STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF PROFESSIONAL ) REGULATION, FLORIDA CONSTRUCTION ) INDUSTRY LICENSING BOARD, )

)

Petitioner, )

)

vs. ) CASE NO. 81-2919

)

JOSEPH M. BARRASS, )

)

Respondent. )

)

RECOMMENDED ORDER

This matter came on for hearing in Pompano Beach, Florida, before the Division of Administrative Hearings and its duly appointed Hearing Officer, R.

1. Carpenter, on January 25, 1982. The parties were represented by: APPEARANCES

   For Petitioner: Michael J. Cohen, Esquire

   Suite 101 Kristin Building

   2715 East Oakland Park Boulevard Fort Lauderdale, Florida 33306

   
   

   For Respondent: Mr. Joseph M. Barrass, pro se

   1717 North Riverside Drive Pompano Beach, Florida 33064

   
   

   This matter arose on Petitioner's Administrative Complaint charging Respondent with contracting in a name other than that registered, failure to qualify the company through which he was doing business, violation of building codes, abandonment of a construction project and misconduct, in violation of Sections 489.119 and 489.129, Florida Statutes (F.S.) (1979). 1/

   
   

   Petitioner submitted proposed findings of fact and conclusions of law. To the extent these proposed findings have not been adopted or incorporated herein, they have been rejected as irrelevant or not supported by the evidence.

   
   

   FINDINGS OF FACT

   
   

   1. Joseph Barrass is a registered roofing contractor holding State of Florida license number RC0026890. Respondent was so licensed at all times relevant to this proceeding.

      
      

   2. Respondent began doing business as a registered roofing contractor through his corporation, J. B. Roofing and Repairs, Inc., about six years ago. This corporation was dissolved and he continued as a roofing contractor through a corporation known as Roofing Services, Inc. He next did business through a

      third corporation, C. B. Roofing, Inc. Most recently he has done business as C.

      B. Roofing, a sole proprietorship. Respondent failed to register any of these entities with Petitioner, and is still licensed under his original fictitious name, J. B. Roofing and Repairs.

      
      

   3. Respondent contracted with Green Glades Construction Co. in early 1979, to install roofs on some 28 new houses. A dispute arose between the parties regarding several unfinished and leaking roofs. Respondent contends he refused to complete the roofs at issue due to nonpayment in accordance with the oral contract. He also argues that he was unable to repair the leaks while the roofs were wet, as demanded by Green Glades. The dispute was settled through civil proceedings.

      
      

   4. Another matter which culminated in civil action concerned the installation and repair of a patio roof pursuant to an oral contract between Respondent and Marvin Berkowitz, at the latter's Coral Springs residence. Berkowitz complained that Respondent failed to correct a leak in this roof as required by their agreement. Respondent claims the leak was the result of an improperly installed ceiling fan and the flat roof design demanded by Berkowitz.

      
      

   5. Respondent completed the job and received final payment on October 9, 1979. However, the roof leaked and Berkowitz thereafter contacted Respondent on numerous occasions requesting repairs. It was not until Berkowitz retained counsel and threatened legal action that Respondent made any effort to repair the leak. He returned on February 14, 1980, and did limited repair work. The roof continued to leak and Berkowitz sought damages through civil action.

      
      

   6. The evidence is conflicting as to whether or not the ceiling fan had been removed when Respondent returned in February, 1980. Berkowitz testified that it had been removed, and Respondent testified that it had not. The evidence is also in conflict with respect to the caveats and/or assurances Respondent gave Berkowitz regarding this installation. The recollections of both witnesses were self-serving and their testimony was generally lacking in credibility.

      
      

   7. The City of Coral Springs' building code requires a contractor to obtain a permit prior to roof installation. Respondent knew he was required to obtain such a permit for the Berkowitz project, but failed to do so.

      
      

      CONCLUSIONS OF LAW

      
      

   8. Section 489.129, Florida Statutes (1979) , provides in part:

      
      

      1. The board may revoke, suspend,

         or deny the issuance or renewal of the certificate or registration of a contractor or impose an administrative fine not to exceed $1,000, place the contractor on probation, reprimand or censure, a con- tractor if the contractor is found

         guilty of any of the following acts:

         * * *

         (d) Willful or deliberate disregard

         and violation of the applicable building codes or laws of the state or of any municipalities or counties thereof.

         * * *

         (g) 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 regis- trant as set forth in the application for the certificate or registration, or as later changed as provided in this act.

         * * *

         1. Failure in any material respect to comply with the provisions of this act.

         2. Abandonment of a construction pro- ject 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 said project without notification to the prospective owner and without just cause.

         * * *

         (m) Upon proof and continued evidence

         that the licensee is guilty of fraud or deceit or of gross negligence, incompetency, or misconduct in the practice of contracting.

         
         

   9. By contracting under names/entities other than J. B. Roofing and Repairs, Respondent violated Subsection 489.129(1)(g), F.S., quoted above. Section 489.119, F.S., requires that contractors qualify their corporations and agents by application to Petitioner. A separate application is required each time the business name or entity is changed. Respondent violated these provisions on each of the four occasions he changed his business entity and/or name after initially qualifying as a sole proprietor in 1976. Section 489.119, F.S., is established as a basis for disciplinary action through Subsection 489.129(1)(j), F.S., quoted above.

      
      

   10. Respondent is charged with abandonment of a construction project in violation of Subsection 489.129(1)(k) F.S., quoted above, with respect to the Berkowitz contract. Since Respondent completed the installation in October, 1979, he did not "terminate . . . without notification." The evidence was inconclusive as to Respondent's obligation thereafter, and he cannot be found guilty of abandoning his warranty responsibilities "without just cause." This charge should therefore be dismissed.

       
       

   11. Respondent is further charged with wilful violation of an applicable building code with respect to the Berkowitz building permit, which he failed to obtain. Securing such a permit is a routine aspect of contracting and the failure here must be regarded as willful. This is a violation of Subsection 489.129(1)(g), F.S., quoted above, and is a basis for disciplinary action.

       
       

   12. Respondent is also charged with building code violations in the Green Glades project. Here, however, the only evidence of such violations was contained in a hearsay engineering report. While hearsay evidence is admissible for explanatory purposes, it is not a sufficient basis for a finding of fact. Subsection 120.58(1)(a) F.S. This charge should therefore be dismissed.

   13. Respondent is not guilty of misconduct as charged under Subsection 489.129(1)(m), F.S., quoted above. There was no evidence of fraud, dishonesty or other corrupt conduct. With respect to this charge, as with others under these penal provisions, the burden of persuasion is upon the Petitioner. Bowling v. Department of Insurance, 394 So.2d 165 (Fla. 1st DCA 1981).

RECOMMENDATION

From the foregoing, it is RECOMMENDED:

That Respondent be found guilty of violating Sections 489.119, 489.129(1)(g) and 489.129(1)(j), F.S., in failing to register his business entities and contracting without requisite qualification. It is further

RECOMMENDED:

That Respondent be found guilty of violating Subsection 489.129(1)(d), F.S., for wilful disregard of the Coral Springs building code pertaining to building permits. It is further

RECOMMENDED:

That all other charges against Respondent be dismissed. It is further RECOMMENDED:

That Petitioner suspend Respondent's roofing contractor's license for a period of six months.

DONE AND ENTERED this 17th day of February, 1982, in Tallahassee, Florida.

R. T. CARPENTER, Hearing Officer Division of Administrative Hearings The Oakland Building

2009 Apalachee Parkway

Tallahassee, Florida 32301

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 17th day of February, 1982.

ENDNOTE

1/ Formerly Sections 468.107, F.S. (1977), and 468.112, F.S. (Supp. 1978). COPIES FURNISHED:

Michael J. Cohen, Esquire Suite 101, Kristin Building

2715 East Oakland Park Boulevard Fort Lauderdale, Florida 33306

Mr. Joseph M. Barrass

1717 North Riverside Drive Pompano Beach, Florida 33064

================================================================= AGENCY FINAL ORDER

=================================================================

STATE OF FLORIDA

DEPARTMENT OF PROFESSIONAL REGULATION CONSTRUCTION INDUSTRY LICENSING BOARD

DEPARTMENT OF PROFESSIONAL REGULATION/CONSTRUCTION INDUSTRY LICENSING BOARD,

Petitioners,

vs. DPR Case Nos. 0001335

0002713

JOSEPH M. BARRASS, RC 0026890 DOAH Case No. 81-2919

1. B. Roofing and Repairs 4410 N.W. 109th Terrace Coral Springs, Florida 33065

   
   

   Respondent.

   /

   
   

   FINAL ORDER

   
   

   This case came for final action by the Construction Industry Licensing Board on May 14, 1982, in Jacksonville, Florida. An administrative hearing held pursuant to Section 120.57(1), Florida Statutes, resulted in the issuance of a Recommended Order which was reviewed by the Board. The Department of Professional Regulation filed exceptions to said Order which were considered by the Board. Following a review of the Recommended Order, the Exceptions to the Recommended Order, and the complete record of the proceeding, it is

   
   

   ORDERED:

   
   

   1. The findings of, fact contained in the Recommended Order are approved and adopted and incorporated herein by reference

      
      

   2. The conclusions of law contained in the Recommended Order are approved and adopted and incorporated herein by reference

   3. The Recommendation of the Hearing Officer be and is hereby rejected as inappropriate under the circumstances. The Board adopts the exceptions to said Recommendation as filed by the Department. THEREFORE:

IT IS ORDERED and ADJUDGED that the registered roofing contractor's license of the Respondent be and is hereby suspended for one (1) year. It is further ordered that the Respondent pay an administrative fine in the amount of $2000.

DONE and ORDERED this 1st day of June, 1982.

FLORIDA CONSTRUCTION INDUSTRY LICENSING BOARD

John Henry Jones, Chairman

Docket for Case No: 81-002919

Orders for Case No: 81-002919