STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

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

)

Petitioner, )

)

v. ) CASE NO. 85-1131

)

LARRY P. ROFPMAN, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was held in the above case before the Division of Administrative Hearings by its duly designated Hearing Officer, Donald R. Alexander, on May 14, 1985, in West Palm Beach, Florida.

APPEARANCES

For Petitioner: W. Douglas Beason, Esquire

130 North Monroe Street Tallahassee, Florida 32301

For Respondent: Larry F. Hoffman, pro se

3060 Indian Trail

Lantana, Florida 33462 BACKGROUND

By administrative complaint filed on February 13, 1985, Petitioner, Department of Professional Regulation, Florida Construction Industry Licensing Board, has charged that Respondent, Larry F. Hoffman, a certified general contractor and residential contractor, had violated various provisions within Chapter 489, Florida Statutes. Generally, Petitioner has alleged that Respondent, while performing a construction job in Delray Beach, Florida in late 1983 and early 1984, failed to qualify the company under which he was doing business that he contracted beyond the scope of his certification, and that he

failed to timely and diligently honor a warranty thereby constituting fraud or deceit or gross negligence, incompetence or misconduct in the practice of contracting. According to the administrative complaint, this conduct constituted a violation of Subsections 489.115(2), 489.119(2) and (3), and 489.120(1)(m), Florida Statutes.

Respondent disputed the above allegations and requested a formal hearing pursuant to Subsection 120.57(1), Florida Statutes. The matter was referred to the Division of Administrative Hearings by Petitioner on April 11, 1985 with a request that a Hearing Officer be assigned to conduct a formal hearing. By notice of hearing dated April 24, 1985, the final hearing was scheduled for May 14, 1985, in West Palm Beach, Florida.

At final hearing Petitioner presented the testimony of Respondent and Maurino Palmieri and offered Petitioner's exhibits 1-5. All were received in evidence. Respondent testified on his own behalf and presented the testimony of Donald Bailey.

The transcript of hearing was filed on June 4, 1985.

Proposed findings of fact and conclusions of law were filed by Petitioner on June 24, 1985. A ruling on each proposed finding of fact has been made either directly or indirectly in this Recommended Order, except where such proposed findings of fact have been rejected as subordinate, cumulative, immaterial or unnecessary.

At issue herein is whether Respondent's licenses as a certified general contractor and certified residential contractor should be disciplined for the alleged violations set forth in the administrative complaint.

FINDINGS OF FACT

1. At all times relevant hereto, Respondent, Larry F. Hoffman, held certified general contractor license number CG C019686 and certified residential contractor license number CR C018801 issued by Petitioner, Department of Professional Regulation, Florida Construction Industry Licensing Board. He operates a general contracting firm at 3060 Indian Trail, Lantana, Florida.

   
   

2. On or about November 18, 1983, Hoffman entered into a contract with Maurino Palmieri to add a screened porch addition

   to Palmieri's residence located at 6227 Hitching Post Way, Delray Beach, Florida. The contract generally required Hoffman to construct a screen enclosure with a flat roof to the existing structure for a price of $2,500. The contract reflected that the contractor on the project was Hoffman Construction, a name under which Respondent has not qualified to do business.

   
   

3. Hoffman is not licensed to construct flat roofs in Palm Beach County. Because of this, he subcontracted the roofing work to American Roofing and Supply Association (American) in Delray Beach. According to Hoffman, American completed only one-half of the job and then filed for bankruptcy. Although Hoffman was not licensed to do the roof work, he finished the roof on the project.

   
   

4. The project was completed on February 1, 1984 and Palmieri paid Hoffman the full amount due. At that time, Hoffman warranted the roof "to be free of leaks one year" and provided a written warranty to evidence this representation. About three weeks later, a heavy rain occurred and leaks developed in the new room. After calling Hoffman to complain, Hoffman placed a tar composition on certain parts of the new roof in an effort to stop the leaks. The leaks continued to persist whenever it rained and Hoffman sent a helper to Palmieri's residence on two occasions. Both efforts to fix the roof were unsuccessful. Thereafter, Palmieri telephoned Hoffman's residence on many occasions but was unable to personally speak with Hoffman. Hoffman never returned his calls.

   
   

5. Palmieri eventually hired another roofer in October, 1984, to fix the leaks and discovered that flashing was missing in several areas. The repairs cost him $750. He has had no problem with his roof since that time.

   
   

6. Hoffman denied that he had failed to put all necessary flashing in the roof. He attributed the leak to the gable in the original structure rather than any defect in the roof on the new room. However, this contention is rejected as not being credible. Hoffman also acknowledged that he finished the roof even though he was not licensed to do so, but did so since he could not find another roofing company within a reasonable period of time, and knew Palmieri desired the project to be completed as soon as possible. Finally, he concedes that he did not qualify "Hoffman Construction" with the Construction Industry Licensing Board, but contended he was unaware of this

   requirement. He now understands the law and represents he will not violate this requirement in the future.

   
   

   CONCLUSIONS OF LAW

   
   

7. The Division of Administrative Hearings has jurisdiction of the subject matter and the parties thereto pursuant to Subsection 120.57(1), Florida Statutes.

   
   

8. Respondent is charged with violating three statutes in conjunction with the Palmieri project First, it is alleged that Hoffman contracted beyond the scope of his certification by doing the roof work on the job ( § 489.115 (1)(b), F. S.).1 Secondly, he is charged with fraud or deceit, or gross negligence, ineompetenee or misconduct by failing to honor his one-year warranty (§489.129~1)(m), F. S.). Finally, it is alleged that Hoffman failed to qualify "Hoffman Construction" while engaged in the Palmieri project 6489.119(2) and (3), F. S.).

   
   

9. The evidence is clear and convincing that Hoffman contracted beyond the scope of his certification and failed to qualify the business under which he was operating. Accordingly, it is concluded that Hoffman has violated Subsections 489.115(1)(b) and 489.119(2) and (3), Florida Statutes.

   However, the evidence is insufficient to establish that Hoffman intended to dishonor the one-year warranty on his workmanship when he gave the warranty to Palmieri. Indeed, he made an effort, although unsuccessful and somewhat abbreviated, to honor the warranty on three subsequent occasions. Therefore, it is concluded that no violation of Subsection 489.129(1)(m) has occurred.

   
   

10. Petitioner, through counsel, suggests that Respondent's license be suspended for one year, that a $1000 administrative fine be imposed, and that if $750 restitution to Palmieri is made, the suspension be lifted. This penalty is presumably premised on the assumption that Hoffman is guilty of all charges. Given the circumstances herein, and the fact that one of the charges must fail, an appropriate penalty is a $500 administrative fine, a suspension of his license for ninety days, said suspension to be lifted in the event Respondent furnishes evidence that restitution has been made to Palmieri

RECOMMENDATION

Based on the foregoing findings of fact and conclusions of law, it is

RECOMMENDED that Respondent be found guilty of violating Subsections 489.115(1)(b) and 489.119(2) and (3), Florida Statutes, that he be given a $500 administrative fine, and his license suspended for ninety days. In the event Hoffman makes restitution to Palmieri, and furnishes evidence of the same to the Board, the suspension should be lifted. The remaining charge should be dismissed.

DONE and ORDERED this 1st day of July, 1985, in Tallahassee, Florida.

DONALD R. ALEXANDER

Hearing Officer

Division of Administrative Hearings The Oakland Building

2009 Apalachee Parkway

Tallahassee, FL 32301

(904)488-9675

Filed with the Clerk of the Division of Administrative Hearings this 1st day of July, 1985.

ENDNOTE

1/ Although the complaint refers to Subsection 489.115(2), the proposed recommended order filed by Petitioner correctly relies on Subsection 489.115(1)(b), and it is assumed the former statute is a typographical error.

COPIES FURNISHED:

W. Douglas Beason, Esq.

130 N. Monroe St. Tallahassee, F1 32301

Larry F. Hoffman 3060 Indian Trail

Lantana, FL 33462

Docket for Case No: 85-001131

Orders for Case No: 85-001131