STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF BUSINESS AND ) PROFESSIONAL REGULATION, )

CONSTRUCTION INDUSTRY )

LICENSING BOARD, )

)

Petitioner, ) Case No. 96-3713

)

vs. )

)

KENNETH G. STEEPROW, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Administrative Law Judge, Susan B. Kirkland, held a formal hearing in this case on April 18, 1997, in Boca Raton, Florida.

APPEARANCES

For Petitioner: William S. Cummins

Senior Attorney

Department of Business and Professional Regulation

1940 North Monroe Street Tallahassee, Florida 32399-0792

For Respondent: Kenneth G. Steeprow, pro se

5985 Acme Avenue

Port St. John, Florida 32927 STATEMENT OF THE ISSUES

Whether Respondent violated Sections 489.129(1)(e),(m), Florida Statutes (Supp. 1988), and Section 489.129(1)(r), Florida Statutes (1993), and if so, what penalty should be imposed.

PRELIMINARY STATEMENT

On May 10, 1995, Petitioner, Department of Business and Professional Regulation, Construction Industry Licensing Board (Department), filed a four-count administrative complaint, alleging that Respondent, Kenneth G. Steeprow (Steeprow), violated Sections 489.129(1)(e),(g),(m), Florida Statutes

(1988 Supp.), and Section 489.129(1)(r), Florida Statutes (1993). Steeprow requested an administrative hearing, and the case was referred to the Division of Administrative Hearings for assignment to an administrative law judge on August 8, 1997.

The final hearing was scheduled for November 1, 1996. On September 27, 1996, Petitioner filed a Motion to Continue and Hold in Abeyance, stating that it was Petitioner’s belief that Steeprow had filed a Chapter 7 Bankruptcy proceeding. The case was continued and held in abeyance until December 11, 1996, when the final hearing was rescheduled for April 18, 1997.

On March 13, 1997, Petitioner filed a Motion to Amend Complaint, which eliminated the allegations that Steeprow violated Section 489.129(1)(g), Florida Statutes (Supp. 1988). Steeprow did not file an objection to the motion. The Motion to Amend the Administrative Complaint was granted, and the Amended Complaint was deemed filed on March 19, 1997.

Petitioner filed a Motion for Protective Order relating to certain requests to produce, served by Respondent. The motion was heard and granted at the beginning of the final hearing.

At the final hearing, Petitioner called Laura Boyle and Les Knopf as its witnesses. Petitioner’s Exhibits 1-18 were admitted in evidence. Respondent testified in his own behalf and called Donald Eskew as his witness. Respondent’s Exhibits 1-15 were admitted in evidence.

The parties agreed to file proposed recommended orders within ten days of the filing of the transcript. The transcript was filed on August 19, 1997. Petitioner filed its proposed recommended order and final argument on August 15, 1997.

Respondent filed his final argument on August 27, 1997.

FINDINGS OF FACTS

1. Petitioner, Department of Business and Professional Regulation, Construction Industry Licensing Board (Department), is the state agency charged with the responsibility to prosecute administrative complaints pursuant to Chapters 489, 455, and 120, Florida Statutes.

2. At all times material to this proceeding, Respondent, Kenneth G. Steeprow (Steeprow), was licensed as a certified roofing contractor in the State of Florida, having been issued license number CC C036974. He is registered to do business individually, and his license is currently inactive.

3. On April 23, 1987, Ken Steeprow Roofing applied for an extension of credit with Gory Associated Industries, Inc. (Gory). The application listed Ken Steeprow as the owner of Ken Steeprow Roofing. A copy of Steeprow's individual roofing contractor

   certificate was included with the application. Also included with the credit application was a guaranty signed by Steeprow and his wife for credit extended to Ken Steeprow Roofing.

4. On November 15, 1988, Steeprow Enterprises, Inc. was formed as a Florida corporation. The president of the company was Steeprow, and the secretary/treasurer of the company was Steeprow's wife, Tamara Cherry Steeprow.

5. Steeprow did not qualify Steeprow Enterprises, Inc., as required by Sections 489.119 and 489.1195, Florida Statutes.

6. Steeprow admitted at hearing that he operated Steeprow Enterprises, Inc., during 1989. Steeprow also admitted at hearing that it had been his practice to sign building permit applications in blank and that the secretaries for the company would type in the name of Steeprow Enterprises, Inc., on the application forms. These application forms were used to pull building permits for Steeprow Enterprises, Inc.

7. On February 22, 1989, Gory sent a letter to Ken Steeprow Roofing to the attention of Steeprow, requesting that Steeprow review the information from its customer file and verify whether the information was accurate. On March 9, 1989, Gory received a response, advising that the firm's name was Steeprow Enterprises, Inc., and including a completed application for extension of credit for Steeprow Enterprises, Inc. The contractor's license number listed on the credit application was CC C036974.

8. At the time of the application, Tamara Steeprow signed an agreement for extension of credit on behalf of Steeprow Enterprises, Inc. The agreement included the following provisions:

   We agree to notify Gory Associated Industries, Inc. immediately in the event of a change of ownership or in the form of our business. We further agree that any goods or merchandise purchased from Gory Associated Industries, Inc. shall remain the property of Gory Associated Industries, Inc. until payment is received for said merchandise and goods by Gory.

   BLANKET CERTIFICATE OF RESALE STATEMENT

   
   

   This is to certify that all material, merchandise, or goods purchased by the undersigned from Gory Associated Industries Inc. is purchased for the purpose of

   ROOFING CONSTRUCTION

   and is purchased under certificate number

   . This certificate shall be considered a part of each order which we shall give provided such order contains our certificate number. This certificate is to continue in force until revoked.

   
   

9. Although the certificate number is blank in the agreement, the credit application included a copy of the certificate for Kenneth Steeprow as a roofing contractor, license number CC C036974.

10. On March 9, 1989, Kenneth Steeprow and Tamara Steeprow signed a guaranty for the extension of credit to Steeprow Enterprises, Inc. The guaranty provided:

    THE UNDERSIGNED, herein jointly and severally referred to as Guarantor, makes this agreement with Gory Associated Industries, Inc., or divisions thereof, herein referred

    to as Creditor, with respect to credit extended and to be extended to STEEPROW ENTERPRISES INC. herein referred to as Debtor.

    For valuable consideration Guarantor does hereby unconditionally guarantee to Creditor, its successors and assigns, prompt and punctual payment of the full amount, including accrued interest, of any and all obligation, indebtedness or liability, whether arising before or after the date hereof, and whether primary or secondary, (herein referred to as "liabilities") of Debtor to Creditor from time to time and at all times hereof and hereafter without limitation as to amount, together with interest, and all expenses of collection, costs and reasonable attorney's fees, whether suit be instituted or not.

    * * *

    The obligations hereunder shall be continuing and irrevocable except as herein provided.

    Revocation may be made by thirty (30) days notice in writing signed by Guarantor and delivered to Creditor, in person or by certified mail only. Any notice shall not effect or impair in any manner whatsoever the obligations of this Guaranty as to liabilities of the Debtor to Creditor existing or committed at or before the time such notice becomes effective.

11. On March 18, 1989, Steeprow resigned as President of Steeprow Enterprises, Inc., and was replaced by his wife.

12. The stock in Steeprow Enterprises, Inc., was sold to Erick Holland on or about January 1, 1990. Erick Holland was not licensed as required by Chapter 489, Florida Statutes.

13. In July, 1991, Monier Roofing Tile, Inc. (Monier), acquired Gory and became the assignee of contract rights and accounts receivable of Gory.

14. Steeprow Enterprises, Inc., ordered roofing supplies

    from Monier from November 1991 through June 1992 and defaulted in making payments for the roofing materials. In November 1992, Monier brought suit in the Circuit Court of Broward County, Florida, Case Number 92-28733(21), against Steeprow Enterprises, Inc., Steeprow, and Tamara Cherry Steeprow for the money owed by Steeprow Enterprises, Inc.

15. A summary judgment in the aggregate amount of

    
    

    $21,548.09 was entered August, 3, 1993, against all defendants, including Steeprow.

    
    

16. The defendants appealed the summary judgment. The Fourth District Court of Appeal rendered an opinion on

    October 26, 1994, affirming the trial court's decision, stating specifically that as to the individual defendants, including Steeprow, their pleadings and affidavits were deficient and even if construed as an attempt to raise affirmative defenses failed to state a viable defense.

17. The case was remanded to the trial court for the assessment of attorney's fees, and on February 14, 1995, a final judgment was entered, awarding Monier attorney's fees in the amount of $6,600 against all defendants.

18. In May or June 1996, Steeprow filed a voluntary petition in bankruptcy in the United States Bankruptcy Court, Southern District of Florida, Case Number 96-32243. The petition was dismissed on Steeprow's motion on January 10, 1997.

19. The judgments remain unpaid. Steeprow stated at the hearing that he does not intend to pay the judgments.

20. A reasonable time within which to satisfy a judgment is ninety days.

    CONCLUSIONS OF LAW

    
    

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

22. In Count I of the Administrative Complaint, the Department alleges that Respondent violated Sections 489.129(1)(e), Florida Statutes (Supp. 1988). Count III of the Administrative Complaint alleges that Respondent violated Section 489.129(1)(m), Florida Statutes (Supp. 1988). These statutory sections provide:

    1. The board may revoke, suspend, or deny the issuance or renewal of the certificate or registration of contractor, require financial restitution to a consumer, impose an administrative fine, not to exceed $5,000, place a contractor on probation, require continuing education, 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:

       * * *

       (e) Performing any act which assists a person or entity in engaging in the prohibited uncertified and unregistered practice of contracting, if the certificate holder or registrant knows of or has reasonable grounds to know that the person or entity was uncertified and unregistered.

       * * *

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

       
       

23. The Department has established by clear and convincing evidence that at the time that Steeprow Enterprises, Inc., applied for an extension of credit with Gory in March 1989, that Steeprow had not qualified Steeprow Enterprises, Inc., pursuant to Sections 489.119 and 489.1195, Florida Statutes (Supp. 1988). Steeprow allowed the use of his license to gain an extension of credit from Gory for Steeprow Enterprises, Inc., when Steeprow Enterprises was not qualified to do roofing contracting. The extension of credit was for the purchase of roofing materials which would be used by Steeprow Enterprises, Inc., in roofing construction. Steeprow is guilty of violating Section 489.129(1)(m), Florida Statutes (Supp. 1988).

24. The Department has established by clear and convincing evidence that Steeprow aided and abetted Steeprow Enterprises, Inc., in the unlicensed and unregistered practice of roofing contracting. Steeprow admitted that he signed permits in blank for the use of Steeprow Enterprises in pulling permits, and Steeprow knew or should have known at the time that he did that Steeprow Enterprises was not qualified pursuant to Sections

    489.119 and 489.1195, Florida Statutes. Steeprow is guilty of violating Section 489.129(1)(e), Florida Statutes (Supp. 1988).

25. Count II of the Amended Administrative Complaint alleges that Steeprow violated Section 489.129(1)(r), Florida

    Statutes (1993), which provides that the Petitioner may take disciplinary action against a certificate holder or registrant if the contractor, financially responsible officer, or business organization for which the contractor is a primary qualifying agent or secondary qualifying agent is found guilty of the following:

    Failing to satisfy within a reasonable time, the terms of a civil judgment obtained against the licensee, or the business organization qualified by the licensee, relating to the practice of the licensee's profession.

    
    

26. The Department has established by clear and convincing evidence that Steeprow has failed to satisfy within a reasonable time the judgments entered against him relating to the guaranty of the liabilities for the purchase of roofing materials by Steeprow Enterprises, Inc. Steeprow has violated Section 489.129(1)(r), Florida Statutes (1993).

RECOMMENDATION

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

RECOMMENDED that a final order be entered finding that Kenneth G. Steeprow violated Sections 489.129(1)(e), and (m), Florida Statutes (Supp. 1988) and Section 489.129(1)(r), Florida Statutes (1993), imposing an administrative fine of $2,000 for the violation of Section 489.129(e), imposing an administrative fine of $500 for the violation of Section 489.129(1)(m), assessing costs of investigation, and revoking license

number CC C036974.

DONE AND ENTERED this 28th day of August, 1997, in Tallahassee, Leon County, Florida.

SUSAN B. KIRKLAND

Administrative Law Judge

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

(904) 488-9675 SUNCOM 278-9675

Fax Filing (904) 921-6847

Filed with the Clerk of the Division of Administrative Hearings this 28th day of August, 1997.

COPIES FURNISHED:

William S. Cummins Senior Attorney

Department of Business and Professional Regulation

1940 North Monroe Street Tallahassee, Florida 32399-0792

Kenneth G. Steeprow 5985 Acme Avenue

Port St. John, Florida 32927

Rodney Hurst, Executive Director Construction Industry Licensing Board 7960 Arlington Expressway, Suite 300

Jacksonville, Florida 32211-7467

Lynda L. Goodgame, General Counsel Department of Business and

Professional Regulation 1940 North Monroe Street

Tallahassee, Florida 32399-0792

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within 15 days from the date of this Recommended Order. Any exceptions to this Recommended Order should be filed with the agency that will issue the Final Order in this case.

Docket for Case No: 96-003713

Orders for Case No: 96-003713