Judges: STEPHEN F. DEAN
Agency: Department of Business and Professional Regulation
Latest Update: Apr. 04, 1983
Summary: Respondent should be suspended for one year for diversion, abandonment and failing to register his company.
82-1027STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
DEPARTMENT OF PROFESSIONAL )
REGULATION, CONSTRUCTION )
INDUSTRY LICENSING BOARD, )
)
Petitioner, )
)
vs. ) CASE NO. 82-1027
)
ROBERT W. COPENHAVER, )
)
Respondent. )
)
RECOMMENDED ORDER
This case was heard pursuant to notice on October 20, 1982, in Bradenton, Florida, by Stephen F. Dean, assigned Hearing Officer of the Division of Administrative Hearings. This case arose from a four-count Administrative Complaint filed against Respondent Robert W. Copenhaver alleging that on four occasions Respondent allowed his registration to be used by a corporation not qualified by any licensed contractor to perform roofing work, in violation of Sections 489.129(1)(e), (f), (g) and (j), Florida Statutes (1979); that in two instances Respondent made fraudulent, deceptive or untrue representation regarding warranty obligations incurred by said corporation, in violation of Section 489.129 (1)(c), Florida Statutes (1979); and that Respondent diverted funds from a construction project and then abandoned the project, in violation of Sections 489.129(1)(h) and (k), Florida Statutes (1979).
APPEARANCES
For Petitioner: Stephanie A. Daniel, Esquire
Department of Professional Regulation
130 North Monroe Street Tallahassee, Florida 32301
For Respondent: Did not appear and was not represented.
The formal hearing in this cause was originally noticed to begin at 9:00
on October 20, 1982. However, due to conditions beyond the Hearing Officer's control, the hearing was postponed until 1:00 p.m. on the same date. Despite the fact that Respondent was properly notified of the time change, he failed to appear for the hearing.
In June, 1982, a Motion to Amend the Administrative Complaint was filed to delete charges that the Respondent aided and abetted an unlicensed person in four instances to evade the provisions of Chapter 489, Florida Statutes, in violation of Section 489.129(1)(e), Florida Statutes (1979); and that Respondent knowingly combined or conspired with an unlicensed person by allowing his registration to be used by such person with the intent to evade the provisions of Chapter 489, Florida Statutes, in violation of Section 489.129(1)(f), Florida Statutes (1979).
At the hearing, Petitioner presented evidence in support of the factual issues, which were whether Respondent was engaged in business as a roofing contractor under the name Southwest Roofing and Waterproofing Corporation; whether Respondent made fraudulent, deceptive or untrue representations in the practice of his profession; and whether Respondent diverted funds from a construction project and later abandoned the construction project.
Petitioner submitted posthearing proposed findings of fact in the form of a proposed recommended order. To the extent the proposed findings of fact have not been included in the factual findings in this order, they are specifically rejected as being irrelevant, not being based upon the most credible evidence, or not being a finding of fact.
FINDINGS OF FACT
At all times material hereto, Respondent Robert F. Copenhaver was holder of a registered general contractor's license number RG 0013968 issued by the State of Florida. At all times material hereto, Respondent qualified Southwest Building and Development Corporation with the Construction Industry Licensing Board. See Petitioner's Exhibit #1.
At all times material herein, neither Respondent nor Southwest Roofing and Waterproofing, Inc., were registered or certified as a roofing contractor with the Board. See Petitioner's Exhibit #1.
At all times material herein, Respondent was the holder of a Class C building contractor's license and a specialty limited roof-coating and spraying license, both issued by Sarasota County. See Transcript of Proceedings, page
Said license was limited to work done to cosmetically improve a roof. Any work done to repair leaks required a standard roofing license.
Respondent and Don Cogswell incorporated Southwest Roofing and Waterproofing, Inc. (SRWI), under the laws of the State of Florida on January 10, 1980. See Petitioner's Exhibit #5. All work done by SRWI was done under the Sarasota special roofing contractor qualification.
Respondent was president of the corporation until December 15, 1980, at which time he resigned and transferred all his stock to Cogswell. See Petitioner's Exhibit #6.
On February 14, 1980, SRWI contracted with A. T. Esslinger to completely waterproof a roof at 816 Idlewild Way, Sarasota, Florida. See Petitioner's Exhibit #2. The only warranty referenced in the contract was a separate standard warranty to be delivered at the time of final payment. See Petitioner's Exhibit #3A. Respondent gave the Esslingers a letter (Petitioner's Exhibit #3B) in which SRWI guaranteed to stop the leaks in their roof. This letter referenced SRWI's standard warranty. To waterproof the roof, gravel was removed from the existing roof and a cement-like surface applied to the roof.
On June 4, 1980, SRWI contracted with Earl Mowry to waterproof a roof at 5339 Gulf Drive, Holmes Beach, Bradenton, Florida, in accordance with specifications originally attached to the contract but not introduced at hearing. See Petitioner's Exhibit #4. To waterproof the roof, a concrete material was applied to the existing roof.
On June 25, 1980, SRWI contracted with Maynard Howe to waterproof a roof over the family room in accordance with attached specifications at 2271 Mill Terrace, Sarasota, Florida. The only warranty given was the separate standard warranty to be delivered at the time of final payment. See Petitioner's Exhibits #7A and #7B. To waterproof the roof, a concrete material was applied to the existing roof.
All of these contracts provided that SRWI would apply MARKEM Elastic Waterproofing material so that said roof areas were completely covered and free of all leaks. See Petitioner's Exhibits #9A, #9B and #9C for data concerning MARKEM.
After the work was completed, each of the roofs in question leaked. When Respondent was contacted after he had left SRWI, he advised each of the persons that he had left the company and could not assist them. Respondent referred them back to SRWI, MARKEM or the company who became the MARKEM distributors in the area. None of the persons obtained relief from SRWI, the Respondent, MARKEM or MARKEM's new distributor. See Transcript of proceedings, pages 16, 25, 34.
Howe sued SRWI and served Respondent with suit papers. In response, Respondent sent Howe a notarized document (Petitioner's Exhibit #6), which states that as of December 15, 1980, Respondent had resigned as president of SRWI and had transferred all of his stock to Don Cogswell.
On October 14, 1980, SRWI contracted with Catherine Gilligan to waterproof her roof at 4819 Graywood Lane Meadows, Sarasota, Florida. See Petitioner's Exhibit #12. Gilligan paid SRWI $174 as partial payment on this contract. SRWI never did any work pursuant to the contract. Gilligan called SRWI, but to her knowledge never spoke to the Respondent concerning when SRWI was to start the job. Gilligan waited for one month, then called SRWI every day for three weeks. In the fourth week, SRWI's telephone was disconnected. This date reasonably coincides with the date Respondent resigned, December 15, 1980.
No evidence was received of disciplinary action against SRWI or the Respondent by Sarasota County.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has authority to hear this case and enter this Recommended Order pursuant to Section 120.57(1), Florida Statutes. The Construction Industry Licensing Board has brought this action pursuant to Section 489.129, Florida Statutes. The Board amended its charges to dismiss or delete from the original Administrative Complaint the allegations that Respondent violated Sections 489.129(1)(e) and (f), Florida Statutes.
As amended, the Administrative Complaint alleges that Respondent violated Section 489.129(1)(c) by violating Section 455.227(1)(a), Florida Statutes, by making misleading, deceptive, untrue or fraudulent representations in the practice of his profession. This allegation is grounded on the charge that warranties given to Esslinger, Mowry and Howe were not honored when their roofs continued to leak. When Respondent was contacted by Esslinger, Mowry and Howe, he advised them he was no longer associated with the company and referred them to Cogswell and MAREEM. The Board argues that the fact that the warranties were not honored is proof that the Respondent did not intend to honor them and issued the warranties knowing they were worthless.
Fraud and misrepresentation are allegations which must be pled and proven specifically. Under the standards of proof applicable to offenses for which a person's right to practice a profession may be revoked, the Respondent's specific intent to defraud or misrepresent the warranty may not be presumed from the failure of the corporation to honor the warranty after the Respondent severed his association with the corporation. The Board has the burden to prove all essential elements of each offense as alleged. There is insufficient proof that Respondent intended to defraud or misrepresent the warranty to the customers. The Board failed to show a violation of Section 455.277(1)(a), Florida Statutes, and thereby a violation of Section 489.129(1)(c), Florida Statutes.
The Administrative Complaint as amended alleges that the Respondent violated Section 489.129(1)(h) and (k), Florida Statutes, by not working on the Gilligan project and by not refunding her $174. This statute provides in pertinent part as follows:
The board may revoke, suspend, or deny the issuance or renewal of the cer- tificate 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:
(h) Diversion of funds or property received for prosecution or completion of a specified construction project or opera- tion when as a result of the diversion the contractor is or will be unable to fulfill the terms of his obligation or contract.
(k) Abandonment of a construction project in which the contractor is engaged or under contract as a contractor. A pro- ject is to be considered abandoned after
90 days if the contractor terminates said project without notification to the pros- pective owner and without just cause.
Assuming there was a diversion of funds, no evidence was presented that Respondent or SRWI was unable to fulfill the terms of the contract as a result of said diversion. Petitioner argues that it is "obvious" that SRWI put the funds to some other use and could not complete the job because "presumably" Respondent had put the money to some other use.
Under the evidentiary standard applicable to these proceedings, it is neither "obvious," nor may it be "presumed," that the job could not be done because the money was diverted. The evidence reflects that Cogswell, who assumed control of SRWI, repaid Gilligan the $174, although payment was 18 months later. This evidence would indicate that money was available and, if available, the contract was not jeopardized for lack of money. A violation of Section 489.129(1)(h), Florida Statutes, is not proven.
Regarding the allegations that Respondent violated Section 489.129(1)(k), Florida Statutes, by abandoning the Gilligan project, the contract for that project was signed on October 15, 1980, and Respondent resigned from his position on December 15, 1980, approximately 30 days before
the project would be deemed abandoned. The alleged violation of Section 489.129(1)(k), Florida Statutes, is not proven.
Lastly, the Board charges Respondent with violation of Section 489.129(1)(g), Florida Statutes, which provides as follows:
The board may . . . the following acts:
(g) Acting in the capacity of a contractor under any certificate or registration issued hereunder except in the name of the certificate holder or registration, or in accordance with the personnel of the certificate holder or registrant as set forth in the applica- tion for the certificate or registration,
or as later changed as provided in this act.
There is no evidence that Respondent acted as a contractor under any certificate or registration issued by the Board. To the contrary, the facts show that SRWI did not register with or become certified by the Board. The alleged violation of Section 489.129 (1)(g) , Florida Statutes, is not proven.
The Board alleges the Respondent violated Section 489.129 (1)(j), Florida Statutes, by failing to register SRWI as required by Section 489.119(2), Florida Statutes. SRWI was not registered as required by Section 489.119(2), supra, which provides as follows:
If the applicant proposes to engage in contracting as a partnership, corpora- tion, business trust, or other legal entity, the applicant shall apply through a qualifying agent; the application shall state the name of the partnership and of its partners, the name of the corporation and of its officers and directors, the name of the business trust and its trust- ees, or the name of such other legal entity and its members; and the applicant shall furnish evidence of statutory com- pliance if a fictitious name is used. Such application shall also show that the qualifying agent is legally qualified to act for the business organization in all matters connected with its contracting business and that he has authority to supervise construction undertaken by such business organization. The registration or certification, when issued upon appli- cation of a business organization, shall be in the name of the qualifying agent, and the name of the business organization shall be noted thereon.
As president of the corporation, Respondent is accountable for the failure of SRWI to register, and the Board may hold him accountable under Section
489.129(1)(j), Florida Statutes. The Respondent is guilty of violating Section 489.129(1)(j), supra, as alleged.
RECOMMENDATION
Having found Respondent Robert W. Copenhaver guilty of violating Section 489.129(1)(j), Florida Statutes, it is recommended that the Construction Industry Licensing Board suspend the registration of Respondent as a general contractor for one year.
DONE and RECOMMENDED this 21st day of December, 1982, in Tallahassee, Leon County, Florida.
STEPHEN F. DEAN, 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 21st day of December, 1982.
COPIES FURNISHED:
Stephanie A. Daniel, Esquire Department of Professional
Regulation
130 North Monroe Street Tallahassee, Florida 32301
Mr. Robert W. Copenhaver 2409 34th Street, West Bradenton, Florida 33505
Samuel R. Shorstein, Secretary Department of Professional
Regulation
130 North Monroe Street Tallahassee, Florida 32301
K. Linnan, Executive Director Construction Industry Licensing
Board
Post Office Box 2 Jacksonville, Florida 32201
=================================================================
AGENCY FINAL ORDER
=================================================================
DEPARTMENT OF PROFESSIONAL REGULATION CONSTRUCTION INDUSTRY LICENSING BOARD
DEPARTMENT OF PROFESSIONAL REGULATION
Petitioner,
DOAH Case No. 82-1027
vs. Case Nos. 0017893, 0016952
0017221, 0017041
ROBERT W. COPENHAVER
Southwest Building and Development RG 0013968
2409 34th Street West Bradenton, Florida 33505
Respondent.
/
FINAL ORDER
This case came for final action by the Construction Industry Licensing Board on March 10, 1983, in Jacksonville, Florida. An administrative hearing held pursuant to 120.57(1), F.S., resulted in the issuance of a Recommended Order (attached hereto as Exhibit A) which was reviewed by the Board.
Petitioner filed exceptions to said Order. Upon consideration of the Recommended Order, Petitioner's Exceptions, and the complete record in the proceeding, it is ordered:
The findings of fact in the Recommended Order are approved and adopted and incorporated herein by reference.
The conclusions of law in the Recommended Order are approved and adopted and incorporated herein by reference except for the Hearing Officer's conclusion of law that there is no evidence that Respondent violated Section 489.129(1)(g), F.S. The Board adopts Petitioner's Exceptions to this conclusion of law and finds that sufficient evidence was presented at the hearing in this cause to show that Respondent acted as a contractor under a name other than on his certificate or registration. Southwest Roofing and Waterproofing Corporation, of which Respondent was the president, entered into four contracts to waterproof or to reroof existing roofs. Respondent signed three of the four contracts on behalf of Southwest Roofing and Waterproofing Corporation. The question arises as to whether the above-described activities constitute contracting as defined in Section 489.105, set forth below:
489.105 Definitions. - As used in this act:
"Contractor" means the person who is qualified for and responsible for the entire project contracted for and means, except as
exempted in this act, the person, who for compensation, undertakes to, submits a bid to, or does himself or by others construct, repair, alter, remodel, add to, subtract from or improve any building or structure, include related improvements to real estate, for others or for resale to others. Contractors are subdivided into two divisions, Division I, consisting of those contractors defined in paragraphs (d) - (m).
(e) "Roofing contractor means a contractor whose services are unlimited in the roofing trade and who has the experience, knowledge and skill to install, maintain, repair, alter, extend, or design, when not prohibited by law, and use materials and items used in the installation, maintenance, extension, and alterations of all kinds of roofing and waterproofing.
Respondent's activities, as described above, fall squarely within the definition of contracting and more narrowly, roofing contracting.
Evidence was presented at the hearing to show that the Respondent has never qualified Southwest Roofing and Waterproofing Corporation. Therefore, the Corporation is not listed on Respondent's registration. As the president of the corporation, Respondent is the party responsible for the activities of the corporation and accountable for the failure to qualify Southwest Roofing and Waterproofing with the Construction Industry Licensing Board. Inasmuch as Respondent failed to qualify Southwest Roofing and Waterproofing Corporation, prior to entering into said contracts, Respondent violated Section 489.129 (1)(g), Florida Statutes (1979).
The Board also adopts the Petitioner's exceptions directed to the Hearing Officer's failure to address the issue of whether Respondent was guilty of engaging in the business of roofing contracting without being duly registered. The Board finds that the facts presented by the Petitioner clearly demonstrate that the Respondent has not ever been registered or certified as a roofing contractor with the Construction Industry Licensing Board. Furthermore, the Respondent has never been licensed to engage in the business of roofing contracting in Sarasota County, Florida. The Respondent had a specialty limited roof-coating and spraying license only in Sarasota County, Florida. This specialty license was not registered with the Construction Industry Licensing Board by Respondent and only entitled Respondent to coat or spray a roof with paint or a decorative coating. The license in no way enabled Respondent to alter the existing membrane of the roof, to repair the roof or to "waterproof the roof.
Respondent's activities fall squarely within the definition of a roofing contractor, as provided above in Section 489.105(3)(e), Florida Statutes (1979). Respondent, while operating under the name Southwest Roofing and Waterproofing Corporation, entered into three contracts in Sarasota County, Florida, to repair leaks in the respective roofs by applying a "waterproofing process" or reroofing roofs. The process involved the alteration of an existing roof and/or the installation of a waterproof membrane. Under the provisions of Section 113.9(f) of Sarasota County Ordinance Number 78-102, the Respondent was required to
obtain a certificate of competency as a roofing contractor in order to waterproof roofs or to reroof homes. Respondent failed to obtain the necessary certificate of competency. Furthermore, Respondent was licensed as a registered general contractor only with the State of Florida.
Under the provisions of Section 489.117(2), Florida Statutes (1979), registration allows the registrant to engage in contracting only in the counties, municipalities, or development districts where he has complied with all local licensing requirements and only for the type of work covered by the registration. The evidence clearly shows that the Respondent failed to comply with the provisions of Section 489.117(2), Florida Statutes (1979), and therefore, violated Section 489.129(1)(j), Florida Statutes (1979).
The recommendation in the Recommended Order is rejected as inappropriate under the circumstances.
THEREFORE, it is ordered and adjudged that the registered general contractor's license of the Respondent be and the same is hereby revoked.
DONE and ORDERED this 29th day of March, 1983.
FLORIDA CONSTRUCTION INDUSTRY LICENSING BOARD
John Henry Jones, Chairman
Docket for Case No: 82-001027
Orders for Case No: 82-001027
| Issue Date |
Document |
Summary |
|
Mar. 29, 1983 |
Agency Final Order
|
|
|
Dec. 21, 1982 |
Recommended Order
|
Respondent should be suspended for one year for diversion, abandonment and failing to register his company.
|
