vs. ) CASE NO. 90-6684
THOMAS L. JENKINS, )
Respondent. )
Pursuant to notice, the above matter was heard before the Division of Administrative Hearings by its duly designated Hearing Officer, Daniel M. Kilbride, on January 10, 1991 in Tampa, Florida. The following appearances were entered:
For Petitioner: Craig M. Dickinson, Esquire
Whether Respondent violated various provisions of Section 489.129(1) by failing to pay for all roofing materials used on the North Orient Road job; by filing a false payment statement and by having his permitting privilege revoked by the City of Tampa Unified Construction Trades Board.
Respondent is a certified and registered roofing contractor licensed by Petitioner. Charged by Petitioner in an administrative complaint with various violations of Section 489.129(1), Florida Statutes, the Respondent requested a formal administrative hearing. This proceeding followed. The parties were requested in the Initial Order, dated November 6, 1990, to advise the Division of suggested dates and locations for the formal hearing. Respondent, who is currently living in Kentucky, replied in writing that he would not be able to attend any hearings in the Tampa, Florida area, due financial difficulty. It was determined that Tampa was the proper venue for the hearing in this matter and Respondent was notified of the date and location of the formal hearing by mail at the address provided by Respondent. Petitioner filed a motion to amend the Administrative Complaint. Respondent did not object and it appearing that
there would be no prejudice to Respondent the motion was granted. Prior to the hearing, the Department made reasonable efforts to contact Respondent without success. The hearing proceeded on the amended complaint.
At hearing, the Petitioner presented testimony of four witnesses, Edward W. Nabakowski, business owner, Robert L. Dykes, general contractor, William Darrow, City of Tampa Code Compliance Investigator, and Henry Rivera, Investigative Specialist, DPR. Sixteen evidentiary exhibits were admitted and the Hearing Officer took Official Notice of Section 489.129, Florida Statutes (1987) and (Supp. 1988); Chapter 88-156, Laws of Florida (1988); Chapter 21E-17, Florida Administrative Code. The Respondent did not appear and offered no evidence.
The transcript was not filed. Proposed findings of fact submitted by the Petitioner are addressed in the appendix to this recommended order. No proposed findings were received from the Respondent by the required deadline or at the time of the preparation of this recommended order.
The Petitioner is the Department of Professional Regulation charged, in conjunction with the Construction Industry Licensing Board, with the responsibility to prosecute administrative complaints pursuant to Chapters 489,
455 and 120, Florida Statutes, and the Rules promulgated pursuant to the statutes.
Respondent is and has been at all times material hereto, a certified roofing contractor and a registered roofing contractor in the State of Florida, having been issued license numbers CC CO39803 and RC 049317.
At all times material hereto, Respondent was the licensed qualifying agent for Jenkins Economy Roofing, Inc., for which Sharon K. Jenkins was an officer.
Ed Nabakowski is, and has been at all times material hereto, the owner of the real property and improvements thereon located at 2501 North Orient Road, Tampa, Hillsborough County, Florida. R. L. Dykes is, and has been at all times material hereto, a certified general contractor duly licensed by the State of Florida.
In the months proceeding July 1988, Nabakowski entered into a contract with Dykes wherein Dykes agreed to construct a commercial building upon Nabakowski's property on North Orient Road.
Pursuant to that contract, Dykes entered into a subcontract on July 6, 1988, with Respondent Jenkins, doing business as Jenkins Economy Roofing, Inc., wherein Jenkins agreed to construct the roof of the building.
Pursuant to the subcontract, Dykes agreed to pay Jenkins the sum of
$8,487.00 which payment included costs of all materials, supplies and labor.
Pursuant to the subcontract, Jenkins had the sole responsibility for ordering, arranging delivery to the site and paying for such materials and supplies as would be necessary for the construction of the roof.
Jenkins construction activities commenced on July 6, 1988 and were concluded within the time contemplated by the subcontract.
Greenbriar Building Materials, Inc., was, in July 1988, a supplier of building materials in Tampa, Florida. In connection with his construction of the roof, Jenkins ordered certain materials and supplies from Greenbriar which were delivered to the construction site.
The materials and supplies had not been altered in their form or substance in any discernable manner between the Greenbriar warehouse and the construction site.
Greenbriar maintained invoice records of the specific materials and supplies delivered to the job site. Greenbriar's records had three invoices for the North Orient Road site. The total sum of the three invoices was in the amount of $5,747.22.
The invoiced price of the materials and supplies was usual and reasonable. The materials and supplies listed on the Greenbriar invoices were of such nature and quantity as would normally be used in the construction of the particular roof structure of this project. The materials and supplies listed in the invoices were used for and exhausted in the construction of the roof.
By check dated August 8, 1998, Dykes paid Jenkins the sum of $6,790.00 as a draw against the total amount of the subcontract.
On August 15, 1988, and as a prerequisite to receiving the draw payment a document titled "Partial Waiver of Lien" was signed by Sharon K. Jenkins as Secretary for Jenkins Economy Roofing, Inc.
Under the terms of that document, Respondent warranted that " ... invoices for all materials, supplies and services provided by others ... arising out of work or items furnished to the described property, prior to the date hereto, have been paid."
Greenbriar recorded a Claim of Lien in the Official Records of Hillsborough County, Florida, on September 19, 1988, securing the debt for roofing materials delivered to the job site. The lien was in the exact amount of the sum of the three Greenbriar invoices, to wit: $5,747.22.
In the text of the Claim of Lien which was executed under oath by Greenbriar, Notice to Owner was certified as having been served on July 26, 1988.
There was not and has not been any dispute as to the validity of the lien and all interested parties have acted in accord with the lien's validity.
By certified letter dated September 28, 1988, Greenbriar made formal demand of the owner, Nabakowski, for payment of the amount of the Claim of Lien under threat of foreclosure.
Nabakowski communicated with Dykes and in accord with professional responsibility, Dykes paid the full amount of the debt due to Greenbriar.
Dykes payment to Greenbriar resulted in the satisfaction of the lien against the owners property on December 12, 1988.
Dykes was financially harmed by paying the amount necessary to secure the satisfaction of the lien against the owner's property. It caused him to twice pay for the same building materials, since he had already paid Jenkins the amount necessary to pay Greenbriar at the time of his drab on August 8, 1988.
Jenkins Economy Roofing had not paid the debt due to Greenbriar for materials supplied to this job at the time of signing the Partial Waiver of Lien.
Jenkins Economy Roofing, Inc., did not pay the debt due to Greenbriar for materials supplied to his job site at any time thereafter.
Pursuant to a formal complaint filed by Dykes on September 21, 1988, the City of Tampa, Code Compliance Section, conducted an investigation of Jenkins's transactions relative to the construction project on North Orient Road.
As a result of the investigation, Jenkins was charged with violations of the City of Tampa Code, Chapter 25, Sections 25-101(6),(7),(19) and (22). A disciplinary action against Respondent was scheduled for hearing before the Unified Construction Trades Board. Respondent was notified of the disciplinary action hearing by certified mail.
Respondent failed to respond to or appear at the City of Tampa disciplinary action.
Pursuant to evidence produced at the hearing on January 3, 1989, the Unified Construction Trade Board unanimously determined that Respondent was guilty of violating City of Tampa Codes and disciplined Respondent by permanently revoking his permitting privileges.
Respondent was notified of this local disciplinary action in writing and was verbally advised of his rights to appeal and the appellate review procedure by Darrow in a subsequent telephone conversation. Respondent did not appeal the local discipline.
In Department of Professional Regulation v. Thomas L. Jenkins, DPR Case No. 89-903, which is an unrelated disciplinary action case, the Construction Industry Licensing Board entered a Final Order on November 28, 1990, finding Respondent guilty of violating local building codes, being disciplined by any municipality and misconduct in the practice of contracting, i.e., violations of Section 489.129(1)(d),(e) and (m). The Final Order imposed a fine of $2,500.00 against Respondent and ordered that his license CC CO39803 be suspended until the fine is paid.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the subject matter of this proceeding, and the parties thereto, pursuant to Subsection 120.57(1), Florida Statutes.
The allegations of Petitioner's Amended Administrative Complaint are governed by Florida Statutes 1987.
Section 489.129(1), Florida Statutes (1987), provides in pertinent part:
The Board may revoke, suspend, or deny the issuance or renewal of the certificate or registration of a contractor and impose an administrative fine not to exceed $5,000.00 if the contractor, or if the business entity or any ... officer ... (if a
business entity for which the contractor is a qualifying agent, is found guilty of and of the following acts:
(d) Willful or deliberate disregard and violation of the applicable building codes or laws of the state ....
Financial mismanagement or misconduct in the practice of contracting that causes financial harm to a customer. Financial mismanagement and harm occurs when:
Valid liens have been recorded against the property of a contractors customer for supplies or services ordered by the contractor for the customer's job; the contractor has received funds from the customer to pay for the supplies or services; and the contractor has not had the liens removed from the property, by payment car by bond, within 30 days after the date of such liens.
Disciplinary action by any municipality or county...
Signing a statement with respect to a project or contract ... falsely indicating that payment has been made for ...
materials which results in a financial loss to the owner, purchaser or contractor ...
(m) Upon proof that the licensee is guilty of fraud or deceit or of ... misconduct in the practice of contracting.
Respondent is the qualifying agent for Jenkins Economy Roofing, Inc., and as such is responsible for the acts of that business entity and its officers.
The standard of proof in a license revocation hearing is "clear and convincing proof." Ferris v. Turlington, 510 So.2d 292 (1987).
The building code which is applicable to this project is Chapter 25, City of Tampa Code, Tampa, Florida.
The evidence is clear and convincing that Respondent violated Section 489.129(1)(d), Florida Statutes, as alleged in Count I of the Amended Administrative Complaint, by willfully and deliberately violating four provisions of the City of Tampa Code, specifically Chapter 25-101 subsections:
Diversion of funds
Failure to pay materialman
(18) False payment statement
(22) Fraud, deceit, misleading, or untrue statement
Respondent violated Section 489.129(1)(i), Florida Statutes, as alleged in Count III of the Amended Administrative Complaint, by being disciplined by the Unified Construction Trades Board, City of Tampa, on January 3, 1989, for violations of Chapter 25-1-1(6)(7)(19) and (22), City of Tampa Code.
Respondent violated Section 489.129(1)(h), Florida Statutes, as alleged in Count II of the Amended Administrative Complaint by failing to pay for materials and supplies which Respondent ordered for the project, allowing a valid lien to be recorded against the customer's property. Having received funds from the customer by way of the general contractor, the Respondent failed to have the lien removed from the property by making proper payment within thirty days of the lien.
Respondent violated Section 489.129(1)(e), Florida Statutes, as alleged in Count IV of the Amended Administrative Complaint, by causing or allowing an officer of the business entity to sign the "Partial Waiver of Lien" which falsely indicated that payment had been made for all materials supplied to the job. In fact, invoices from Greenbriar Building Materials, Inc., had not been paid. This action then resulted in a financial loss to the general contractor who had to directly pay the face amount of the invoices in addition to having previously paid Respondent for those same materials.
Respondent violated Section 489.129(1)(m), Florida Statutes, as alleged in Count V of the Amended Administrative Complaint, by being guilty of fraud, deceit and misconduct in the practice of contracting in that Respondent received the August 15, 1988 payment for services and materials under fraudulent and deceitful representations, failed to honor the terms of his subcontract with the general contractor, failed to pay the supplier of his materials, diverted funds paid to him from their proper application and violated the local building code.
The violations herein adjudged against Respondent constitute repeat violations for the purposes of disposition inasmuch as Respondent was the subject of disciplinary action DOAH Case No. 89-903 by the Construction Industry Licensing Board which resulted in a Final Order being entered against Respondent on November 28, 1990, wherein Respondent was fined $2,500.00, and his license CC CO39803 was suspended until such time as the fine is paid.
Section 21E-17.001, Florida Administrative Code, provides in pertinent part:
The following guidelines shall be used in disciplinary cases, absent aggravating or mitigating circumstances and subject to other provisions of this Chapter:
(20) 489.129(1)(d): Violation of state or local laws. First violation, $250 to $750 fine. Repeat violation, $1,000 to $3,000 fine.
(10) 489.129(1)(h): Diversion of funds. First violation, $750 to $1,500 fine; repeat violation, revocation
(16) 489.129(1)(i): Local disciplinary action. Use penalty herein listed for the violation most closely resembling the act underlying the local discipline; repeat violation, same method, use the penalty for repeat violation.
(9) 489.129(1)(1): False payment statements.
Liens were filed ... first violation
$250 to $750 fine; repeat violation 1 year suspension and $1000 to $3000 fine.
Same, but only injury was to another contractor of supplier. First violation,
$250 to $750 fine.
(19) 489.129(1)(m): ... misconduct, fraud or deceit
(b) causing monetary or other farm to licensee's customer ... first violation
$500 to $1,500 fine; repeat violation $1000 to $5000 fine and suspension or revocation.
Section 21E-17.002, Florida Administrative Code, provides in pertinent part:
Circumstances which may be considered for the purpose of mitigation or aggravation of penalty shall include, but are not limited to the following:
Monetary or other damage to the licensee's customer, in any way associated with the violation, which damage the licensee has not relieved, as of the time the penalty is to be assessed.
(3) The severity of the offense.
The number of repetition of offenses.
The number of complaints filed against the licensee.
(10) The effect of the penalty upon the licensee's livelihood.
Section 21E-17.003, Florida Administrative Code, provides in pertinent part:
As used in this rule, a repeat violation is any violation on which disciplinary action is being taken where the same licensed 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 the same or different subsections of the disciplinary statutes.
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.
Section 21E-17.005, Florida Administrative Code, provides in pertinent part:
Where several of the above violations shall occur in one (case) ... the penalties shall normally be cumulative and consecutive.
Respondent is guilty of all five charges alleged in the Amended Administrative Complaint.
Because of the prior disciplinary action occurring in Department of Professional Regulation Case No. 89-903, each of the five violations alleged in the instant case are to be regarded as repeat violations thereby involving increased penalties.
The violations alleged in Counts I, III and V of the instant case are the "very same type of violation as the first violation" thereby causing the penalty "be increased over what is otherwise shown for repeat violations." Rule 21E-17.003, Florida Administrative Code.
Additionally, there are several aggravating circumstances, notably that of Rule 21E-17.002(1), Florida Administrative Code, in that Respondent allowed the licensee's customer to suffer both monetary and other damage and has not relieved such damage as of this time; and that Respondent has consistently failed to evince any significant responsibility in regards to the three independent disciplinary actions cited herein by failing to respond, appear or answer the charges.
Consequently, the penalties for each of the violations should be set at the maximum limit of the guidelines and the Respondent's licenses should be revoked.
This is a disciplinary action against both licenses held by Respondent.
Therefore, Petitioner recommends that the disposition of this case be revocation of the Respondent's licenses CC CO39803 and RC 0049317.
Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that a final order be entered finding the Respondent guilty of
violations of Counts I through V of the Amended Administrative Complaint. It is
FURTHER RECOMMENDED that the Board REVOKE the Respondent's license as a certified roofing contractor, number CC C039803, and as a registered roofing contractor, number RC 0049317, in accordance with disciplinary guidelines set forth in Rule 21E-17.001, Florida Administrative Code.
DONE AND RECOMMENDED this 25th day of February, 1991, in Tallahassee, Leon County, Florida.
DANIEL M. KILBRIDE
Filed with the Clerk of the Division of Administrative Hearings this 25th day of February, 1991.
The following constitutes my specific rulings, in accordance with section 120.59, Florida Statutes, on findings of fact submitted by the parties.
Petitioner's Proposed Findings of Fact.
Accepted in substance: paragraphs 1-47.
Respondent's Proposed Findings of Fact.
Respondent did not submit proposed findings of fact.
Craig M. Dickinson, Esquire Department of Professional
Thomas L. Jenkins HC 73, Box 3035
All parties have the right to submit written exceptions to this Recommended Order. All agencies allow each party at least 10 days in which to submit written exceptions. You should contact the agency that will issue the final order in this case concerning agency rules on the deadline for filing exceptions to this Recommended Order. Any exceptions to this Recommended Order should be filed with the agency that will issue the final order in this case.
