) pay a fine of $125.00 within a specified time period; or (2) appear at the Pinellas County Misdemeanor Courthouse on January 19,1996. Ms. Sargent chose the first option and paid the fine of $125.00 on or about January 9, 1996.

   
   

8. After issuing the citation to Bonnie Sargent, Investigator Socash contacted Respondent regarding the Cleveland Street roofing project. Respondent refused to cooperate with Investigator Socash and failed to provide her with any information regarding the relationship of Bonnie Sargent to Economic Roofing.

   
   

9. Prior to this case, Respondent has not been the subject of any disciplinary action by the Pinellas County Construction Licensing Board.

   CONCLUSIONS OF LAW

   
   

10. The Division of Administrative Hearings has jurisdiction of the parties and the subject matter of this proceeding pursuant to Section 120.57(1) and 120.68(8), Florida Statutes.

    
    

11. The Pinellas County Construction Licensing Board is statutorily empowered to suspend or revoke the certificate of any roofing contractor based upon any of the grounds enumerated in Section 489.129, Florida Statutes, and Chapter 75-489, Laws of Florida, as amended by Chapter 89-504, Section 24, Laws of Florida. Pursuant to these provisions, Petitioner is also authorized to impose administrative fines not to exceed $1000.00, require restitution, and impose reasonable investigative and legal costs.

    
    

12. Respondent, a licensed roofing contractor, is charged with the responsibility of complying with all applicable statutes and regulations adopted by Petitioner. Likewise, Respondent is subject to disciplinary guidelines of Section 489.129, Florida Statutes, and Chapter 89-504, Section 24, Laws of Florida.

    
    

13. Petitioner alleges in the Administrative Complaint that Respondent is guilty of subcontracting roofing work to an uncertified or unlicensed person in violation of Section 489.129 (1)(e), Florida Statutes. According to that provision, a certificateholder is subject to disciplinary action for the following:

    
    

    (e) Performing any act which assists a person or entity in engaging in the prohibited uncertified and unregistered practice of contracting, if the certificateholder knows

    or has reasonable grounds to know that the person or entity was uncertified and unregistered.

    
    

14. It is further alleged that Respondent is guilty of violating the following provisions of Chapter 89-504, Section 24, Subsection 2, Laws of Florida:

    
    

    1. Willfully or deliberately disregarding and violating the applicable building codes or laws of the state, this board, or any municipality or county of this state;

    2. Performing any act which assists a person or entity in engaging in prohibited uncertified and unregistered practice of contracting, if the certificateholder or registrant knows or has reasonable grounds to know that the person or entity was uncertified and unregistered;

       * * *

       (j) Failing in any material respect to comply with the provisions of this part;

       * * *

       (m) Being found guilty of fraud or deceit or

       of gross negligence, incompetency, or misconduct in the practice of contracting.

15. In license discipline cases, such as this, the burden is on Petitioner to establish Respondent's guilt by clear and convincing evidence. Ferris v. Turlington, 510 So.2d 292 (Fla 1987).

    
    

16. Petitioner has met its burden in this case. Evidence adduced at hearing established that Respondent is the qualifying contractor for Economic Roofing, Inc. As the qualifying contractor for Economic Roofing, Respondent is responsible for supervising, directing, managing, and controlling the contracting activities of the company. Sections 489.1195(1) and 489.105 (4), Florida Statutes.

    
    

17. The unrefuted evidence is that Respondent subcontracted roofing work to an unlicensed person. This act by Respondent constitutes a violation of Section 489.129 (1) (e), Florida Statutes, and Chapter 89-504, Section 24 (2) (d), (e), (j), and (m), Laws of Florida.

    
    

18. The offense committed by Respondent is a major infraction and, under Petitioner's disciplinary guidelines, the appropriate administrative fine for such a violation is $750.00.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Pinellas County Construction Licensing Board enter a Final Order:

1. Finding Respondent, Glenn V. Curry, guilty of violating Section 489.129

   (1) (e), Florida Statutes, and Chapter 89-504, Section 24 (2) (d), (e), (j), and (m), Laws of Florida as alleged in the Administrative Complaint.

   
   

2. Imposing an administrative fine of $750.00.

   
   

3. Suspending Respondent's roofing contractor's certificate for one year. Such suspension may be stayed subject to terms and conditions prescribed by the Pinellas County Construction Licensing Board.

DONE and ENTERED this 27th day of August 1996, in Tallahassee, Florida.

CAROLYN S. HOLIFIELD

Hearing Officer

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 27th day of August, 1996.

COPIES FURNISHED:

William J. Owens Executive Director

Pinellas County Construction Licensing Board

11701 Ulmerton Road

Largo, Florida 34643-5116

Glenn V. Curry 2538 Surinam Court

Holiday, Florida 34691

Howard Bernstein, Esquire County Attorney's Office

315 Court Street

Clearwater, Florida 34616-5165

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions to the 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 consult with the agency that will issue the Final Order in this case concerning their 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.

Docket for Case No: 96-001957

Orders for Case No: 96-001957