STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

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

)

Petitioner, )

)

vs. ) CASE NO. 89-3290

)

HARRY BRADSHAW, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was conducted in this case on September 27, 1989, at Miami, Florida, before Claude B. Arrington, a duly designated Hearing Officer of the Division of Administrative Hearings.

Appearances of the parties at the hearing were as follows:

For Petitioner: David M. Gaspari, Esquire

Adams, Coogler, Watson & Merkel, P.A. Suite 1600 NCNB Tower

1555 Palm Beach Lakes Boulevard West Palm Beach, Florida 33402-2069

For Respondent: Harry Bradshaw, pro se

5590 East Seventh Avenue Hialeah, Florida 33013

STATEMENT OF THE ISSUES

Whether Respondent committed the offenses set forth in the administrative complaint and, if so, the penalty which should be imposed.

PRELIMINARY STATEMENT

This is a license discipline case in which the Petitioner seeks to take disciplinary action against the Respondent, a registered roofing contractor.

The Administrative Complaint filed by Petitioner against Respondent alleges that Respondent committed the following violations in connection with a job:

1. Undertook the job while his contracting license was suspended, and

   
   

2. Failed to perform in a reasonably timely manner and/or abandoned the

job.

The Administrative Complaint also alleges that the Respondent has been

previously disciplined.

At the final hearing, the Petitioner appeared through counsel and offered evidence in support of the allegations in the Administrative Complaint. The evidence consisted of the testimony of three witnesses and of six documentary exhibits, all of which were accepted into evidence. Respondent testified on his own behalf and called one additional witness. Respondent offered no documentary evidence.

A transcript of the hearing has been filed. Neither party has filed a post-hearing submittal.

FINDINGS OF FACT

1. At all times material to this case, the Respondent, Harry Bradshaw, was licensed as a registered roofing contractor in the State of Florida, holding license number RC 0033812.

   
   

2. On August 26, 1986, Respondent's license as a registered roofing contractor was suspended by Petitioner. Respondent's license remained suspended at all times material to this case.

   
   

3. On December 16, 1987, Respondent contracted with the Moose Lodge located in Hialeah, Florida, to reroof the Moose Lodge building. The proposal submitted by Respondent contained representations that Respondent was licensed as a registered roofing contractor and that he was insured. Respondent knew that his license as a registered roofing contractor was under suspension. Respondent had no insurance.

   
   

4. The contract between Respondent and the Moose Lodge provided that Respondent would perform the work and supply the materials for the sum of

   $6,200.00. The sum of $3,200.00 was paid to Respondent in advance of his beginning the job. Respondent used the sums advanced to purchase materials and supplies. The remaining $3,000.00 was to have been paid upon Respondent's completion of the job.

   
   

5. During the negotiations that resulted in the contract between Respondent and the Moose Lodge, Respondent represented that the job should be completed in time for the functions scheduled for New Year's Eve. While Respondent had purchased the materials needed for the job and had done a substantial amount of work on a portion of the roof, he was unable to complete the work by the New Year. Respondent was ordered to stop work on the job on January 26, 1988. Respondent did not abandon the job. Although he was slow in performing the work, a part of Respondent's delay in performance was caused by rain. There was no evidence as to what would have been a reasonable period of time for Respondent to have completed the job.

   
   

6. On January 26, 1988, the administrator for the Moose Lodge complained to the Building Inspection Department for the City of Hialeah, Florida, because the administrator was not pleased with the progress that Respondent was making toward completion of the job. The administrator was told by a representative of the Building Inspection Department on January 26, 1988, that Respondent had no license and that the required permit had not been pulled. The administrator was told to prohibit Respondent from working on the roof. Immediately thereafter, the administrator instructed Respondent to do no further work on the roof. The members of the Noose Lodge completed the job started by Respondent for less than

   $3,000.00, the balance of the amount that would have been owed Respondent if he had finished the job.

7. Respondent knew that a permit was required for this work. Respondent also knew that only a licensed roofing contractor could pull the required permit. Respondent proceeded with the job when he was unable to persuade a licensed roofing contractor to pull the permit for him.

   
   

8. Petitioner filed an administrative complaint against Respondent alleging that at the time he contracted with the Moose Lodge, Respondent's license was suspended, thus violating the provisions of Section 489.129(1)(j), Florida Statutes, and the provisions of Section 489.127(1)(e), Florida Statutes. The administrative complaint also alleged that Respondent failed to perform in a reasonably timely manner and/or abandoned the job in violation of Section 489.129(1)(m), Florida Statutes, and Section 489.129(1)(k), Florida Statutes.

   
   

9. Respondent denied the allegations of the administrative complaint and timely requested a formal hearing. This proceeding followed.

   
   

10. Respondent was previously disciplined by the Construction Industry Licensing Board, and his license remained under suspension at the time of the final hearing.

    
    

    CONCLUSIONS OF LAW

    
    

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

    
    

12. Section 489.127, Florida Statutes, provides, in pertinent part, as follows:

    
    

    1. No person shall:

       (e) Use or attempt to use a certificate or registration which has been suspended or revoked ...

       
       

13. Section 489.129(1), Florida Statutes, provides, in pertinent part, as follows:

    
    

    1. The board may revoke, suspend, or deny the issuance or renewal of the certificate or registration of a contractor, ... impose an administrative fine not to exceed $5,000, place a contractor on probation, ... or reprimand or censure a contractor if the contractor ... is found guilty of any of the following acts:

       * * *

       1. Failing in any material respect to comply with the provisions of this part.

       2. Abandoning 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 terminates the project without notification to the prospective owner and without just cause.

       * * *

       (m) Being found guilty of fraud or deceit or of gross negligence, incompetency, or misconduct in the practice of contracting.

       
       

14. Petitioner has the burden of proving by clear and convincing evidence that the Respondent committed the acts alleged in the administrative complaint. See Ferris v. Turlington, 510 So.2d 292 (Fla. 1989).

    
    

15. Petitioner has proved by clear and convincing evidence that Respondent violated the provisions of Section 489.127(1)(e), Florida Statutes. This violation was established by Respondent's contracting to perform services as a licensed registered roofer in the State of Florida at a time his licensure was suspended. Consequently, Respondent is subject to being disciplined pursuant to the provisions of Section 489.129(1)(j), Florida Statutes.

    
    

16. Petitioner did not establish that Respondent abandoned the job or that he failed to complete the job within a reasonable time in violation of Section 489.129(1)(m), Florida Statutes. Although Respondent was dilatory in completing the job, he did not abandon the job. Respondent was told not to complete the job after the administrator of the Moose Lodge learned that Respondent was not licensed and that he had not pulled the required permits. There was no evidence as to what period of time would constitute a reasonable time for completion of the job in light of the weather delays.

    
    

17. Rule 21E-17.001, Florida Administrative Code, sets forth the normal disciplinary guidelines that have been adopted by Petitioner. There is no specific guideline applicable to the violation which occurred in this case.

    
    

18. Respondent's clear violation of the licensing laws leads to the recommendation which follows.

RECOMMENDATION

Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that a final order be entered finding Respondent guilty of

having violated Section 489.127(1)(e), Florida Statutes, and Section

489.129(1)(j), Florida Statutes. It is further recommended that the final order revoke Harry Bradshaw's license in the State of Florida as a registered roofing contractor.

DONE and ENTERED this 31st day of October, 1989, in Tallahassee, Florida.

CLAUDE B. ARRINGTON

Hearing Officer

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 31st day of October, 1989.

COPIES FURNISHED:

Harry Bradshaw

5590 East Seventh Avenue Hialeah, Florida 33013

David M. Gaspari, Esquire

Adams, Coogler, Watson & Merkel, P.A Suite 1600 NCNB Tower

1555 Palm Beach Lakes Boulevard West Palm Beach, Florida 33402-2069

Kenneth E. Easley, General Counsel Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32399-0750

Fred Seely, Executive Director Department of Professional Regulation Construction Industry Licensing Board Post Office Box 2

Jacksonville, Florida 32201

Docket for Case No: 89-003290

Orders for Case No: 89-003290