STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

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

)

Petitioner, )

)

vs. ) CASE NO. 84-1675

) (DPR No. 0041789)

JOHNNY C. FOSSET, )

)

Respondent. )

)

RECOMMENDED ORDER

Notice was given and a formal hearing was conducted in Room 409, Richard P. Daniels Building, 111 East Coast Line Drive, Jacksonville, Florida, commencing at 2:00 p.m., August 15 1984. Charles C. Adams was the Hearing Officer in this action. Petitioner in the person of counsel has offered a proposed recommended order. That proposal has been reviewed prior to the entry of the Recommended Order. To the extent that the proposal is consistent with the Recommended Order, it has been utilized. It is otherwise rejected as being contrary to facts found or based upon irrelevancy or immateriality.

APPEARANCES

For Petitioner: H. Reynolds Sampson, Esquire

Staff Attorney

Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 22301

For Respondent: No appearance.

ISSUE

The issues promoted in this cause are those set forth in the original Administrative Complaint and the amendment to that Administrative Complaint filed with the Division of Administrative Hearings on August 13 1984. In the complaint Respondent is accused of a violation of Section 489.129(1)(g), Florida Statutes)(1981) by failure in some material respect to comply with the provisions of Section 489.119(2) and (3), Florida Statutes (1981), by failing to properly qualify a business through which the licensee was engaged in the business of contracting. It is further alleged that Respondent violated Section 489.129(1)(g) Florida Statutes (1981) by acting in the capacity of a contractor under a name other than the name licensed by. Respondent is also said to have violated Section 489.129(1)(c), Florida Statutes (1981) by violating provisions of Section 455.227(1)(a), Florida Statutes (1981) in that he made misleading, deceptive, untrue or fraudulent representations in the practice of his profession. Finally, Respondent is said to have diverted funds received for the

prosecution or completion of the project, such that he was unable to fulfill the terms of his obligation or contract, thereby violating Section 489.129(1)(h), Florida Statutes (1981) and in that connection has abandoned the construction project in which he was a contractor without notification and without just cause in violation of Section 489.129(1)(k), Florida Statutes (1981).

FINDINGS OF FACT

1. Respondent, Johnny C. Fossett, is the holder of a license issued by the Florida Construction Industry Licensing Board in the field of registered roofing contractor. That license number is RC 0040728. Respondent is also the qualifying agent of J. C. Fossett Roofing & Maintenance Repair of 4978 Soutel Drive, Jacksonville, Florida. In addition to the Soutel address associated with

   J. C. Fossett Roofing & Maintenance Repair, Respondent has given the Florida Construction Industry Licensing Board the address 8937 Castle Boulevard, Jacksonville, Florida, as his address.

   
   

2. On June 10, 1983, Respondent entered into a contract with Roy J. Brinkman, to tear off an existing roof and install a flat built-up roof for a price of $3,195. In executing the proposal Respondent indicated that all work would be guaranteed by J. C. Roofing. J. C. Roofing is not an entity for which Respondent has gained recognition as a qualifying roofing contractor. The only company for which Respondent has gained qualification is the company J. C. Fossett Roofing & Maintenance Repair. Qualification or recognition is as given by the Florida Construction Industry Licensing Board.

   
   

3. Respondent also held himself out as being a representative of J & C Roofing & Painting, Maintenance & Repair. This entity was not one for which Respondent had acted as a qualifying roofing contractor

   
   

4. In conducting the work for Brinkman at 1126 Cesery Boulevard, Jacksonville, Florida, Respondent failed to obtain a needed building permit from the City of Jacksonville, Florida.

   
   

5. After Respondent undertook to do the roofing work, Brian experienced problems with that work. Respondent returned to affect repairs to leaks in the roof and was unsuccessful in those attempts. Subsequently, Brinkman received a court award against the Respondent related to Respondent's breach of the contract terms for roof installation. Fossett then offered to fix the roof properly. He outlined the materials that he would need to fix the Brinkman roof and Brinkman consented. Among the items necessary was the fabrication of certain material to be used as a gravel-stop. The fabricator of that item was to be a company known as Long & Schultz of Jacksonville Beach, Florida.

   Brinkman gave Fossett a check for $235 to be delivered to Long & Schultz for this material. A copy of that check may be found as Petitioner's Exhibit No. 8, admitted into evidence. The check was dated February 15, 1984. Respondent was to ;return with the grave 1-stop material arid to install it on the roof of the Brinkman building. This gravel-stop was as contemplated by the original contract of June 10, Respondent did not return with the material to complete the job at the Brinkman building. He did, however, pick up the gravel-stop material on February 16, 1984, and carry it away from the Long & Schultz business premises. The circumstances are such that it is concluded that the Respondent took the gravel-stop material which Brinkman had paid for and used it for some purpose other than the Brinkman job, leaving the terms of the contract unfulfilled.

   CONCLUSIONS OF LAW

   
   

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

   
   

7. Respondent violated the building codes for the City of Jacksonville, Florida, by failing to obtain a building permit for the Brinkman job. As a consequence, this was a violation of Section 489.129(1)(d), Florida Statutes (1981), by willful or deliberate disregard for that code.

   
   

8. Respondent violated Section 489.129(1)(j), Florida Statutes (1981) , by failing to comply with the provision of Section 489.112(2) and (3), Florida Statutes (1981), by failing to qualify J. C. Roofing or J & C Roofing, Painting & Maintenance Repair, names under which he was engaging in the business of roofing contracting.

   
   

9. Respondent violated Section 489.129(1)(g), Florida Statutes (1981), by acting in the capacity of a contractor in a name other than of his certificate of registration, by using those names referred to in the prior violation, instead of his own name or that of J. C. Fossett Roofing & Maintenance Repair.

   
   

10. Respondent violated Section 489.129(1)(c) , Florida Statutes (1981), by violating Section 455.227(1)(a), Florida Statutes (1981) , by the misleading and deceptive nature of this practice of the profession in taking money from Brinkman to purchase the gravel-stop and not returning and installing that material. In that connection, Respondent also diverted the funds to purchase the gravel-stop from the Brinkman project and by such diversion was unable to fulfill the terms of the contract, in violation of Section 489.129(1)(h), Florida Statutes (1981). By failing to return and complete the job, Respondent is found to have abandoned the construction project without notification, and without just cause in violation of Section 489.129(1)(k), Florida Statutes (1981).

    
    

11. Based upon the violations as found, Respondent is subject to the disciplinary action as set forth in Section 489.129(1), Florida Statutes (1981), as the aforementioned substantive A provisions remain in effect at present in Chapters 455 and 489, Florida Statutes (1983).

Having considered the facts and the conclusions of law reached, it is RECOMMENDED:

That a Final Order be entered which imposes a suspension of sixty (60) days for the violations found, to run concurrently with the penalty announced in DOAH Case No. 84-1674 (DPR No. 0037488)

DONE AND ENTERED this 26th day of September, 1984, at Tallahassee, Florida.

CHARLES C. ADAMS

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 26th day of September, 1984.

COPIES FURNISHED:

H. Reynolds Sampson, Esquire Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32301

Mr. Johnny Fossett 8937 Castle Boulevard

Jacksonville, Florida 32208

Mr. Johnny Fossett 4978 Soutel Drive

Jacksonville, Florida 32208

James Linnan, Executive Director Construction Industry

Licensing Board

Department of Professional Regulation Post Office Box 2

Jacksonville, Florida 32202

Fred M. Roche, Secretary Department of Professional

Regulation

130 North Monroe Street Tallahassee, Florida 32301

Docket for Case No: 84-001675

Orders for Case No: 84-001675