STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

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

)

Petitioner, )

)

vs. ) CASE NO. 84-0154

)

JOHN W. THORN, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, William B. Thomas, held a formal hearing in this case on March 21, 1984, in Deland, Florida.

APPEARANCES

For Petitioner: Edward C. Hill, Jr, Esquire

130 North Monroe Street Tallahassee, Florida 32301

For Respondent: None

By Administrative Complaint issued on November 29, 1983, the Respondent was charged with (1) acting as a contractor under a Certificate of Registration other than the name of the certificate holder or registrant, with (2) failing to properly qualify a company by which he engaged in contracting, with (3) making false representations in the practice of the profession of contracting, and with

1. violation of the applicable local building codes. The Department presented two witnesses in support of the Complaint, and introduced seven exhibits which were received in evidence.

   
   

   Nothing was presented by or on behalf of the Respondent.

   
   

   FINDINGS OF FACT

   
   

   1. The Respondent is a registered roofing contractor, having been issued license number RC 0020923.

      
      

   2. On may 27, 1982, the Respondent, doing business as T & T Roofing Company, contracted with Jessie Reid, 1021 Abeline Drive, Deltona, Florida, to replace an existing shingle roof for a total contract price of $2,406.20.

      
      

   3. At all times material hereto, the Respondent was registered with the Construction Industry Licensing Board as qualifying agency for A. L. Roofing Specialists. At no time has the Respondent qualified T & T Roofing Company.

   4. On August 26, 1982, when the Respondent completed work on Jessie Reid's roof, he was paid $2,406.20 which was the entire contract price for this job.

      
      

   5. The Respondent was to return to the job site to inspect the roof and correct minor remaining problems. However, when the Respondent would not return to the job, even after repeated calls, it was determined that there is a difference in shingle thickness at points on the roof, and the rain runs down over the gutters instead of into them. Further, the hip and ridge caps are of a different material than the major portion of the shingled roof; there are exposed nails; and the gutters are filled with roofing debris.

      
      

   6. The Respondent has not been responsive to communications and he has refused to make the necessary corrections to Jessie Reid's roof.

      
      

   7. The Respondent never obtained a permit for the reroofing work done for Jessie Reid at 1021 Abeline Drive, in Deltona. A permit is required to do reroofing work in Deltona, which is within the jurisdiction of Volusia County.

      
      

      CONCLUSIONS OF LAW

      
      

   8. The Division of Administrative Hearings has jurisdiction over the parties to and the subject matter of this case pursuant to Section 120.57(1), Florida Statutes, and Section 455.227(4), Florida Statutes.

      
      

   9. The 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:

      
      

      (d) violation of local codes

      (g) acting in the capacity of a contractor in a name other than that on his certificate or registration

      (j) failure to comply in a material respect with the provisions of Chapter 489, Florida Statutes.

      
      

   10. Further, Section 489.129(1)(c), Florida Statutes, empowers the Board to discipline a contractor's license if he is found to have violated the following provisions of Chapter 455.227(1), Florida Statutes:

       
       

       1. making misleading, deceptive, untrue or fraudulent representations in the practice of his profession.

          
          

   11. The Petitioner established through competent substantial evidence that the Standard Building Code was in effect in Volusia County in 1982, which requires that a permit be obtained prior to reroofing a home. The Petitioner established that the Respondent never obtained a permit to reroof Jessie Reid's house, and that he did reroof it and was paid for this work. Thus, the local building code was violated by the Respondent who continually and willfully evaded his responsibilities regarding this particular contract.

   12. The Respondent entered into the contract with Jessie Reid under the name T & T Roofing. The Respondent's license is held in the name of A. L. Roofing Specialists. Contracting is defined in 489.105(5), Florida Statutes, as engaging in business as a contractor. Section 489.105(3), Florida Statutes, further defines a contractor as:

       
       

       . . . 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, including related improvements to

       real estate, for others or for resale to others.

       
       

       Thus, under these statutory definitions and the facts presented, there is substantial competent evidence to support a finding that when the Respondent contracted as T & T Roofing he acted in a name other than on his certificate or registration.

       
       

   13. Section 489.119, Florida Statutes, requires a contractor to qualify every business entity through which he plans to contract. The Respondent was aware of his responsibilities under this provision, as he had previously qualified A. L. Roofing Specialists. Yet the Respondent did not qualify T & T Roofing when he engaged in the practice of contracting using this business entity. Therefore, the Petitioner has established through competent substantial evidence that the Respondent violated Section 489.119 and Section 489.129(l)(j), Florida Statutes.

       
       

   14. Section 489.129(1)(c), Florida Statutes, makes it a disciplinary infraction to violate Chapter 455, Florida Statutes. The Respondent's profession is that of a contractor, and he was engaged in the practice of this profession when he promised Jessie Reid that he would return to check his reroofing job and correct any deficiencies. The Respondent never returned even though there were repeated attempts to get him to do so. The Petitioner has established by competent substantial evidence that the Respondent made the representation to return to check his work, that this representation was made in the practice of his profession as a contractor, and that it was false. Thus, the respondent has violated the proscriptions of Section 455.227(1), Florida Statutes, against false, misleading, deceptive or fraudulent misrepresentations.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Registered Roofing Contractor's license number RC

0020923 held by the Respondent, John W. Thorn, be revoked.

DONE AND ENTERED this 30th day of May 1984 in Tallahassee, Florida.

WILLIAM B. THOMAS

Hearing Officer

Division of Administrative Hearings The Oakland Building

2009 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 30th day of May 1984.

COPIES FURNISHED:

Edward C. Hill, Jr., Esquire

130 North Monroe Street Tallahassee, Florida 32301

Mr. John W. Thorn Post Office Box 1897 Deland, Florida 32720

Docket for Case No: 84-000154

Orders for Case No: 84-000154