STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

PINELLAS COUNTY CONSTRUCTION ) LICENSING BOARD, )

)

Petitioner, )

)

vs. ) Case No. 99-4708

)

RAYMOND J. MOWERY, JR., )

)

Respondent. )

)

RECOMMENDED ORDER

A hearing was held in this case in Largo, Florida, on March 9, 2000, before Arnold H. Pollock, an Administrative Law Judge with the Division of Administrative Hearings.

APPEARANCES

For Petitioner: William J. Owens, Executive Director

Pinellas County Construction Licensing Board

11701 Belcher Road, Suite 102

Largo, Florida 33773-5116

For Respondent: Raymond J. Mowrey, Jr., pro se

Post Office Box 60002

St. Petersburg, Florida 33714 STATEMENT OF THE ISSUES

The issue for consideration in this case is whether Respondent's certification as a roofing contractor in Pinellas County should be disciplined because of the matters alleged in the Administrative Complaint filed herein.

PRELIMINARY MATTERS

By Administrative Complaint dated October 11, 1999, the Pinellas County Construction Licensing Board seeks to discipline Respondent's certification as a roofing contractor in Pinellas County because, it is alleged, he contracted with the owner of property to perform roofing services, was paid a portion of the contract price, and abandoned the work without providing services in an amount proportionate to the portion of the payment received. Petitioner also charges Respondent with committing fraud or deceit or other misconduct, or being grossly negligent or incompetent in the practice of contracting, in violation of Section 24(2), Chapter 89-504, Laws of Florida. Respondent demanded formal hearing on the allegations and this hearing ensued.

At the hearing, Petitioner presented the testimony of Vivian

1. Campbell, at the time of the contract an officer of the condominium association with whom Respondent contracted to perform roofing services, and Donald V. Graham, manager of the property in question. Petitioner also introduced Petitioner's Exhibits 1 through 7. Respondent testified in his own behalf. He did not present any other evidence.

   No transcript was furnished nor did either party submit matters in writing subsequent to the hearing.

   FINDINGS OF FACT

   
   

   1. At all times pertinent to the issues herein, Petitioner, Pinellas County Construction Licensing Board, was the county agency responsible for certifying the competence of practitioners in the construction trades in Pinellas County, and for the regulation of the construction industry in that county. Respondent was certified as a roofing contractor by Petitioner under certificate number C-7779 (RC0067087).

   2. On April 19, 1999, Vivian P. Campbell, representative of the Bay Pines Apartments Unit Four Association (Association), a condominium association which owns the apartment building at 4600 98th Way, North in St. Petersburg, executed a proposal by Respondent to perform roofing services at the facility for a contract price of $39,050.00. The proposal, accepted by the Association, called for Respondent to install insulation board to existing deck after sweeping away all rock and debris; to install other material; to reseal all gutters and install rain diverters; and to install wood nailers for all perimeters of the roof. No completion date was established or stated in the agreement.

   3. The contract called for a complete price of $39,050 for the work but no time for completion was mentioned in the document. Within the first 30 days of signing the contract, the Association made two payments to Respondent; one on April 19, 1999, in the amount of $9,000, and another on May 13, 1999, in the amount of $4,000, for a total of $13,000.

   4. On May 3, 1999, Respondent removed some gravel from the roof. Respondent also caused some materials to be delivered to the site, erected a sign identifying himself as the contractor, and installed a porta-pottie at the site. However, aside from the initial gravel removal, Respondent did little more roof work than was called for in the contract. On June 20, 1999, he repaired one of several leaks in the building roof, but that repair was a small part of the contract work.

   5. All attempts by the Association and the apartment manager to contact Respondent were unsuccessful. As a result, the Association contacted its attorney who wrote to Respondent on July 6, 1999, demanding he commence work within five days of the letter or the contract would be considered terminated.

   6. Respondent did not do so. However, on July 26, 1999, he wrote to the building manager, apologizing for being slow in starting the work, and offering to deduct $5,000 from the contract price if he could start work. As a result of this letter, the building manager met with Respondent on August 21, 1999, to re-negotiate the contract. At this meeting, the parties agreed that Respondent would do the work for an additional

      $11,000 beyond the $13,000 which had already been paid to him. The additional funds were to be paid in two installments; one on August 19, 1999, and one on August 27, 1999.

   7. A contract incorporating those terms was drawn up and forwarded to Respondent for his signature but he did not sign the

      amended contract, did not do any of the work called for in the contract, and did not return any of the funds paid to him under the contract.

   8. On October 29, 1999, Ms. Campbell met with Respondent and the consumer protection offices of Pinellas County of the Circuit Court. At this meeting, Respondent volunteered to pay back all sums he had received for the work he had agreed to do. He left the meeting room, promising to return with the money within one hour. The other parties went to lunch, and while they were having their meal, Respondent called the consumer protection officer and related he could not raise the money he had promised. There was no further contact from Respondent from that point until the hearing.

   9. Respondent admits that a majority of the complaint of the Association is true. He contends, however, that the delay in starting work was due to the need to obtain the necessary materials for the job and the heavy rains which occurred during the period in question. This was a completely flat roof which had no pitch to it at all and Respondent claims he could not install the new roof if there was any standing water at the site. Respondent also agrees there was a meeting with the building manager during which he indicated his desire to go ahead with the work, but contends he wanted a statement in the supplemental agreement to the effect his license would not be revoked. Any decision on the issue of Respondent's licensure was not within

      the authority of the Association, which had no authority to bind the licensing officials to any particular disciplinary decision.

   10. Respondent also contends he had planned to make the agreed reimbursement payment worked out by the consumer protection officer but could not do so because he was not paid for another job. Then, he contends, before the second payment was due, he was advised of the filing of the disciplinary complaint against his license. When that happened he decided not to pay back any funds as long as discipline was being taken, regardless of what he did.

   11. Respondent's defenses are unpersuasive. The amount of work done by Respondent on the contract was far less than the percentage of payment he received under the contract.

       CONCLUSIONS OF LAW

       
       

   12. The Division of Administrative Hearings has jurisdiction over the parties and the subject matter of this proceeding. Section 120.57(1), Florida Statutes.

   13. Petitioner seeks to discipline Respondent's certification as a roofing contractor in Pinellas County because of his acceptance of partial payment for a contracted roofing job and his subsequent failure either to do the work called for under the contract or to refund the sums paid him by the property owner. If proven, this would constitute an unjustified and unlawful abandonment of work and a violation of Section 24(2)(h), Chapter 89-504, Laws of Florida. Petitioner also alleges that

       Respondent's actions constitute fraud or deceit or gross negligence, incompetence, or misconduct in the practice of contracting.

   14. Petitioner has the burden to establish the misconduct of the Respondent by clear and convincing evidence. Department of Banking and Finance v. Osborne Stern & Co., 670 So. 2d 932 (Fla. 1996).

   15. Section 24(2), Chapter 89-504, Laws of Florida, outlines those acts which constitute cause for disciplinary action against certified or registered contractors in Florida. This provision states inter alia, that disciplinary action may be taken against a contractor when it can be shown that he:

       Commit[ed] mismanagement or misconduct in the practice of contracting that causes financial harm to a customer. Financial mismanagement or misconduct occurs when:

       
       

       * * *

       
       

       (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 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.

   16. The evidence of record is very clear that Respondent accepted a substantial percentage of the total amount called for as payment for the work to be done under the contract. The evidence is equally clear that Respondent did far less work than he was paid for, and his excuses for failing to proceed with due

       diligence or to return any of the funds which were paid to him and to which he was clearly not entitled are not persuasive. His actions in this case constitute misconduct bordering on fraud in the practice of contracting.

   17. That section of the Section 24, Chapter 89-504, Laws of Florida, pertinent to this case is promulgated in Section 489.531, Florida Statutes. Respondent's actions as cited here constitute a violation of this statute as well.

RECOMMENDATION

Based on the foregoing Findings of Facts and Conclusions of Law, it is

RECOMMENDED:

That the Pinellas County Construction Licensing Board enter a final order in this case directing Respondent to reimburse Bay Pines Apartment Unit Four Association all funds paid by it to him for work not accomplished as called for in the contract between them on April 19, 1999; that it revoke Respondent's certification as a roofing contractor in Pinellas County but suspend the execution of the revocation upon Respondent's full and complete repayment; and that it place his certification on probation for a period of one year.

DONE AND ENTERED this 12th day of April, 2000, in Tallahassee, Leon County, Florida.

ARNOLD H. POLLOCK

Administrative Law Judge

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

(850) 488-9675 SUNCOM 278-9675

Fax Filing (850) 921-6847 www.doah.state.fl.us

Filed with the Clerk of the Division of Administrative Hearings this 12th day of April, 2000.

COPIES FURNISHED:

William J. Owens, Executive Director Pinellas County Construction

Licensing Board

11701 Belcher Road, Suite 102

Largo, Florida 33773-5116

Raymond J. Mowery, Jr. Post Office Box 60002

St. Petersburg, Florida 33714

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

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.

Docket for Case No: 99-004708

Orders for Case No: 99-004708