STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF BUSINESS AND )

PROFESSIONAL REGULATION, ) CONSTRUCTION INDUSTRY LICENSING ) BOARD, )

)

Petitioner, )

)

vs. ) Case No. 02-3777PL

)

LARRY S. OLSON, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a hearing was held in the above-styled case on November 15, 2002, in Viera, Florida, before William R. Pfeiffer, a duly-designated Administrative Law Judge of the Division of Administrative Hearings.

APPEARANCES

For Petitioner: Brian A. Higgins, Esquire

Department of Business and Professional Regulation

1940 North Monroe Street Tallahassee, Florida 32399-2202

For Respondent: No appearance.

STATEMENT OF THE ISSUE

Whether disciplinary action should be taken against Respondent's license to practice contracting, license number CC C057275, based on the violations of Section 489.129(1), Florida

Statutes, as charged in the Administrative Complaint filed against Respondent in this proceeding.

PRELIMINARY STATEMENT

On May 7, 2001, Petitioner filed an Administrative Complaint alleging Respondent had violated the laws regulating his professional activities as a certified contractor in the State of Florida. The two-count Administrative Complaint charged Respondent with having violated Section 489.129(1)(i), Florida Statutes, by failing to file for a certificate of authority as required by Section 489.119(2), Florida Statutes, and for violating Section 489.129(1)(m), Florida Statutes, by committing incompetence and misconduct in the practice of contracting and failing to honor a warranty. Respondent disputed the allegations contained in the Administrative Complaint and elected to proceed to formal administrative hearing. The case was transferred to the Division of Administrative Hearings for final hearing pursuant to

Section 120.57, Florida Statutes.

During the hearing, Petitioner offered the testimony of Judith Kopp, a disgruntled homeowner. Petitioner introduced eight exhibits, all of which were admitted into evidence.

Respondent failed to appear at the final hearing.

FINDINGS OF FACT

1. At all times material, Respondent was a certified contractor, having been issued license number CC C057275 by the Florida Construction Industry Licensing Board.

2. At all times material, Respondent was registered or certified with the Construction Licensing Industry Board doing business as Comtec Coatings Company (Comtec).

3. At no time material hereto did Respondent apply for or obtain a certificate of authority for Comtec.

4. Respondent has previously been disciplined for violations of Chapter 489, Florida Statutes, in Department of Business and Professional Regulation Case Number 2001-03759, including the failure to honor a warranty.

5. On or about March 29, 1996, Respondent, doing business as Comtec Coatings Company, contracted with Kopp to re-roof her home located at 1010 Terry Drive, Melbourne, Florida, for the contract price of $8,600. Respondent's contract contained a five year warranty. Respondent was paid-in-full on or about April 6, 1996.

6. Shortly after Respondent performed the roofing work, the roof experienced significant problems including excessive leakage and material deterioration. Eventually, the roof lost its ability to repel water and large portions rotted.

   Immediately, Respondent was advised of the problems yet failed to repair them.

7. Kopp, along with her concerned friends and neighbors, expended hundreds of labor hours and at least $896.61 above the original contract price to mitigate the damage to her roof and home as a result of Respondent's workmanship. An independent roofing contractor estimated that it would cost $3,000 to temporarily repair the leaks and approximately $33,000 to replace it and completely correct the problem.

8. As of the date of the administrative hearing, the roof has not been repaired, remains in poor condition and continues to leak. Kopp is legitimately concerned that her home may be condemned.

9. The total investigative costs of this case to the Department of Business and Professional Regulation, excluding costs associated with counsel's time, are $399.30.

   CONCLUSIONS OF LAW

   
   

10. The Division of Administrative Hearings has jurisdiction over the parties and subject matter of this proceeding, pursuant to Section 120.57, Florida Statutes.

11. Petitioner, the Department of Business and Professional Regulation, is the state agency charged with regulating the practice of contracting pursuant to Section 20.165 and Chapters 455 and 489, Florida Statutes.

12. Pursuant to Section 489.129, Florida Statutes, the Florida Construction Industry Licensing Board is empowered to revoke, suspend or otherwise discipline the license of a contractor who is found guilty of any of the grounds enumerated in Section 489.129(1), Florida Statutes.

13. Petitioner has the burden of proving by clear and convincing evidence the allegations against Respondent. Section 120.57(1)(h), Florida Statutes; and Department of Banking and Finance v. Osborne Stern and Co., 670 So. 2d 932 (Fla. 1996).

14. The Administrative Complaint alleges that Respondent is guilty of violating Subsections 489.129(1)(i) and (m), Florida Statutes, which provide in pertinent part, as follows:

    1. 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 . . . or business organization for which the contractor is a primary qualifying

       agent . . . is found guilty of any of the following acts:

       
       

       1. Failing in any material respect to comply with the provisions of this part or violating a rule or lawful order of the board.

          
          

          (m) Committing incompetency or misconduct in the practice of contracting.

          
          

15. Pursuant to Section 489.119(2), Florida Statutes, an applicant who proposes to engage in contracting as a business organization, must apply for a certificate of authority. Petitioner has proven by clear and convincing evidence that Respondent failed to apply for the certificate and is guilty of Count I of the Administrative Complaint.

16. Pursuant to Section 489.129(1)(g)3, Florida Statutes, financial mismanagement or misconduct in the practice of contracting occurs when the contractor's job has been completed and it is shown that the customer had to pay more for the contracted job than the original contract price, absent certain circumstances. Petitioner has proven by clear and convincing evidence that Respondent initially failed to properly repair the roof, later failed to correct the damage he created, and forced Kopp to expend significant time and money to ameliorate the damage. Respondent failed to honor the warranty contained in the contract in violation of Section 489.129(1)(m), Florida Statutes, and is guilty of Count II of the Administrative Complaint.

17. Respondent is subject to disciplinary action by the Construction Industry Licensing Board pursuant to Sections

    455.227 and 489.129, Florida Statutes. The disciplinary action under these statutes includes placing the license on probation,

    reprimanding the licensee, revoking, suspending, denying the issuance or renewal of the certificate or registration, requiring financial restitution to the consumer, imposing an administrative fine not to exceed $5,000 per violation, requiring continuing education and assessing costs associated with investigation and prosecution.

18. Pursuant to Section 455.227(5), Florida Statutes, the administrative law judge, in recommending penalties in any recommended order, must follow the penalty guidelines established by the board or department, unless there are mitigating or aggravating factors.

19. Rule 61G4-17.001, Florida Administrative Code (1996), provides the following guidelines to be applied in this disciplinary case:

(8) Mismanagement or misconduct causing financial harm. Repeat violation, $1,500 to

$5,000 fine and suspension or revocation.

1. Failure in any material respect to comply with the provisions of the statute or violating a rule or lawful order of the board.

   
   

   1. Failure to register qualified business organization. Repeat violation,

$500 to $1,000 fine and suspension or revocation.

(14) Misconduct in the practice of contracting.

1. The following guidelines shall apply to cases involving misconduct or incompetency in the practice of contracting.

   1. Misconduct by failure to honor warranty. Repeat violation, $1,000 to

$2,000 fine and suspension or revocation.

RECOMMENDATION

Based on the foregoing findings of fact and conclusions of law, it is

RECOMMENDED that Petitioner enter a Final Order as follows:

1. Finding Respondent guilty of having violated

   
   

   Section 489.129(1)(i), Florida Statutes, for failing to file for a certificate of authority as required by Section 489.119(2), Florida Statutes, as alleged in Count I of the Administrative Complaint, and imposing an administrative fine in the amount of

   $1,000.

   
   

2. Finding Respondent guilty of having violated

   
   

   Section 489.129(1)(m), Florida Statutes, for incompetency and misconduct as alleged in Count II of the Administrative Complaint, and imposing an administrative fine in the amount of

   $2,000, revoking all licensure under the auspices of the Florida Construction Industry Licensing Board.

3. Finding Respondent guilty of having violated

   
   

   Section 489.129(1)(g)(3), Florida Statutes, for having Kopp pay significantly more than the roofing repair contract price, and

   imposing an administrative fine in the amount of $5,000, revoking all licensure under the auspices of the Florida Construction Industry Licensing Board, and ordering Respondent to pay financial restitution to consumer Judith Kopp in the amount of $33,896.61 for consumer harm suffered.

4. Assessing costs of investigation and prosecution in the amount of $399.30, which excludes costs associated with any attorney's time.

DONE AND ENTERED this 31st day of December, 2002, in Tallahassee, Leon County, Florida.

WILLIAM R. PFEIFFER

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 31st day of December, 2002.

COPIES FURNISHED:

Brian A. Higgins, Esquire Department of Business and

Professional Regulation 1940 North Monroe Street

Tallahassee, Florida 32399-2202

Larry S. Olson

3451 Riva Ridge Place

Fort Collins, Colorado 80526

Robert Crabill, Executive Director Construction Industry Licensing Board Department of Business and

Professional Regulation Northwood Centre

1940 North Monroe Street Tallahassee, Florida 32399-0792

Hardy L. Roberts, III, General Counsel Department of Business and

Professional Regulation Northwood Centre

1940 North Monroe Street Tallahassee, Florida 32399-2202

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: 02-003777PL

Orders for Case No: 02-003777PL