STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF BUSINESS AND )

PROFESSIONAL REGULATION, ) CONSTRUCTION INDUSTRY LICENSING ) BOARD, )

)

Petitioner, )

) CASE NO. 96-4951

vs. )

)

JACQUES COTE, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was held in this case on February 12, 1997, in Fort Lauderdale, Florida, before Patricia Hart Malono, a duly-designated Administrative Law Judge of the Division of Administrative Hearings.

APPEARANCES

For Petitioner: Gail Hoge, Esquire

Department of Business and Professional Regulation

1940 North Monroe Street Tallahassee, Florida 32399-0792

For Respondent: Lawrence John Miano, Esquire

110 Tower, Suite 1630

110 Southeast Sixth Street

Fort Lauderdale, Florida 33301

STATEMENT OF THE ISSUES

Whether the respondent committed the violations alleged in the Administrative Complaint, and, if so, the penalty which should be imposed.

PRELIMINARY STATEMENT

In a two-count Administrative Complaint dated March 11, 1996, the Department of Business and Professional Regulation ("Department") charged that Jacques Cote performed an act which assisted a person or entity in engaging in the prohibited uncertified or unregistered practice of contracting in violation of section 489.129(1)(e), Florida Statutes, and that he committed incompetence or misconduct in the practice of contracting in violation of section 489.129(1)(n), Florida Statutes. These charges were based on allegations that Mr. Cote was a certified general contractor and that he applied for and received a permit for a re-roofing project on behalf of an unregistered roofing contractor, who abandoned the job after being paid the entire contract price.

Mr. Cote timely requested a formal administrative hearing on the charges, and the Department forwarded the request to the Division of Administrative Hearings for the assignment of an administrative law judge. By notice dated November 20, 1996, the case was scheduled for a final hearing on February 12, 1997.

At the hearing, the Department presented the testimony of Judith Braun and Suzanne Marchitello, the records custodian and administrative coordinator for the Broward County Building and Permitting Division. Petitioner's exhibits 1 through 10 were offered and received into evidence. Jacques Cote testified in his own behalf, and respondent's exhibits 1 through 3 were

offered and received into evidence. At the Department's request and with no objection from the respondent, official recognition was taken of chapter 489, part I, Florida Statutes, and of rule chapter 61G-4, Florida Administrative Code.

A transcript of the hearing was filed with the Division, and the parties timely submitted proposed findings of fact and conclusions of law, which have been duly considered.

FINDINGS OF FACT

Based on the oral and documentary evidence presented at the final hearing and on the entire record of this proceeding, the following findings of fact are made:

1. The Department of Business and Professional Regulation is the state agency responsible for investigating and prosecuting complaints made to the Department for violations of the requirements of chapter 489, part I, Florida Statutes. Sections 489.131(7)(e) and 455.225, Fla. Stat. Pursuant to section 489.129(1), the Construction Industry Licensing Board ("Board") is the entity responsible for imposing discipline for the violations set out in that section.

2. At all times material to this case, Mr. Cote was a certified general contractor operating under License Number CGC006199 issued by the Construction Industry Licensing Board. Mr. Cote currently holds this license, and he has been a licensed general contractor since 1973.

3. At all times material to this case, Mr. Cote was the licensed qualifying agent for JLC Enterprises, Inc.

4. On January 12, 1995, Noel Mais, on behalf of Noel Mais Roofing, contracted with Judith Braun to re-roof property she owned located at 8914 Northwest 26th Court, Coral Springs, Florida. The contract price was $7,000.00, with $3,000.00 required as a down-payment, $3,000.00 to be paid after the roof was dried in, and $1,000.00 to be paid on completion of the project. Neither Mr. Cote nor JLC Enterprises, Inc., was a party to this contract.

5. In late January, 1995, Mr. Mais approached Mr. Cote and requested that he apply for the necessary building permit from the City of Coral Springs. He provided to Mr. Cote a workers' compensation waiver and exemption, a Certificate of Insurance for general commercial liability insurance, and a Certificate of Competency issued by Broward County, Florida, with an expiration date of August 31, 1995. Mr. Mais also told Mr. Cote that he had submitted all of the papers necessary to register his Broward County Certificate of Competency with the state but had not yet received his registration. Mr. Cote relied on the documents and the representations of Mr. Mais regarding his registration status with the state.

6. On or about February 1, 1995,1 Mr. Cote submitted an application to the City of Coral Springs for a building permit to re-roof property owned by Ms. Braun and located at 8914 Northwest

   26th Court, Coral Springs, Florida, naming JLC Enterprises, Inc., as the contractor and identifying the estimated cost of the project at $7,000.00. Mr. Mais gave Mr. Cote $300.00 when he applied for the permit. Mr. Cote used $150.00 of this money to pay the permit application fee and $60.00 to pay for two re- inspections which had to be done on the roof.

7. On or about February 17, 1995, the City of Coral Springs issued Permit Number 95-443.2

8. Mr. Mais commenced work on the project a few weeks after the contract was signed, but before Mr. Cote applied for the permit. According to Ms. Braun, Mr. Mais started "like gangbusters" and quickly stripped the old tiles off of the roof and applied the tar paper.

9. After Mr. Cote agreed to apply for the permit, he told Mr. Mais not to work on the project until the permit was issued. According to Mr. Cote, Mr. Mais returned to work the day after the permit was issued and, the "next day," the job failed inspection because the nail spacing was not consistent with the new code. Mr. Mais re-nailed the roof according to code, but it failed re-inspection because the flashing was not painted. This was done, and the job passed a second re-inspection.

10. Mr. Cote looked in on the job a couple of times after this and saw that nothing was being done. He contacted Mr. Mais and asked why he was not working on the project, and Mr. Mais told him that he was waiting for Ms. Braun to give him some money

    so he could buy the tiles. When Ms. Braun called Mr. Cote and complained that no tile had been delivered, he went to Mr. Mais's home and insisted that he "get some tile on that roof." The next day, Mr. Mais brought a load of tiles and piled them on the roof.3

11. Ms. Braun paid Noel Mais the $3,000.00 down-payment specified in the contract by a check dated January 12, 1995, the day the contract was executed. Then, notwithstanding the payment schedule stated in the contract, Ms. Braun paid Mr. Mais

    $3,000.00 by check dated January 25, 1995. She paid Mr. Mais the remaining $1,000.00 due under the contract by checks dated March 28 and 31, 1995, and April 13, 1995.

12. After receiving full payment, Mr. Mais abandoned the job, and, when Ms. Braun told Mr. Cote she had paid Noel Mais in full for the job, Mr. Cote refused to finish the work because he had not received any portion of the payment.

13. In November, 1995, Ms. Braun contracted with R. J. Chambers Roofing, Inc., to complete the work on her roof for

    $4,500.00. The work was completed, and she paid Mr. Chambers the contract price.

14. The evidence presented by the Department is sufficient to establish that Mr. Cote knew that Mr. Mais was not registered with the State of Florida as a roofing contractor and that Mr. Cote stated on the permit application that his company, JLC

    Enterprises, Inc., was the contractor for the Braun re-roofing job even though he was not a party to the contract.

    CONCLUSIONS OF LAW

    
    

15. The Division of Administrative Hearings has jurisdiction over the subject matter of this proceeding and of the parties thereto pursuant to section 120.57(1), Florida Statutes (Supp. 1996).

16. Because the Department filed an administrative complaint in which it asked for sanctions against Mr. Cote's license, including revocation or suspension or the imposition of administrative fines, it has the burden of proving by clear and convincing evidence that he committed the violations alleged in the complaint. Department of Banking and Finance, Division of Securities and Investor Protection v. Osborne Stern and Co., 670 So. 2d 932 (Fla. 1996); Ferris v. Turlington, 510 So. 2d 292 (Fla. 1987).

17. Section 489.129(1) provides as follows:

    
    

    The board may take any of the following actions against any certificateholder or registrant: place on probation or reprimand the licensee, revoke, suspend, or deny the issuance or renewal of the certificate or registration, require financial restitution to a consumer, impose an administrative fine not to exceed $5,000 per violation, require continuing education, or assess costs associated with investigation and prosecution, if the contractor . . . 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 of4contracting, if the certificateholder or registrant knows or has reasonable grounds to know that the person or entity was uncertified and unregistered.

    ***

    (n) Committing incompetency or misconduct in the practice of contracting.

    
    

18. Based on the facts found herein, the Department has met its burden of proving by clear and convincing evidence that, by applying for a permit on behalf of Mr. Mais when he knew that Mr. Mais was not registered as a roofing contractor with the state and by representing on the permit application that his company was the contractor for the job, Mr. Cote violated section 489.129(1)(e)4 and (n).

19. Normal penalty ranges for violations of chapter 489, part I, are set out in rule 61G-17.001, Florida Administrative Code. The normal penalties for the violations committed by Mr. Cote are the imposition of an administrative fine ranging from

    $500 to $2,500 for the first violation of section 489.129(1)(e) and the imposition of an administrative fine ranging from $250 to

    $1,000 for the violation of section 489.129(1)(n). Rule 61G- 17.001(5) and (14)(c), F.A.C.

20. In addition to the penalties specified above, rule 61G- 17.001(20) provides that "the board may order the contractor to make restitution in the amount of financial loss suffered by the consumer" in addition to any other penalties which might be imposed and without proof of aggravating factors.

21. Rule 61G-17.002 sets out aggravating and mitigating factors which may be considered in determining the appropriate penalties to be imposed for violations as follows:

    1. 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.

    2. Actual job-site violations of building codes, or conditions exhibiting gross negligence, incompetence, or misconduct by the licensee, which have not been corrected as of the time the penalty is being assessed.

    3. The severity of the offense.

    4. The danger to the public.

    5. The number of repetitions of offenses.

    6. The number of complaints filed against the licensee.

    7. The length of time the licensee has practiced.

    8. The actual damage, physical or otherwise, to the licensee's customer.

    9. The deterrent effect of the penalty imposed.

    10. The effect of the penalty upon the licensee's livelihood.

    11. Any efforts at rehabilitation.

    12. Any other mitigating or aggravating circumstances.

22. The facts found herein have been considered in light of these penalty guidelines and aggravating and mitigating factors in determining the recommended penalty. It is especially noteworthy that Ms. Braun had paid Noel Mais $6,000.00 of the

$7,000.00 contract price before he approached Mr. Cote and asked him to submit the permit application for the re-roofing job and that the Department did not present any evidence of previous offenses or complaints filed against Mr. Cote.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Construction Industry Licensing Board issue a Final Order finding that Jacques Cote violated section 489.129(1)(e) and (n), Florida Statutes; imposing an administrative fine in the total amount of $1,000.00, consisting of a $500.00 fine for each of the two violations; assessing the costs of investigating and prosecuting the violations; and requiring Mr. Cote to make restitution to Judith Braun in the amount of $1,000.00.

DONE AND ENTERED this 6th day of May, 1997, in Tallahassee, Leon County, Florida.

PATRICIA HART MALONO

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 6th day of May, 1997.

ENDNOTES

1 Although Mr. Cote testified at the hearing that he submitted the permit application on January 27, 1997, the certified copy of the application received into evidence as petitioner's exhibit 7 contains a notary's attestation to the signature of Noel Mais dated February 1, 1995.

2 Although Mr. Cote admitted in his Answer and Affirmative Defenses to the Administrative Complaint that the permit had been issued on January 27, 1995, the certified copy of the application

received into evidence as petitioner's exhibit 7 clearly shows that the application was "Approved for Permit" on February 17, 1995.

3 Ms. Braun testified that the tiles Mr. Mais delivered were not the ones specified in the contract and were extremely ugly.

4 It is true, as argued by Mr. Cote in his proposed conclusions of law, that section 489.129(1)(e) refers to a person or entity known to be "uncertified and unregistered." (Emphasis added.) It is clear, however, from the provisions of chapter 489, part I, from the context in which the conjunctive is used, and from the use of the disjunctive in other provisions of section 489.129(1) that a contractor must either be certified or registered with the state. Therefore, in order for the provision to make sense, it must be read in the disjunctive, that is, as referring to a person or entity which is "uncertified or unregistered."

COPIES FURNISHED:

Lawrence John Miano, Esquire

110 Tower, Suite 1630

110 Southeast 6th Street

Fort Lauderdale, Florida 33301

Gail Hoge, Esquire Department of Business and

Professional Regulation 1940 North Monroe Street

Tallahassee, Florida 32399-0792

Rodney Hurst, Executive Director Department of Business and

Professional Regulation

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.

1 Although Mr. Cote testified at the hearing that he submitted the permit application on January 27, 1997, the certified copy of the application received into evidence as petitioner's exhibit 7 contains a notary's attestation to the signature of Noel Mais dated February 1, 1995.

2 Although Mr. Cote admitted in his Answer and Affirmative Defenses to the Administrative Complaint that the permit had been issued on January 27, 1995, the certified copy of the application received into evidence as petitioner's exhibit 7 clearly shows that the application was "Approved for Permit" on February 17, 1995.

3 Ms. Braun testified that the tiles Mr. Mais delivered were not the ones specified in the contract and were extremely ugly.

4 It is true, as argued by Mr. Cote in his proposed conclusions of law, that section 489.129(1)(e) refers to a person or entity known to be "uncertified and unregistered." (Emphasis added.) It is clear, however, from the provisions of chapter 489, part I, from the context in which the conjunctive is used, and from the use of the disjunctive in other provisions of section 489.129(1) that a contractor must either be certified or registered with the state. Therefore, in order for the provision to make sense, it must be read in the disjunctive, that is, as referring to a person or entity which is "uncertified or unregistered."

Docket for Case No: 96-004951

Orders for Case No: 96-004951