vs. ) Case No. 99-1184
CLAYTON R. LA ROSE, )
Respondent. )
On May 5, 1999, a formal hearing was held in this case in Largo, Florida, before Carolyn S. Holifield, Administrative Law Judge, Division of Administrative Hearings.
For Petitioner: William J. Owens
For Respondent: Clayton R. La Rose
Whether Respondent, Clayton R. La Rose, committed the offenses alleged in the Administrative Complaint and, if so, what penalty should be imposed against his general building and roofing contractor's license.
On or about February 3, 1999, Petitioner, Pinellas County Construction Licensing Board (Petitioner), filed an Administrative Complaint against Respondent, Clayton R. La Rose (Respondent), alleging in three counts that he violated Section 489.129(l)(h) and (k), Florida Statutes, and Chapter 75-489, Laws of Florida, as amended by Chapter 89-504, Section 24(2), Laws of Florida.
Specifically, Count One alleges that Respondent violated Section 489.129(1)(k), Florida Statutes, by failing to complete work on a remodeling project for which he had contracted and that he abandoned the project. Count Two alleges that Respondent caused financial harm to the owners with whom he had contracted by abandoning the job when the percentage of work completed by Respondent was less than the total contract price paid at the time of abandonment in violation of Section 489.129(1)(h), Florida Statutes. Count Three alleges that Respondent is guilty of gross negligence, incompetency, or misconduct in the practice of contracting. Finally, Petitioner alleges that these acts by Respondent constitute violations of Chapter 75-489, Laws of Florida, as amended by Chapter 89-504, Section 24(2)(d), (h), (j), (k) and (m), Laws of Florida.
Respondent denied the allegations contained in the Administrative Complaint and requested a formal hearing. By letter dated April 22, 1996, the matter was referred to the
Division of Administrative Hearings to conduct a formal proceeding. The case was originally assigned to Administrative Law Judge Arnold H. Pollock, but was transferred to the undersigned prior to hearing.
At the hearing, Petitioner presented the testimony of Laura Bitmor, Thomas Bitmor, and Jeremiah Samuel. Petitioner's Exhibits 1 through 4 were offered and received into evidence.
Respondent testified on his own behalf and presented the testimony of Darryl Kelly. Respondent's Exhibits 1 and 2 were offered and received into evidence. At the request of the parties, the record remained open until May 15, 1999, for late- filed exhibits. Petitioner late-filed its Exhibits 5, 6 and 7, which were received into evidence. Respondent late-filed his Exhibit 3, which was received into evidence.
The hearing was recorded but not transcribed. Neither party submitted a proposed recommended order.
At all times pertinent to these proceedings, Respondent, Clayton La Rose, was a certified general and roofing contractor having been issued License Nos. C-7778 and RG0066646. Respondent was doing business as Atlantis Construction and Roofing, Inc., in St. Petersburg, Florida.
On or about November 24, 1997, Respondent entered into an agreement (Agreement) with Thomas and Laura Bitmor to remodel
the Bitmor's house located at 7551 9th Avenue South, St. Petersburg, Florida.
The Agreement provided that the work was to begin on December 15, 1997, and was to be "substantially completed" by March 15, 1998.
Pursuant to the terms of the Agreement, the total cost of the remodeling project was $77,410.00, with progress payments to be made by the Bitmors at various intervals during the contract period. The payment schedule required that the Bitmors pay 50 percent down for materials when they were ordered and the remaining 50 percent balance when the materials were delivered. With regard to labor costs, the Agreement required the Bitmors to pay 50 percent of the labor costs when the specified labor was completed and to pay the remaining 50 percent after the job was inspected.
The remodeling project was a complicated one in that it required that demolition and construction work be done simultaneously.
The Agreement's Scope of Work, which indicated what labor and materials would be furnished by Respondent as part of the remodeling project, provided in relevant part the following:
Demolition of 75% of roof, ceilings in the living room, dining room, kitchen, front right bedroom, approximately 31' of master bedroom wall, 2 planters in the living room, non-bearing ent. Door and wall in
foyer. $3,000.00
Roof trusses, 1/2" plywood, 2 x 8 studs to install around all outside walls of house. $14,520.00
Clay roof tiles and 90# roll roofing. $8,715.00
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Tile floors 2 bedrooms, foyer, master bed and bath. $5,500.00
Electrical box's [sic] & rewiring only. $1,300.00
Respondent began the remodeling project in December 1997 as required by the Agreement and for the first few months he worked on the project six days a week.
During the course of the remodeling project, between January 16, 1998, and July 10, 1998, Respondent called for several inspections to be conducted by the City of
St. Petersburg, Construction Services and Permitting Division (City).
On January 16, 1998, the City inspected and approved the footer ground, the foundation and slab, and the vertical steel of the remodeling project.
The City's second inspection was conducted on February 4, 1998; on that date all inspected items, vertical
steel, lintel, and the beam were disapproved. Although the beam was disapproved, there is no indication that it did not meet code requirements. Rather, according to the Inspection History Report, the beam was disapproved because on the date of the inspection, that item was not ready for inspection.
On April 21, 1998, the City inspected, but disapproved, the framing of the remodeling project, noting that the work was in progress but was not ready for the framing inspection.
On April 29, 1998, the City inspected, but disapproved, the framing of the remodeling project, noting that approval by the City was subject to Respondent's submitting a letter from a structural engineer approving certain work that had not been inspected by the City. The work that was to be approved by a structural engineer included the partial tie beam, all the roof sheathing, all structural framing, anchors, and supports. These items could not be inspected by the City inspector because at the time of this inspection Respondent was "too far along" on the project and those items were no longer visible. Due to problems with the inspections of the remodeling project, the City issued and posted a Stop Work Order on April 29, 1998.
On or about May 18, 1998, Respondent provided the City with the required letter from an engineer that was required as a result of the April 29, 1998, inspection. After the City received the letter from the engineer, which approved the items noted in the paragraph above, the City lifted the Stop Work Order and Respondent resumed work on the project.
On May 22, 1998, the City conducted a fifth inspection of the remodeling project. The items inspected were the vertical steel, the lintel, and the beams. All work related to these items were approved with the exception of the "partial tie beam
rear right bedroom over sliding glass door." The City's approval of work related to the partial tie beam was conditioned on Respondent's providing to the City a letter of approval from an architect and/or structural engineer on "as built structural framing." It is unknown whether Respondent ever submitted the required letter.
On July 10, 1998, the City conducted its final inspection of the remodeling project. On that date, the City inspected and approved the columns of the remodeling project.
According to City records, Respondent called for a slab inspection on July 22, 1998, but there is no record that the City ever performed the inspection.
Clearly, many items inspected by the City were not approved. However, the City inspector who inspected Respondent's work on the remodeling project acknowledged that when, as in this case, demolition and construction are being done simultaneously, it is "impossible to determine if the code is being violated." Given that the demolition and construction were taking place simultaneously to maintain and protect the integrity of the interior of the Bitmor's house, the timing of inspection requests may have prevented such inspections.
Respondent did not complete the remodeling project in March 1998 as provided for in the Agreement. However, the March 1998 completion date was put in by contractor and was not required by the Bitmors. In fact, Mr. Bitmor testified that he
did not view the contract as being one in which time was of the essence.
Between December 1997 and September 25, 1998, Respondent continuously worked on the project. During this time period, Respondent issued invoices totaling $41,567.00 to the Bitmors for materials purchased and for labor performed on the remodeling project. The Bitmors promptly paid all the invoices issued by Respondent.
The Bitmors paid Respondent $41,567.00, the total amount invoiced by Respondent. However, Respondent did not perform or satisfactorily perform certain roofing and electrical work for which he charged the Bitmors and for which he was paid. The relevant labor and material costs associated with the roofing and electrical work are as follows:
Roof trusses $6,200.00
b. 5/8" plywood $1,600.00
Truss/wall labor $5,520.00
Roof tiles $ 410.00
Electrical labor $ 500.00
Electrical box and
wiring $ 300.00
On Wednesday, September 23, 1998, the Bitmors made their last payment to Respondent; this payment was $1,100 for labor on the master bedroom. The following Monday, September 28, 1998, after Respondent did not report to the Bitmors to work on the project, Mrs. Bitmor called Respondent and asked if he would be coming to work the next day. When Respondent told Mrs. Bitmor that he would not return to work on the project until Wednesday,
she demanded that he come the next day. Respondent did not report to the Bitmors on Tuesday, but instead went there on Wednesday, September 30, 1998, as he had indicated in his conversation with Mrs. Bitmor.
On Wednesday, September 30, 1998, when Respondent reported to work, Mr. Bitmor told him that he would receive no more money until the project was completed. Following
Mr. Bitmor's pronouncement, Respondent explained that he could not continue to work without being paid. Nonetheless, in early October 1998, Respondent went to the Bitmors two or three times a week to work on the project. However, later that month, without notifying the Bitmors that he was leaving the job, Respondent stopped all work on the project.
When Respondent left the remodeling project, except for the roofing, he had completed approximately 90 percent of the work.
Respondent completed two items, dry/plaster labor and the interior painting of the master bedroom, for which he never issued invoices. The respective costs associated with this work was $1,300.00 and $750.00, respectively. The Bitmors never refused to pay for this work, but did not do so because Respondent failed to issue invoices.
The Agreement called for Respondent to purchase tile and to install tile floors in the Bitmor's home at a cost of
$5,500.00. However, in August or September 1998, the Bitmors
asked Respondent if they could get someone else to do the tile work. Respondent agreed to this request and the Bitmors engaged the services of someone other than Respondent to install the floor tiles. Respondent never billed the Bitmors for labor or material connected with the installation of the floor tile.
The Agreement called for Respondent to demolish most of the old roof on the Bitmor's house and to install a new tile roof. Respondent began the roofing phase of the remodeling project in January 1998. However, it appears that Respondent never completed the roof.
There is no indication that Respondent ever called for an inspection of the roof. Therefore, no official inspection of the roof was ever conducted during the course of Respondent's installing the new roof, the roof trusses and roof sheeting. However, while on site, the City inspector saw some of the roofing work that Respondent was doing on the remodeling project and observed that he was using old sheeting on the roof.
Respondent did not install the tile roof as required by the Agreement and the building code. Consequently, the roof will have to be replaced. The Bitmors have secured price proposals from six roofing contractors to determine the cost of installing a roof. The price proposals were $18,970; $16,480; $15,925;
$10,660; and $9,240. All six proposals noted that the existing roof would have to be torn off and included this job as part of their proposal price.
The Bitmors paid Respondent a total of $6,778 for labor and material costs related to the roofing work. This amount includes the following: $6,200 for roof trusses; $410 for roll roofing; and $168 for plywood for the roof.
Pursuant to the Agreement, the cost of the roof tiles and the "roof labor" was $6,300.00 and $2,415.00, respectively. However, except for the $410.00 for the roll roofing, which was included in and assessed from the roof tile category, Respondent never billed the Bitmors nor did they pay for the cost of roof tiles or for labor associated with installation of the roof.
The Agreement included a category "truss/wall labor" to be performed at a cost of $5,520.00. This amount was billed by Respondent and paid by the Bitmors. Admittedly, some of the labor included in this category may have been attributable to work that Respondent performed on the roof. However, there is no evidence of what percentage of this labor, if any, was for work performed on the roof.
Pursuant to the Agreement, Respondent was required to perform certain electrical work and purchase the materials necessary for that work. The Agreement provided that the total cost of labor and materials for the electrical work was
$1,300.00. On March 16, 1998, Respondent issued an invoice to the Bitmors; the invoice included the cost of $800.00 for the labor and materials associated with electrical work on the remodeling project. Of the $800.00, $300.00 was for materials
and $500 represented one-half of the total labor cost for the electrical work. Although the Bitmors paid Respondent $800 for the electrical work, Respondent did not perform the electrical work according to the terms of the Agreement. As a result thereof, the Bitmors had the electrical work on the remodeling project performed by Electrical Technicians, Inc., at a cost of
$1,191.00.
The Bitmors paid Respondent $7,578.00 for work that he failed to perform pursuant to the terms of the Agreement. As described in paragraphs 29 and 32 above, this amount includes
$6,778.00 and $800.00 for labor and material costs associated with the roofing work and the electrical work, respectively.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction of the parties to and the subject matter of this proceeding pursuant to Sections 120.57(1) and 120.68(8), Florida Statutes.
Petitioner, Pinellas County Construction Licensing Board, is statutorily empowered to discipline the licenses of roofing and general contractors based upon any of the grounds enumerated in Chapter 75-489, Laws of Florida, as amended by Chapter 89-504, Section 24, Laws of Florida, and Section 489.129, Florida Statutes.
Respondent, as a licensed building contractor, is subject to disciplinary guidelines of Chapter 89-504, Section 24, Laws of Florida, and Section 489.129, Florida Statutes.
In license discipline cases such as this, Petitioner must prove the alleged violations by clear and convincing evidence. Ferris vs. Turlington, 510 So. 2d 292 (Fla. 1987).
Petitioner alleges that Respondent is guilty of violating the following provisions of Chapter 89-504, Section 24, Laws of Florida:
(d) Willfully or deliberately disregarding and violating the applicable building codes or laws of the state, this board, or of any municipality or county of this state;
* * *
(2) 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 to 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.
* * *
(h) Committing mismanagement or misconduct in the practice of contracting that causes financial harm to a
customer . . .
* * *
Failing in any material respect to comply with the provisions of this part . . .
* * *
Abandoning 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) Being found guilty of fraud or deceit or of gross negligence, incompetency, or misconduct in the practice of contracting.
Respondent is also charged with violating Section 489.129(1)(h) and (k), Florida Statutes, which authorizes disciplinary action if a licensee or certificate holder is guilty of the following:
(h) Committing mismanagement or misconduct in the practice of contracting that causes financial harm to a
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.
Petitioner established by clear and convincing evidence the allegations contained in Counts One, Two, and Three of the
Administrative Complaint. It is undisputed that after Respondent entered into a contract for remodeling the Bitmor's house, he did not complete the work and abandoned the job. Moreover, Respondent caused financial harm to the Bitmors by charging them for the roofing work that was not properly done and failing to complete the roofing job in accordance with the terms of the Agreement. Accordingly, Respondent's conduct constitutes a violation of Section 489.129(l)(k), Florida Statutes, as alleged in Count One; Section 489.129(l)(h), Florida Statutes, as alleged in Count Two; and Section 24(2)(m), Chapter 89-504, Laws of Florida, as alleged in Count Three.
Petitioner is authorized to suspend certificate holders from all operations as contractors; suspend or revoke certificates; impose administrative fines not to exceed
$1,000.00; require restitution; and impose reasonable investigative and legal costs. Chapter 89-504, Section 24, Laws of Florida, and Chapter 93-387, Section 24, Laws of Florida.
RECOMMENDED that the Pinellas County Construction Licensing Board enter a final order finding Respondent, Clayton La Rose, guilty of violating Section 489.129(l)(h) and (k), Florida Statutes, and Chapter 89-504, Section 24(2)(d)(h),(j), (k) and (m), Laws of Florida; imposing an administrative fine of
$1,000.00; and requiring restitution in the amount of $7,578.00 be paid to Thomas and Laura Bitmor.
CAROLYN S. HOLIFIELD
William J. Owens Executive Director
Clayton R. La Rose
All parties have the right to submit written exceptions within 15 days from the date of this Recommended Order. Any exceptions to this Recommended Order should be filed with the agency that will issue the final order in this case.
