STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

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

)

Petitioner, )

)

vs. ) CASE NO. 87-2812

)

GERALDINE EVANS, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, this cause was heard by Linda M. Rigot, the assigned Hearing Officer of the Division of Administrative Hearings, on September 28, 1987, in Miami, Florida.

Petitioner Department of Professional Regulation, Construction Industry Licensing Board, was represented by G. Vincent Soto, Esquire, Tallahassee, Florida; and Respondent Geraldine Evans was represented by Harry E. Geissinger, Esquire, Hialeah, Florida.

Petitioner filed an Administrative Complaint against Respondent charging her with various violations of the construction contracting laws, and Respondent timely requested a formal hearing on those allegations. Accordingly, the issues for determination herein are whether Respondent is guilty of the allegations contained within the Administrative Complaint, and, if so, what disciplinary action should be taken against her, if any.

Petitioner presented the testimony of Richard Crisonino, Enrico Cano, and Celia Gipson. Respondent testified in her own behalf and presented the testimony of Thomas Evans. Additionally, Petitioner's Exhibits numbered 1-5 were admitted in evidence.

Although both parties requested leave to file post-hearing proposed findings of fact in the form of proposed recommended orders, only Petitioner did so. All of Petitioner's proposed findings of fact have been adopted either verbatim or in substance in this Recommended Order except for Petitioner's proposed finding numbered 1 which does not constitute a finding of fact but rather constitutes a conclusion of law.

FINDINGS OF FACT

1. At all times material hereto, Respondent has been a registered roofing contractor in Miami, Florida, having been issued license no. RC 0047352. Respondent is the qualifying agent for All Central Roofing, Inc.

2. In May 1986 All Central Roofing, Inc., entered into a contract with Richard Crisonino to perform certain roofing work on Crisonino's residence in Miami, Florida. The contract price was $3,374.

   
   

3. All Central Roofing, Inc., thereafter began the roofing work on Crisonino's residence without obtaining a permit for that work from the local building department and without posting a permit on the job site.

   
   

4. All Central Roofing, Inc., failed to obtain the required inspections by the local building department.

   
   

5. After completing part of the work involved and after receiving substantial payment under the contract, All Central Roofing Company, Inc., ceased work on the Crisonino residence and failed or refused to complete the work, thereby abandoning the job.

   
   

6. By her own admissions at the final hearing in this cause, Respondent does not possess a working knowledge of roofing or roofing contracting. She lacks even a basic fundamental understanding of roofing construction to the extent that it is impossible that she is fulfilling any of her responsibilities as a qualifying agent for All Central Roofing, Inc. Further, Respondent does not even know the number of employees working for All Central Roofing, Inc.

   
   

7. Respondent has been disciplined by the Dade County Construction Trades Qualifying Board, and Respondent's personal and business certificates have been revoked by that Board.

   
   

   CONCLUSIONS OF LAW

   
   

8. The Division of Administrative Hearings has jurisdiction over the subject matter hereof and the parties hereto. Section 120.57(1), Florida Statutes.

   
   

9. Section 489.129(1), Florida Statutes, authorizes Petitioner to take disciplinary action against a contractor or the business entity for which the contractor is a qualifying agent if the contractor is found guilty of any of the following acts:

   
   

   (d) Willful or deliberate disregard and violation of the applicable building codes or laws of the state or of any municipalities or counties thereof.

   * * *

   (i) Disciplinary action by any municipality or county ...

   * * *

   (k) Abandonment of a construction project in which the contractor is engaged or under contract as a con- tractor...

   * * *

   (m) Upon proof that the licensee is guilty of fraud or deceit or gross negligence, incompetency, or misconduct in the practice of contracting.

10. Petitioner has met its burden of proving that Respondent is guilty of violating section 489.129(1)(d), Florida Statutes, by failing to obtain a permit and by failing to obtain inspections on the Crisonino project. Similarly, Petitioner has met its burden of proving that Respondent is guilty of violating section 489.129(1)(i), Florida Statutes, since her business and personal certificates have been revoked by the Dade County Construction Trades Qualifying Board.

    
    

11. The evidence is uncontroverted that All Central Roofing, Inc., failed to complete the Crisonino project, and neither Respondent nor her husband who was in charge of the project knew whether the Crisonino project had ever been completed by anyone. Accordingly, Petitioner has proven that Respondent abandoned a construction project and, accordingly, violated section 489.129(1)(k), Florida Statutes.

    
    

12. Respondent's own testimony that she is not knowledgeable about how to perform roofing work, that she is "not a roofer," and that she does not even know how many employees are employed by All Central Roofing, Inc., together with the failure of her company to obtain permits prior to commencing work and to obtain inspections during the progress of that work, make it clear that Respondent is simply a figurehead being used by some individual to evade the requirements of Florida law. Such a sham clearly indicates that Respondent is guilty of misconduct in the practice of contracting as well as fraud and deceit and is therefore, guilty of violating section 489.129(1)(m), Florida Statutes.

    
    

13. In its proposed recommended order, Petitioner recommends that Respondent's registered roofing contractor license be revoked. Nothing less than revocation would be appropriate.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions of Law, it is,

RECOMMENDED that a Final Order be entered finding Respondent guilty of the allegations contained in the Administrative Complaint filed against her and revoking Respondent's registered roofing contractor license.

DONE and RECOMMENDED this 14th day of December, 1987, at Tallahassee, Florida.

LINDA M. RIGOT, 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 14th day of December, 1987.

COPIES FURNISHED:

Fred Seely, Executive Director Construction Industry Licensing

Board

Post Office Box 2 Jacksonville, Florida 32201

G. Vincent Soto, Esquire Department of Professional

Regulation

130 North Monroe Street Tallahassee, Florida 32399-0750

Harry E. Geissinger, Esquire

415 West 51st Place, Suite 201 Hialeah, Florida 33012

Tom Gallagher, Secretary Department of Professional

Regulation

130 North Monroe Street Tallahassee, Florida 32399-0750

Docket for Case No: 87-002812

Orders for Case No: 87-002812