STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF BUSINESS AND )

PROFESSIONAL REGULATION, )

CONSTRUCTION INDUSTRY )

LICENSING BOARD, )

)

Petitioner, )

)

vs. ) Case No. 97-4716

)

JAMES KARL COOPER, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was conducted in this cause on April 1, 1998, in DeFuniak Springs, Florida, before the State of Florida, Division of Administrative Hearings, by its duly designated Administrative Law Judge, Diane Cleavinger.

APPEARANCES

For Petitioner: John O. Williams, Esquire

Maureen L. Holz, Esquire Williams and Holz, P.A.

458 West Tennessee Street Tallahassee, Florida 32301

For Respondent: J. LaDon Dewrell, Esquire

207 Florida Place, Southeast

Fort Walton Beach, Florida 32549

STATEMENT OF THE ISSUE

Whether Respondent's contractor license should be disciplined for alleged violations of Chapters 489 and 455, Florida Statutes.

PRELIMINARY STATEMENT

The Petitioner filed an Administrative Complaint alleging that Respondent James Cooper's roofing contractor license should be disciplined for violating Chapters 489 and 455, Florida Statutes. Specifically, the Administrative Complaint alleged that Respondent violated Sections 489.129(1)(c) and (e), and 455.227(1)(j), Florida Statutes, by aiding or assisting another to engage in the unlicensed or unregistered practice of roofing; Sections 489.129(1)(c)and (m), Florida Statutes, and 455.227(1)(a) and (m), Florida Statutes, by making misleading, untrue, deceptive or fraudulent statements in the practice of contracting or committing fraud or deceit in the practice of contracting; Sections 489.129(1)(j) and 489.1265(3), Florida Statutes, by obtaining a building permit without having entered into a contract for the construction work involved under the permit; and Section 489.129(1)(n), Florida Statutes, by incompetently performing roofing contracting. Respondent denied the allegations of the Administrative Complaint and requested a formal administrative hearing. Respondent's request was forwarded to the Division of Administrative Hearings.

At the hearing Petitioner called three witnesses and submitted five exhibits into evidence. Respondent testified in his own behalf but did not submit any exhibits into evidence.

At the hearing the Petitioner offered the testimony of three witnesses and offered five exhibits into evidence.

After the hearing Petitioner and Respondent filed proposed recommended orders on June 5, 1998.

FINDINGS OF FACT

1. Respondent, James Cooper, was at all times material to this action licensed by the State of Florida as a registered roofing contractor, having been issued license number RC0066905. Mr. Cooper's license is currently classified "Inactive, Issued (09/05/97)."

2. Around March 1, 1996, Marshall Moran was contacted by Julia Jones regarding repairs to the leaky roof on her home located at 209 Cresent Drive, DeFuniak Springs Walton County, Florida.

3. Ms. Jones' home was over one hundred years old with a steep metal roof. The roof she wished repaired was over the enclosed sleeping porch of her house. Over the last ten years, she had various contractors attempt to fix the leak in the sleeping porch roof. These attempts occurred, on average, more than one time per year. The leak always returned.

4. Marshall Moran is an unlicensed and unregistered roofing contractor. Mr. Moran has been a roofing contractor since before the licensure requirements for contractors became law. He elected not to become licensed under those statutes. However, he did have the experience and skills necessary to repair Ms. Jones' roof.

5. Marshall Moran discussed the job with Ms. Jones.

   
   

   Mr. Moran recommended the entire section of the roof be rebuilt and described the anticipated repairs. Ms. Jones would not allow the entire section of roof to be repaired. She thought only the small section where the leak was apparent needed repair.

6. Unknown to Ms. Jones and prior to beginning the work, Mr. Moran contacted Respondent to tell him of Ms. Jones' job and to see if Respondent wanted to do the job. Respondent couldn't do the job with his crew but offered to allow Mr. Moran to "work under his license."

7. Respondent was pursuing a large commercial roofing contract around the same time as the events at issue here. He wanted to keep Moran's crew together in order to be able to complete the large commercial job. He held the crew together by enabling Moran to do the construction at Julia Jones' residence in consideration for taking legal responsibility for the Jones' job. Respondent did not hire Mr. Moran as his employee.

8. Respondent knew Mr. Moran was not registered or certified to practice contracting. He also knew Mr. Moran was well qualified to perform the work on the Jones' job.

9. Respondent admits that he knew that he should not pull permits for anyone, but that he did it just this one time in order to keep the crew together.

10. On March 15, 1996, Respondent obtained City of DeFuniak Springs, Florida, building permit number 1379 for the roof repairs to Ms. Jones' residence.

11. On the application for said building permit, Respondent represented himself (doing business as Cooper Roofing and Repair) as the contractor of record on the aforesaid project. Respondent intended to and did eventually take legal responsibility for the Jones' job. However, he did not supervise Mr. Moran or his crew. Additionally, Ms. Jones was never informed of Respondent's involvement. More importantly, Ms. Jones never contracted with Respondent for either Respondent or his company to perform roof repairs on her home.

12. On March 21, 1996, Mr. Moran provided an estimate for repair of the portion of Ms. Jones' roof she felt needed repair. The estimate bears the name of "AAA Metal Works" and "Marshall Moran." AAA Metal Works was Mr. Moran's company. The estimate does not reference either Respondent or his company.

13. The estimated cost to repair Ms. Jones roof was $2,785.

    
    

14. Based on the estimate, Ms. Jones entered into a contract with Mr. Moran and AAA Metal Works to perform the repairs to her roof discussed above.

15. Moran and his crew substantially completed the repairs to Ms. Jones' roof in a few days. However, the roof continued to leak after Moran and his crew ended their work. The continuing

    leak was not due to any incompetence on the part of Respondent or Moran.

16. Ms. Jones paid for the repairs with two checks made out to AAA Metal Works.

17. The checks were in the amounts of $3,500 and $4,350. Respondent did not receive any of the money for the Jones' job. His only expense was the fee for the building permit. All other expenses were paid for by Mr. Moran.

18. At no time during the formation or performance of the contract with Marshall Moran did Julia Jones have any contact with or knowledge of involvement by Respondent. In fact, Respondent only drove by the job site one time.

19. As indicated, the roof continued to leak. Ms. Jones contacted Mr. Moran on approximately 5-6 occasions notifying him of the continued leaks. Mr. Moran would return to Ms. Jones' home and inspect the problems, but was unable to stop the leaks to Jones' satisfaction. It is not clear whether Mr. Moran kept Respondent informed of these continued service calls.

20. Approximately one year after completion of the initial repairs on Ms. Jones' roof, Respondent received a call from Ms. Jones' tenant and friend, Sharon Jenks, who called posing as a potential new client. Ms. Jenks had gotten Respondent's name from the building permit.

21. Ms. Jenks called Respondent because the house was still leaking approximately one year after the repair was done and intervening visits by Marshall Moran had not fixed the problem.

22. Ms. Jenks arranged for Respondent to visit Ms. Jones' home. Respondent did not recognize the house when he arrived and drove past it.

23. When Ms. Jenks showed Respondent the building permit bearing his name, Respondent showed surprise. He returned the next day with Mr. Moran. Respondent, Mr. Moran, Ms. Jenks and Ms. Jones all met regarding the continued leaking.

24. Respondent and Mr. Moran told Ms. Jones that the metal on the roof was "bad" and needed to be replaced to stop the leaks on the "sleeping porch." Understandably, Ms. Jones did not want to deal any further with Mr. Moran or Respondent and would not permit them to make the recommended necessary repairs.

25. Ms. Jones sued both Respondent and Mr. Moran in a civil action styled: Julia R. Jones v. James K. Cooper and Marshall Moran, Case Number 97-0040-CC, in the County Court of the First Judicial Circuit in and for Walton County, Florida. Following a judge trial, a Final Judgment was entered in favor of Respondent and Mr. Moran on December 9, 1997.

26. Mr. Moran was charged with contracting without a license in violation of Section 489.127, Florida Statutes (1995), in State of Florida v. Marshall Moran, Case Number 97-0549-CF, in

    the Circuit Court of the First Judicial Circuit in and for Walton County, Florida. That charge was dismissed by Circuit Judge Lewis Lindsey on February 3, 1998.

    CONCLUSIONS OF LAW

    
    

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

28. Petitioner was charged with aiding and assisting the practice of unlicensed contracting, applying or obtaining a building permit for construction in which he does not have a contract, engaging in fraud or deceit in the practice of contracting and incompetence or misconduct in contracting.

29. The Jones' project was undertaken and completed under Respondent's license. However, the facts of this case demonstrate that Respondent's alleged responsibility was anything more than an attempt by Respondent to help his friend, Mr. Moran obtain a job which he otherwise could not perform without a license or registration.

30. Julia Jones entered into a contract with AAA Metal Works and Marshall Moran to repair her roof. The elements of a contract are satisfied in this case only between Ms. Jones and Mr. Moran. Mr. Moran's written estimate offers to perform certain construction, and that offer is in the name of AAA Metal Works. Ms. Jones accepted the offer of AAA Metal Works with the expectation and understanding that she was entering into a

    contractual relationship with Mr. Moran and his company. Consideration went from Ms. Jones to AAA Metal Works. Mr. Moran and/or AAA Metal Works retained the full proceeds except for the cost of the permit. Marshall Moran and his crew performed the contract. There was clearly no "meeting of the minds" between Ms. Jones and Respondent and/or his company. At no time was there any indication to her that she was dealing with an employee of Respondent or his company. Her understanding of whom she was contracting with was evidenced by the payee on her check (AAA Metal Works). Had Mr. Moran and Ms. Jones been operating under different assumptions as to Mr. Moran's capacity up to that point, any mistaken understanding on the part of Ms. Jones would surely have been corrected after Ms. Jones made the first check payable to AAA Metal Works. Clearly that did not occur.

    Therefore, Respondent is guilty of violating Sections 489.129(1)(c) and (e), Florida Statutes, 455.227(1)(j), Florida Statutes, by assisting another to engage in the prohibited uncertified and unregistered practice of contracting.

31. The evidence did establish that Respondent made a misleading statement related to the practice of contracting when he represented to the City of DeFuniak that he was the contractor for the Jones' job. The representation violates Sections 489.129 (1)(c) and 455.127 (1)(a), Florida Statutes. On the other hand, there was no evidence to establish that Respondent committed

    fraud in the practice of contracting. Therefore, Respondent is not guilty of violating Sections 489.129(1)(m), Florida Statutes.

32. Likewise, the evidence established that Mr. Moran not Respondent, entered into the Jones' repair contract. Respondent did not have a contract with Ms. Jones when he obtained the building permit for the work on her home. Therefore, Respondent is guilty of violating Sections 489.129(j) and 489.1265(3), Florida Statutes.

33. However, the evidence did not show that Respondent was guilty of any incompetency regarding Mr. Moran's performance of the repairs to Ms. Jones' roof. The roof's leaks were due to the poor condition of the entire section of roof over the sleeping porch. Ms. Jones would not authorize those repairs even though she had been advised that such repairs would be needed.

    Therefore Respondent is not guilty of violating Section 489.129(n), Florida Statutes.

34. In this case, all the violations outlined above relate to and arise from one incident. Therefore, Petitioner is entitled to only one penalty. Additionally, this incident is the only time Respondent has allowed his license to be so used. He has had no other disciplinary actions taken against his license. The person he allowed to use his license was an experienced and skilled roofing contractor, albeit unlicensed and unregistered. The danger to the public was minimal and no harm was caused to

Ms. Jones. Based on these facts, the lowest fine of $500.00 established for the various offenses should be imposed.

RECOMMENDATION

Based upon the findings of fact and conclusions of law, it

is,

RECOMMENDED:

That the Board should find Respondent guilty of violating

Chapters 489 and 455, Florida Statutes, and impose an administrative fine of $500.00 on Respondent

DONE AND ENTERED this 3rd day of August, 1998, in Tallahassee, Leon County, Florida.

DIANE CLEAVINGER

Administrative Law Judge

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

(850) 488-9675 SUNCOM 278-9675

Fax Filing (850) 921-6847

Filed with the Clerk of the Division of Administrative Hearings this 3rd day of August, 1998.

COPIES FURNISHED:

John O. Williams, Esquire Maureen L. Holz, Esquire Willams and Holz, P.A.

458 West Tennessee Street Tallahassee, Florida 32301

J. LaDon Dewrell, Esquire

207 Florida Place, Southeast

Ft. Walton Beach, Florida 32549

Rodney Hurst, Executive Director Construction Industry Licensing Board 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.

Docket for Case No: 97-004716

Orders for Case No: 97-004716