STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF PROFESSIONAL )

REGULATION CONSTRUCTION )

INDUSTRY LICENSING B0ARD, )

)

Petitioner, )

)

vs. ) CASE NO. 83-1124

)

JOHN SNEED, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, James E. Bradwell, held a public hearing in this case on September 1, 1983, in Miami, Florida. The parties were afforded leave to submit posthearing memoranda. Petitioner's counsel has submitted a proposed Recommended Order which was considered by me in preparation of this Recommended Order. 1/ Petitioner's counsel waived the 30-day time requirement that a Recommended Order be entered within thirty days following the close of the hearing.

APPEARANCES

For Petitioner: Stephanie A. Daniel, Esquire

Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32301

For Respondent: No Appearance 2/

ISSUES

The issues presented herein are whether or not the Respondent's registered roofers contractors' license should be revoked, suspended, or otherwise disciplined based on allegations set forth in the Petitioner's Administrative Complaint filed herein signed February 21, 1983 alleging that Respondent unlawfully abandoned a construction project; diverted funds or property received for the completion of a construction project; made misleading, deceptive, fraudulent or untrue representation in the practice of contracting; was the subject of disciplinary action by a local licensing board and was guilty of misconduct in the practice of contracting, all within the moaning of Sections 489.129(1)(i),(h),(k),(m) and sections 455.227(1)(a), Florida Statutes (1981)

BACKGROUND

This case stems from two Administrative Complaints filed by the Petitioner against Respondent on February 21, 1983. Respondent, by separately executed Election of Rights forms, requested a formal hearing regarding the allegations

contained in both Administrative Complaints. By letter dated April 15, 1983, the matter was referred to this Division along with a request for a formal proceeding pursuant to Section 120.57(1), Florida Statutes. Both Administrative Complaints were assigned to the undersigned Hearing Officer in the above-styled cause and a notice of hearing dated July 28, 1903 was issued scheduling the matter for hearing on September 1, 1983. As stated, although properly noticed, Respondent failed to appear at the formal hearing.

The Petitioner presented as its witnesses Bill McDonald, Marcel J. Wiesner, John C. Leisinger, Dave Wells, and John Pine. Petitioner offered Petitioner's Exhibits 1 through 9, 11 through 22 and 25 through 28, all of which were received in evidence at the hearing.

FINDINGS OF FACT

1. At all times material to this proceeding, Respondent was a registered roofing contractor having been issued license number PC 0034672 in the name of John M. Sneed, Beall and Associates Roofing Corporation, 7650 SG 135 Street, Miami, Florida 33156. At all times material, Respondent was qualifier for Beall and Associates Roofing Corporation under his registered roofing contractor's license. (Petitioner's exhibit 1)

   
   

2. On April 22, 1982, Respondent entered a contract with Marcel and Goldy Wiesner to reroof the Wiesner home at 9225 Bay Drive, Surfside, Florida for a contract price of $4,915 less five percent. (Petitioner's Exhibit 5)

   
   

3. The Wiesners contacted the Respondent and Beall and Associates because of a coupon which Wiesner noticed in the Greater Miami Yellow Pages. The coupon provided for a 5 percent roofing discount on roofing work performed by Beall and Associates Roofing Corporation. (See Petitioner's Exhibit 6 and Testimony of Marcel J. Wiesner)

   
   

4. Under the terms of the contract entered into by the parties, Respondent was to complete the installation of roofing tiles on the Wiesner residence on or before May 30, 1992. The Wiesners had informed the Respondent that they would be leaving on vacation during June of 1982, and therefore wanted the roof- repairs completed prior to their departure for vacation. (Petitioner's Exhibit

   5 and Testimony of Marcel J. Wiesner)

   
   

5. On approximately May 3, 1982, Respondent applied for a building permit from the town of Surfside, Florida, for the repairs to the Wiesner roof. A permit, number 18697, was issued by the town of Surfside for the reroofing job on that same date. (See Petitioner's Exhibits 7 and 8)

   
   

6. Respondent immediately commenced construction on the Wiesner project on May 3, 1982. At that time, Respondent was given $2,457.50, which represented 50 percent of the contract price. On May 6, 1982, the Wiesners paid Respondent

   $1,253.75 making the total percentage of the contract price paid to date 79 percent inclusive of the 5 percent deduction referred to above.

   
   

7. During May of 1982, Respondent abandoned the Wiesners reroofing project and, at that time, the tin capping inspection had been performed and the project was approximately 60 percent completed. (Testimony of Marcel J. Wiesner and John Hahn, Town Clerk and Manager, Town of Surfside)

8. Respondent provided the Wiesners no prior notice of his in tent to abandon the reroofing of their residence and did not offer them any reasons for his failure to return to complete the project.

   (Testimony of Marcel Wiesner)

   
   

9. The Wiesners individually, and through their attorney, made numerous attempts to contact Respondent to return to complete the reroofing work to their residence without any success. The Wiesners therefore hired a second roofing contractor to complete the project. During the interim, the Wiesners had to repair the interior of their home which was water-damaged as a result of the Respondent's failure to complete the roofing project the started.

   
   

10. On approximately May 23, 1982, Respondent, as qualifier for Beall and Associates Roofing Corporation, contracted with John C. Leisinger to reroof the Leisinger home at 851 Heron Avenue, Miami Springs, Florida. Respondent agreed to install monterey tile on their "villa mission" style home. The contract price was $5,600. (See Petitioner's Exhibit 9 and Testimony of John C. Leisinger)

    
    

11. On July 14, 1982, Respondent received $2,800 representing one-half of the contract price to perform the reroofing to the Leisingers' home. On or about July 16, 1982, Respondent received an additional $1,719 from the Leisingers or a total of approximately 81 percent of the contract price. (Testimony of John Leisinger)

    
    

12. On or about July 16, 1982, Respondent applied for and received a roofing permit from the City of Miami Springs, Florida, for the reroofing work on the Leisingers' home. (Petitioner's Exhibit 11)

    
    

13. Between July 14 through 16, 1982, Respondent partially performed the roofing work on the Leisingers' residence.

    
    

14. After July 16, 1982, Respondent failed to return to the Leisingers' residence to complete the reroofing work despite numerous attempts by the Leisingers to get the Respondent to return. At the time that he left the Leisinger residence, Respondent had not installed the roofing tiles as required but left the roof in an exposed state. (Testimony of John C. Leisinger)

    
    

15. Respondent left the Leisinger reroofing project without notice to the Leisingers nor did he later provide them any reason for his failure to return to that project. At that time, Respondent had completed approximately seventy (70%) percent of the work required under the contract.

    
    

16. Respondent, however, did advise Mr. Leisinger that he was unable to complete the project at the original contract price because the price of the monterey tiles specified in the contract had increased. In this regard, Mr. Leisinger contacted the tile company that supplied the monterey tiles and was in formed that the price was unchanged during the period that Respondent would have purchased those tiles for the project. Further, Mr. Leisinger later purchased the same tiles specified in the contract at the same price contemplated by the parties.

    
    

17. Mr. Leisinger was left with the alternative and was forced to purchase the tiles and complete the roofing project himself when Respondent failed to return. (Testimony of John C. Leisinger)

18. During the course of time when the petitioner investigated a complaint filed by Mr. Leisinger with the Petitioner against the Respondent, Petitioner's Investigator, Bill McDonald, received a memorandum sent to all Building Officials in Metropolitan Dade County informing them that Respondent's business and personal Certificates of Competency, issued by Metropolitan Dade County, had been suspended by the Metro-Dade County Construction Trades Qualifying Board until such time as Respondent paid fines totalling one-thousand five-hundred dollars. (See Petitioner's Exhibit 12 and Testimony of Bill McDonald)

    
    

19. Based on information contained in the above memorandum, McDonald initiated a complaint against Respondent with regard to the disciplinary action by the Metro-Dade County Construction Trades Qualifying Board. In this regard, on February 11, 1982, the Dade County Construction Trades Qualifying Board, Division "A," considered a complaint filed by Peter Di Filippi against the Respondent. The Board found that there was at least a prima facie showing of violations of Chapter 10, Metropolitan Dade County Code of Ordinances. (Petitioner's Exhibit 13)

    
    

20. On or about May 17, 1982, the Building and Zoning Department for Metropolitan Dade County Construction Trades Qualifying Board would hold a hearing to determine whether the Respondent's business and personal Certificates of Competency as a roofing contractor, issued by Metropolitan Dade County, should be disciplined for various charges.

    
    

21. On July 8, 1982, the Metropolitan Dade County Construction Trades Qualifying Board considered several charges against Respondent and found that Respondent was guilty of several charges specified in a Complaint and the Board fined Respondent a total of one-thousand dollars to be paid within thirty days following the close of that hearing. The Board also issued a reprimand to Respondent based on those charges. (Petitioner's Exhibit 17)

    
    

22. On September 9, 1902, the local Metropolitan Dade County Construction Trades Qualifying Board considered other charges filed against the Respondent and as a result thereof found Respondent guilty of several charges and imposed a fine of $500 payable within 60 days following the close of the September 9, 1982 hearing. Also, the Board directed that Respondent's business and personal Certificates of Competency as a roofing contractor he suspended for a period of thirty days. (See Petitioner's Exhibits 21 and 22)

    
    

23. On or about February 7, 1903, John Leisinger obtained a Judgment in the amount of $3,665 plus costs and attorneys fees .. against Beall and Associates Roofing Corporation. The Judgment stemmed from the transaction referred to hereinabove between Leisinger and the Respondent. (Petitioner's Exhibit 28 and Testimony of John Leisinger)

    
    

24. On or about -May 23, 1983, Marcel Weisner obtained a Judgment in the amount of $10,440 against Beall and Associates Roofing Corporation end Respondent, jointly and severally. That Judgment was obtained based on the transaction referred to hereinabove between the Weisners and Respondent. (See Petitioner's Exhibit 27 and Testimony of Marcel J. Weisner)

    
    

    Respondent's Defense

    
    

25. As stated herein, the Respondent did not appear to offer testimony to refute or otherwise rebut the allegations of the Administrative Complaint filed herein.

    CONCLUSIONS OF LAW

    
    

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

    
    

27. The Respondent was duly noticed pursuant to the notice provisions of Chapter 120, Florida Statutes.

    
    

28. The Respondent, a registered roofing contractor, is subject to the disciplinary guides of Chapter 489, Florida Statutes.

    
    

29. The Petitioner, Construction Industry Licensing Board, is empowered to revoke, suspend or otherwise discipline the Certificate or Registration of a contractor if he is found to have violated the following provisions of Section 489.129(1), Florida Statutes (1981):

    
    

    (c) Violation of Chapter 455, Florida Statutes;

    1. Diversion of funds or property received for prosecution or completion of a specified con- struction project or operation when, as a result of the diversion, the contractor is or will be unable to fulfill the terms of his obligation

       or contract;

    2. Disciplinary action by any municipality or county which action shall be reviewed by the state board before the state board takes any disciplinary action of its own;

    (k) Abandonment of 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 ter- minates that project without notification to the prospective owner and without just cause; and

    (m) Upon proof and continued evidence that the licensee is guilty of misconduct in the prac- tice of contracting.

    
    

30. Competent and substantial evidence was offered Therein to conclude that the Respondent, based on his construction work done on behalf of the Weisners and the Leisingers, abandoned construction projects within the meaning of Section 489.129(1)(k) Florida Statutes (1981). It is so concluded.

    
    

31. Competent end substantial evidence was offered herein to conclude that the Respondent diverted funds received for the prosecution or completion of a specified construction project as relates to the Leisingers and the Meisners inasmuch as he received approximately 80 percent of the adjusted contract price for completion of the Weisner project and only performed 60 percent of the work required under the terms of the contract and thereafter abandoned it and, additionally, Respondent received approximately 81 percent of the contract price for completion of the Leisinger project and only performed 70 percent of the work required per the contract. Based therein, it is concluded that the Respondent thereby violated Section 489.129(1)(h), Florida Statutes (1981) based on his failure to return the excess monies to the Leisingers and the Meisners.

1. Competent and substantial evidence was offered herein to show that the Respondent was the subject of disciplinary action by the Metropolitan Dade

   County Construction Trades Qualifying Board on two occasions. The procedures taken by the Dade County Construction Trades Qualifying Board fully comported with the provisions of Section 10-15, Metropolitan Dade County Code of Ordinances, which authorizes the Board to take such action as set forth in the procedures. Respondent was afforded all due process rights generally accorded to a Respondent and he was thereafter advised of the action taken by the local Board subsequent to the imposition of the fines and suspensions of his Certificates of Competency. Based thereon, it is herein concluded that the Respondent violated Section 489.129(1)(i), Florida Statutes (1981)

   
   

2. Based on the foregoing findings and conclusions, it is herein concluded that the Respondent derivatively violated Section 489.129(1)(m), Florida Statutes (1981) based on the findings herein that he is guilty of misconduct in the practice of his profession.

   
   

3. Insufficient evidence was offered herein to establish that the Respondent made a false representation in the practice of his profession within the meaning of Section 489.129(1)(c), Florida Statutes (1981), as alleged.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is hereby recommended that the Respondent's registered roofing contractor's license be suspended for a period of five years and he be assessed a civil fine of

$2000.00 payable to Petitioner.

RECOMMENDED this 24th day of August, 1984, in Tallahassee, Florida.

JAMES E. BRADWELL, 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 25th day of August, 1984.

ENDNOTES

1/ To the extent that the Petitioner's proposed findings, etc. are not incorporated in this Recommended Order, said proposed findings, etc. were deemed either irrelevant, immaterial or not otherwise supported by record evidence.

2/ Although properly noticed, the Respondent, or a representative on his behalf, did not appear.

COPIES FURNISHED:

Stephanie A. Daniel, Esquire Department of Professional

Regulation

130 North Monroe St. Tallahassee, Florida 32301

John N. Sneed 1101 SW 32 Avenue

Miami, Florida 33136

James Linnan Executive Director

Construction Industry Licensing Board

P.O. Box 2

Jacksonville, Florida 32202

Docket for Case No: 83-001124

Orders for Case No: 83-001124