STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

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

)

Petitioner, )

)

vs. ) CASE NO. 90-0495

) DPR NO. 107190

JAMES M. KINNAMON, )

)

Respondent. )

)

RECOMMENDED ORDER

Following the provision of notice a formal hearing was held in this case on May 1, 1990. The location of the hearing was the Richard P. Daniel Building,

111 East Coast Line Drive, Jacksonville, Florida. Authority for the conduct of the hearing is set forth in Section 120.57(1), Florida Statutes. Charles C. Adams was the Hearing Officer.

APPEARANCES

For Petitioner: George W. Harrell, Esquire

Department of Professional Regulation 1940 North Monroe Street

Tallahassee, Florida 32399-0792 For Respondent: Pro se, no attendance

STATEMENT OF ISSUES

This case concerns Petitioner's attempt to discipline the Respondent through an amended administrative complaint under DPR Case No. 107190. In this amended administrative complaint Respondent is charged-with the violation of Section 489.129(1)(c); Section 455.227(1)(b), Florida Statutes; and an unspecified Board rule for failure to properly update his address with the Construction Industry Licensing Board. He is also charged with having guaranteed a roofing job to a customer and not honoring that guarantee in violation of Sections 489.129(1)(j) and (m), Section 489.119 and Section 489.105(4), Florida Statutes. Respondent is charged with gross negligence, incompetence, misconduct and/or deceit in connection with this job, which is attributable to the Respondent or based upon his failure to properly supervise as evidenced by the failure to provide a reasonably watertight roof for the customer. Again these items are said to be in violation of the statutory provisions most immediately referenced.

PRELIMINARY STATEMENT

This case was scheduled to be heard at 10:00 a.m. on May 1, 1990, at the location previously described. Respondent was not in attendance by 10:15 a.m. and the hearing commenced. The hearing concluded at 11:05 a.m. The Respondent was never in attendance while the hearing was being conducted.

The hearing was held in view of the fact that the Respondent had elected a remedy, in the face of the amended administrative complaint, in which he sought a formal hearing as envisioned by Section 120.57(1), Florida Statutes.

Petitioner presented the testimony of Ida Lee Harris and Debra N. Manigault. Petitioner presented six exhibits which were received as evidence.

Petitioner's counsel has provided a proposed recommended order. That proposed recommended order together with the transcript and exhibits have been examined. The fact finding suggested in the proposed recommended order is commented on in an Appendix to this Recommended Order.

FINDINGS OF FACT

1. Chapters 120, 455 and 489, Florida Statutes, empower the Petitioner through the offices of the State of Florida, Department of Professional Regulation and Construction industry Licensing Board to license, investigate, prosecute and discipline Respondent.

   
   

2. At times relevant to the inquiry Respondent was a registered roofing contractor in Florida, through a license issued by the Construction industry Licensing Board, license No. RC 0053875.

   
   

3. The license history of the Respondent is set out in Petitioner's exhibit no. 1 admitted into evidence. He was first licensed as a registered roofing contractor in July, 1987. This was as an active status qualifying for James M. Kinnamon Roofing, 1928 Cesery Boulevard, Jacksonville, Florida 32211. That license was effective until June of 1988. On that date an active license was issued for Kinnamon Roofing Contracting at 4151 Woodcock Drive, Suite 202, Jacksonville, Florida 32207. The effective date of that licensure is from 1989 through 1991. At the time of the renewal an address change was given by Respondent indicating 6272 St. Augustine Road, No. 241, Jacksonville, Florida 32217 as the new address. The Petitioner's records reveal incorporation in Florida of Kinnamon Contracting Co. on October 30, 1987, as evidenced by the Articles of Incorporation certified by the State of Florida, Department of State.

   
   

4. In a separate disciplinary case in which probable cause had been found on August 15, 1989, Respondent received a letter of guidance.

   
   

5. Ida Lee Harris of 6138 Spirea Street, Jacksonville, Florida, needed her roof repaired. She received a proposal from Respondent on August 16, 1986, offering to repair the roof. A copy of that proposal may be found as Petitioner's exhibit no. 2 admitted into evidence. Through its terms Respondent and Ms. Harris agreed on a $2,900 price to complete the work. The proposal is shown as being from James M. Kinnamon Contractors of 1928 Cesery Boulevard, Jacksonville, Florida 32211. The proposal also gave a telephone number (904) 743-9728 attributable to the Kinnamon contracting business.

6. The contract contemplated that the existing roof would be torn off, that all trash and debris would be removed, that all rotten wood would be replaced, that a new roof would be installed, that all plumbing boots and vents would be replaced, that new metal flashing would be installed, and that the work was guaranteed for seven years as to workmanship and twenty years as to materials.

   
   

7. Ms. Harris borrowed the money to pay for these repairs and gave Respondent the $2,900 as her part of the bargain.

   
   

8. Respondent worked on the roof at the Harris home for a period of three to five days. About three weeks after he had finished the roof began to leak. Before the work was done by Respondent the leaks were in two places. After he did the work the leaks were in five additional places plus the original two.

   One of those leaks was between two bedrooms, a place that stayed wet all the time and there was water running down the walls as well. The affect was such as to ruin the ceiling. In the hallway every time it rained it was wet and the same problem was being experienced in the garage area. Things were worse in the areas where rotten pieces were falling down. The rotten wood that was falling was in the garage area.

   
   

9. The water settled in a puddle in the second bedroom area. In other places within the home that had been painted, there were water spots. The living room had water spots that appeared as if the water had been running. The ceiling in the living room was cracked as a result of the water damage.

   
   

10. In an attempt to correct the work Ms. Harris tried to call Respondent at the phone number shown on the proposal. She called twice and there was no answer. She called a third time and the phone had been disconnected temporarily.

    
    

11. Having been unable to reach the Respondent by telephoning him, Ms. Harris went to the Respondent's home about a month later. She arrived between 6:00 p.m. and 7:00 p.m. at night. Ms. Harris rang the doorbell and no one answered, although there was a light on in the house. This was an address that Respondent had taken Ms. Harris to and represented that this was his home. That visit had been made at the time that the original proposal was being executed. Ms. Harris waited for about an hour outside of the house in a car. No one came into the house. She never made contact with Respondent on that occasion.

    
    

12. Ms. Harris tried the telephone number again and was told that it was temporarily disconnected.

    
    

13. Ms. Harris went back to the Respondent's home on two other occasions. She was unable to contact him on those two occasions either.

    
    

14. Being unable to contact the Respondent, she made a complaint about the quality of the work. That complaint was made to Petitioner.

    
    

15. As a result of the complaint Respondent made contact with Ms. Harris in the summer of 1989. Through a conversation with Ms. Harris an amendment to the proposal was executed. At this time Respondent's proposal document was under Kinnamon Roofing Contracting Co., Inc., at 6271 St. Augustine Road, Suite 241, Jacksonville, Florida 32217 telephone number (904) 389-4961. A copy of the amended proposal executed by Respondent and Ms. Harris may be found as Petitioner's exhibit no. 4 admitted into evidence. It is dated June 29, 1989. It calls for patching and fixing the roof. It states that by law a warranty of

    ten years is required, but Respondent will warrant the roof for twenty years. It makes reference to an apology by Respondent for the problem of the leaks. It describes that if in one-half year Ms. Harris has more leaks he will put a new roof on free of charge.

    
    

16. In a conversation with Ms. Harris concerning this proposal Respondent suggested that he was going to patch the roof. Ms. Harris was not pleased with this solution and said that she did not wish the roof patched because it was leaking from the time that Respondent had done the roof work until the present. Respondent replied that while he recognized that Ms. Harris deserved a new roof that at that time he could not do it but that he was going to get the situation straightened up in any event. He told Ms. Harris that he was going to call the Construction Industry Licensing Board and tell them that everything was all right so that the Board would not have to be in touch with Ms. Harris anymore. Ms. Harris was not accepting of that and told him that this would not be an appropriate thing to do. Respondent commented again that he was going to do Ms. Harris right and do justice for her. She commented to the Respondent that if the roof was going to leak that she was not going to try to be in touch with the Respondent because he was hard to get in touch with. She suggested that Respondent make out a contract addressing the Contingency of continued leaks, by putting on a new roof. Respondent suggested that the obligation for a new roof would not come about until one year. Ms. Harris wanted that reduced to one-half year. This lead to the signing of the proposal which is Petitioner's exhibit no. 4 admitted into evidence.

    
    

17. The immediate attempt to repair the roof beyond the signing of the amended proposal was only to make a repair in one spot in a front room. This was an area that you walk into near the Florida room in the home. Respondent never did repair any other leaks. After having repaired the single leak Respondent told Ms. Harris he would come back and get the balance of the leaks and if there was going to be any further problem he would put a new roof on. He was also promised to fix any additional leaks that had not yet occurred.

    
    

18. After fixing the one leak, upon the next incident of rain the leaks were still there. In fact, matters got worse. Ms. Harris tried to telephone Respondent at the number on the amended proposal and as set out on a business card that he had given her, which is found as Petitioner's exhibit no. 5 admitted into evidence. When she reached that number she was told that it was not a working number. She tried calling two or three days later and received a blank sound. These attempts at contact began about five days after Respondent had attempted to repair the one place that was leaking.

    
    

19. Eventually, on April 19, 1990, Ms. Harris executed a contract with Sears and Roebuck and Company to repair the roof. This cost $4,691 additional dollars. A copy of that contract may be found as Petitioner's exhibit no. 6 admitted into evidence. Ms. Harris is paying for this work by Sears through an installment purchase plan. The work that Sears roofing repair had to do was work that should have been done under the contract with Respondent.

    
    

    CONCLUSIONS OF LAW

    
    

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

21. In the amended administrative complaint the Respondent is accused of failing to properly update his address with the Board in violation of Section 455.227(1)(b), and Section 489.129(1)(c), Florida Statutes. The former provision speaks to the ability of the Construction Industry Licensing Board to discipline Respondent for intentionally violating any rule adopted by the Board or the Department of Professional Regulation. The latter provision speaks of discipline by the Board for violations of Chapter 455, Florida Statutes. The allegation pertaining to failure to properly update the address also makes mention of a violation of a Board rule; however, that Board rule is not specified. Under these circumstances it is unclear what the Petitioner had in mind in its allegations sufficient to equate the references with the facts presented in this case. The result is that the Respondent cannot be found accountable for this violation. Moreover, in the proposed recommended order the prosecution has conceded this point.

    
    

22. Respondent is next said to have guaranteed the Harris job and failed to reasonably honor the guarantee, in connection with gross negligence, incompetence, misconduct and/or deceit in this relationship with Ms. Harris, which is attributable to his personal activities or those associated with the failure to supervise others in his charge. This is generally associated with the problems of his failure to provide a reasonably watertight roof.

    
    

23. As authority for these allegations reference is made to Section 489.105(4), Florida Statutes, which defines the idea of a "primary qualifying agent" to mean:

    
    

    "Primary qualifying agent" means a person who possesses the requisite skill, knowledge and experience, and has the responsibility, to supervise, direct, manage, and control the contracting activities of the business organization with which he is connected; who has the responsibility to supervise, direct, manage, and control construction activities on a job for which he has obtained the building permit; and whose technical and personal qualifications have been determined by investigation and examination as provided in this part, as attested by the department.

    
    

    The amended administrative complaint also looks to the definitional section under Section 489.119, Florida Statutes, dealing with business organizations and their qualifying agents as authority for the prosecution. In turn reference is made to Sections 489.129(1)(j) and (m), Florida Statutes, which state:

    
    

    1. The board may revoke, suspend, or deny the issuance or renewal of the certification or registration of a contractor, require financial restitution to a consumer, impose an administrative fine not to exceed $5,000, place a contractor on probation, require continuing education, assess costs associated with investigation and prosecution, or reprimand or censure a contractor if the contractor, or if the business organization for which the contractor is a primary qualifying agent or is a secondary qualifying

       agent responsible under s. 489.1195, is found guilty of any of the following acts:

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

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

          
          

          Respondent's performance on the Harris job evidenced fraud and deceit, incompetence and is indicative of misconduct in the practice of contracting. Thus he is susceptible to the penalties announced in Section 489.129(1), Florida Statutes.

          
          

          In particular, Respondent failed to complete the job in accordance with his agreement with Ms. Harris, failed to provide an adequate roof and failed to honor the terms of his warranty.

          
          

          The recommended penalty which would pertain to his acts of fraud and deceit, incompetence and misconduct are announced at Rule 21E-17.001(19)(b), Florida Administrative Code, which says:

          
          

          Causing monetary or other harm to licensee's customer, or physical harm to any person.

          First violation, $500 to $1500 fine; repeat violation, $1000 to $5000 fine and suspension or revocation.

          
          

          Rule 21E-17.002, Florida Administrative Code, speaks to matters in aggravation. Those terms which have relevance here are Rule 21E-17.002(1), (3) and (8), Florida Administrative Code. They speak to the amount of monetary damages to the licensee's customer that was not reimbursed by the Respondent.

          There were damages here in the sense that Ms. Harris had to hire another roofing firm to conclude the job. That amount, based upon this record has not been reimbursed by Respondent. Those aggravating circumstances also refer to the severity of the offense and physical damage. These matters in aggravation are posed against mitigating circumstances `associated with the length of time that the Respondent has practiced and the effect of the penalty upon Respondent's livelihood, as announced in Sections 21E-17.002(7) and (10), Florida Administrative Code, respectively. The effect on the livelihood is unknown.

          The amount of time practicing is a period of several years.

          
          

          The concept of repeat violations is identified in Rule 21E-17.003, Florida Administrative Code, where it states:

          
          

          1. As used in this rule, a repeat violation is any violation on which disciplinary action

             is being taken where the same licensee had previously had disciplinary action taken against him or received a letter of guidance in a prior case; and said definition is to apply (i) regardless of the chronological relationship of the acts underlying the various disciplinary actions, and (ii) regardless of whether the violations in the present and prior disciplinary actions are of the same or different subsections of the disciplinary statutes.

          2. The penalty given in the above list for repeat violations is intended to apply only

to situations where the repeat violation is of a different subsection of Chapter 489 than the first violation. Where, on the other hand, the repeat violation is the very same type of violation as the first violation, the penalty set out above will generally be increased over what is otherwise shown for repeat violations in the above list.

Petitioner has recommended a fine of $3000 and a one year suspension. That recommendation is in keeping with the guidelines set forth in Chapter 21E-17, Florida Administrative Code. It is an acceptable disposition.

RECOMMENDATION

Based upon a consideration of the facts, and in view of the conclusions of law, it is,

RECOMMENDED:

That a Final Order be entered which finds the Respondent in violation of Sections 489.129(1)(j) and (m), Florida Statutes, and imposes a $3000 fine and a one year suspension.

DONE and ENTERED this 30th day of May, 1990, in Tallahassee, Florida.

CHARLES C. ADAMS, 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 30th day of May, 1990.

APPENDIX CASE NO. 90-0495

Those fact proposals set forth in the Petitioner's proposed recommended order are subordinate to facts found.

COPIES FURNISHED:

Fred Seely, Executive Director Construction Industry Licensing

Board

Post Office Box 2 Jacksonville, FL 32202

George W. Harrell, Esquire Department of Professional

Regulation

1940 North Monroe Street Tallahassee, FL 32399-0792

James A. Kinnamon 1928 Cesery Boulevard

Jacksonville, FL 32211

James A. Kinnamon

4151 Woodcock Drive, Suite 202

Jacksonville, Florida 32207

James A. Kinnamon

6272 St. Augustine Road, No. 241

Jacksonville, FL 32217

James A. Kinnamon 2946 Downing Street

Jacksonville, FL 32205

Kenneth E. Easley, General Counsel Department of Professional

Regulation

1940 North Monroe Street Tallahassee, FL 32399-0792

Docket for Case No: 90-000495

Orders for Case No: 90-000495