STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF BUSINESS AND ) PROFESSIONAL REGULATION, )

CONSTRUCTION INDUSTRY )

LICENSING BOARD, )

)

Petitioner, )

)

vs. ) Case No. 96-4295

)

EDSEL MATHEWS, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was held in this case on September 25, 1997, in Monticello, Florida, before Donald R. Alexander, the assigned Administrative Law Judge of the Division of Administrative Hearings.

APPEARANCES

For Petitioner: John O. Williams, Esquire

Post Office Box 14267 Tallahassee, Florida 32317

For Respondent: Clifford L. Davis, Esquire

Post Office Box 1057 Monticello, Florida 32345

STATEMENT OF THE ISSUE

The issue is whether Respondent should have an administrative fine or other disciplinary action imposed for allegedly acting as a contractor without a license.

PRELIMINARY STATEMENT

This matter began on July 25, 1996, when Petitioner, Department of Business and Professional Regulation, Construction Industry Licensing Board, issued an Administrative Complaint alleging that Respondent, Edsel Mathews, falsely held himself out as a contractor, commenced work for which a building permit was required without such a permit being in effect, and acted in the capacity of a contractor without being licensed. The complaint seeks "the entry of an Order imposing an administrative fine not to exceed $5,000.00 per count or any other relief that the Department deems appropriate."

Respondent denied the allegations and requested a formal hearing under Section 120.57(1), Florida Statutes, to contest the charges. The matter was referred by Petitioner to the Division of Administrative Hearings on September 11, 1996, with a request that an Administrative Law Judge be assigned to conduct a formal hearing. By Notice of Hearing dated September 25, 1996, a final hearing was scheduled on December 3, 1996, in Monticello, Florida. After the case was temporarily abated at Petitioner's request, it was rescheduled to September 25, 1997, at the same location.

At final hearing, Petitioner presented the testimony of Gessie Lee Choice, the complaining consumer; David Parker, a building code inspector; and John Dorman, a building contractor. Also, it offered Petitioner's Exhibits 1-10. All exhibits were

received in evidence. Respondent testified on his own behalf. Also, he offered Respondent's Exhibits 1-4. All exhibits were received in evidence.

The transcript of hearing was filed on October 3, 1997.

Proposed findings of fact and conclusions of law were filed by Respondent and Petitioner on October 8 and 20, 1997, respectively, and they have been considered by the undersigned in the preparation of this Recommended Order.

FINDINGS OF FACT

Based upon all of the evidence, the following findings of fact are determined:

1. When the events herein occurred, Respondent, Edsel Mathews, operated a business under the name of Home Repair Roofing in Monticello, Florida. Records of Petitioner, Department of Business and Professional Regulation, Construction Industry Licensing Board (Board), establish that Respondent holds no licenses from that Board and thus he is not authorized to engage in any professions regulated by the Board.

2. Gessie Lee Choice owns a residence at 1701 South Campbell Street, Perry, Florida. In 1995, her home was partially destroyed in a fire. Based on a recommendation by her lender, who was refinancing the repair work, Choice selected Respondent to repair her home.

3. Relevant portions of the City Code of the City of Perry (City) were not made a part of this record. However, testimony

   established that under the licensing scheme for the City, an individual who has a specialty contractor license from the City may perform residential carpentry work if he works under the supervision of a licensed contractor. Alternatively, the same work may be performed by the license holder if the property owner obtains a building permit and signs an affidavit that he or she will be supervising the work. The license does not, however, authorize the holder to perform air-conditioning, electrical, or plumbing work even if the owner supervises the project. In addition, roofing work involving structural changes can only be performed under the auspices of a licensed roofing contractor.

4. Respondent held a valid specialty contractor license from the City. On August 7, 1995, Choice obtained a building permit from the City and executed an affidavit stating that she would be supervising the work. Under these circumstances, Respondent was authorized to perform all work on the house except that relating to the plumbing, electrical, and air-conditioning systems. Also, he could not perform any structural work on her roof.

5. The evidence is conflicting as to the representations Respondent made to Choice regarding his qualifications before the two parties executed a contract. The more persuasive evidence supports a finding that he represented he was a "subcontractor," but was not a licensed contractor within the Board's purview. While there is a conflict as to representations regarding his

   ability to perform plumbing and electrical work, it is found that Respondent simply agreed to procure for Choice a licensed plumber and electrician to do that type of work.

6. Under the agreement executed by Choice, Respondent agreed to "furnish and perform the labor necessary for the completion" of a wide array of work. The items to be completed are listed on Petitioner's exhibit 3 and include removing asbestos from the outside of her house, enlarging three bedrooms and bath, removing an existing tin roof, installing new rafters, reroofing the home, building new cabinets and installing new plumbing and wiring for the kitchen, remodeling the existing bathrooms, building a utility room, installing new windows, insulating walls and ceilings, drywalling all ceilings, installing new carpet and vinyl, and placing vinyl siding on outside of home. Respondent established that even though the contract lists a number of items outside the scope of his authority, he intended to get licensed contractors to perform all work for which he held no authority under his city license. Choice agreed with this assertion.

7. Despite Respondent's offer to obtain other contractors to perform the electrical and plumbing work, Choice selected her own licensed contractors to do that work. She also hired another individual to remove the asbestos from her home. Respondent

   performed a part of the remaining work, including the installation of a new roof. This latter work involved structural changes upon the house.

8. Respondent made two draws totaling $13,200.00 from the escrowed funds. Also, in September 1995, Choice paid Respondent

   $446.00 in personal funds to purchase plywood to be placed on the floor and walls of the house. There is no allegation, however, that he failed to perform an equivalent amount of work before he was told by a Board inspector to stop working on the project.

9. A short time after Respondent terminated work, a City building inspector, David Parker, inspected the roofing work performed by Respondent. Parker found that the truss system did not meet building code requirements. Because of numerous code violations, which are enumerated in Petitioner's Exhibit 9, the entire roof system had to be removed and reinstalled. Parker also noted that Respondent's work involved structural changes not authorized under his license. In mitigation, however, it is found that Respondent believed that he was authorized to do this work under his local license.

10. Choice was forced to hire a licensed roofing contractor to reroof her home. That contractor described Respondent's workmanship as "not good." In order to correct the deficiencies and complete the remodeling project, Choice expended another

    $12,000.00 over and above her original contract price of

    
    

    $33,490.00.

11. Except for this incident, there is no evidence of Respondent violating Board rules and statutes relating to contracting.

CONCLUSIONS OF LAW

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

1. Because Respondent is subject to penal sanctions, including the imposition of an administrative fine, Petitioner bears the burden of proving by clear and convincing evidence that the allegations in the complaint are true. See, e.g., Osborne Stern & Co., Inc., v. Dep't of Banking and Finance, 670 So. 2d 932, 933 (Fla. 1996).

2. The complaint alleges that Respondent (a) violated Section 489.127(1)(a), Florida Statutes (1995), by "falsely [holding] himself out to the homeowner . . . as a licensed contractor" (Count I); (b) commenced work without obtaining the necessary permits in violation of Section 489.127(1)(h), Florida Statutes (1995) (Count II); and (c) engaged in the business or acted in the capacity of a contractor without being registered or certified as proscribed by Section 489.127(1)(f), Florida Statutes (1995)(Count III). In its proposed order, Petitioner has voluntarily dismissed Count II.

3. As to Count I, there is less than clear and convincing evidence that Respondent "[f]alsely h[e]ld himself . . . out as a

   licensee, certificateholder, or registrant" within the meaning of Section 489.127(1)(a). In reaching this conclusion, the undersigned notes that while Respondent represented that he was a "subcontractor," he did not represent to Choice that he was a licensed contractor within the meaning of the law. This count should accordingly be dismissed.

4. As to Count III, there is clear and convincing evidence that Respondent engaged in the business or acted in the capacity of a contractor without being duly registered or certified. This conclusion is based on the established fact that Respondent's efforts to repair Choice's roof involved structural work not authorized by his local license, and work which he could perform only under the supervision of a licensed roofing contractor. Therefore, Count III has been sustained.

5. Section 455.228(1), Florida Statutes, provides that the Board may impose upon unlicensed persons an administrative fine not to exceed $5,000.00 per incident for violations of Chapter

   489, Florida Statutes. In its proposed order, Petitioner recommends the imposition of a $5,000.00 fine based upon the fact that Choice was required to expend approximately $6,000.00 to replace the roof previously installed by Respondent. Because Respondent has not been charged with incompetency, but rather with operating without a license, and he was under the impression that he had the authority to do the work performed, an administrative fine in the amount of $1,000.00 is more appropriate.

6. Finally, in its proposed order, Petitioner has asked that Respondent be assessed $1,395.51 in "costs as allowed by Chapter 455." Because Section 455.227(3), Florida Statutes, provides that the assessment of costs is discretionary with the Board, no action has been taken with respect to this issue, and Petitioner's counsel may renew this request when the Board convenes to take final action. At that time, Respondent should have the opportunity to review the costs to verify their accuracy and legitimacy.

RECOMMENDATION

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

RECOMMENDED that the Construction Industry Licensing Board enter a Final Order finding Respondent guilty of violating Section 489.127(1)(f), Florida Statutes, and that a fine in the amount of $1,000.00 be imposed, to be paid within such time as

the Board deems appropriate. A decision on Petitioner's request for the assessment of costs against Respondent under Section 455.227(3), Florida Statutes, is deferred to the Board. Finally, Counts I and II should be dismissed.

DONE AND ENTERED this 4th day of November, 1997, in Tallahassee, Leon County, Florida.

DONALD R. ALEXANDER

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 4th day of November, 1997.

COPIES FURNISHED:

John O. Williams, Esquire Post Office Box 14267 Tallahassee, Florida 32317

Clifford L. Davis, Esquire Post Office Box 1057 Monticello, Florida 32345

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

Jacksonville, Florida 32211-7467

Lynda L. Goodgame, Esquire 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 Construction Industry Licensing Board.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF BUSINESS AND ) PROFESSIONAL REGULATION, )

CONSTRUCTION INDUSTRY )

LICENSING BOARD, )

)

Petitioner, )

)

vs. ) Case No. 96-4295

)

EDSEL MATHEWS, )

)

Respondent. )

)

ORDER

Petitioner's Motion to Correct Technical Error is granted, and the Recommended Order issued on November 4, 1997, is amended to change the references to the Construction Industry Licensing Board to the Department of Business and Professional Regulation consistent with the changes enumerated in paragraph 2 of the Motion.

DONE AND ENTERED this 18th day of December, 1997, in Tallahassee, Leon County, Florida.

COPIES FURNISHED:

John O. Williams, Esquire Post Office Box 14267 Tallahassee, Florida 32317

Clifford L. Davis, Esquire Post Office Box 1057 Monticello, Florida 32345

DONALD R. ALEXANDER

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 18th day of December, 1997.

Docket for Case No: 96-004295

Orders for Case No: 96-004295