OWES, ADRS Ad, STATE OF FLORIDA HEARIRGS DEPARTMENT OF BUSINESS AND PROFESSIONAL REGULATION CONSTRUCTION INDUSTRY LICENSING BOARD DIVISION I DEPARTMENT OF BUSINESS AND PROFESSIONAL REGULATION, Petitioner, OO - aed | Case No. 98-19694 vs. NOEL BRIAN ATHERLEY, Respondent. / ADMINISTRATIVE COMPLAINT Petitioner, DEPARTMENT OF BUSINESS AND PROFESSIONAL REGULATION, ("Petitioner"), files this Administrative Complaint before the Construction Industry Licensing Board, against NOEL BRIAN ATHERLEY, ("Respondent"), and says: 1. Petitioner is the state agency charged with regulating the practice of contracting pursuant to Section 20.165, Florida Statutes, and Chapters 455 and 489, Florida Statutes. 2. Respondent is, and has been at all times material hereto, a Certified Building Contractor, in the State of Florida, having been issued license number CB C056763. 3. Respondent's last known address is 604 North Dixie wo) Nw] Highway, Lantana, Florida 33462. 4. At all times material hereto, Respondent was the licensed to contract as an individual. COUNT I 5. Petitioner realleges and incorporates the allegations set forth in paragraphs one through four as though fully set forth in this Count I. 6. In or around May 1998, the Respondent verbally contracted with Kathleen Petretti (hereinafter referred to as “Customer”) to reroof a house at 1708 Terrace Drive West, Lake Worth, Florida for Three Thousand, Eight Hundred Sixty Eight dollars ($3,868.00). 7. Section 489.115(1), Florida Statutes (1997) provides that “No person may engage in the business of contracting in this state without first being certified or registered in the proper classification.” 8. Section 489.115(2) (b), Florida Statutes (1997) provides that “Certification allows the certificateholder to engage in contracting only for the type of work covered by the certificate and only while the certificate is on active status.” . 9. Section 489.105(3) (b), Florida Statutes (1997) states: “Building Contractor means a contractor whose services are limited to construction of commercial buildings and single- dwelling or multiple-dwelling residential buildings, which commercial or residential buildings do not exceed three stories WU VU in height, and accessory use structures in connection therewith or a contractor whose services are limited to remodeling, repair, or improvement of any size building if the services do not affect the structural members of the building.” 10. At no time material to the allegations in this complaint was the Respondent licensed to perform roof construction in the State of Florida. 11. Contracting to perform roof work without being duly licensed constitutes a violation of the foregoing provisions of Chapter 489, Florida Statutes. 12. Based on the foregoing, the Respondent violated Section 489.129(1) (j), Florida Statutes (1997), by failing in any material respect to comply with the provisions of this part or violating a rule or lawful order of the board. COUNT IT 13. Petitioner realleges and incorporates the allegations set forth in paragraphs one through four and six through eleven as though fully set forth in this Count II. 14. On or about May 22, 1998, the Respondent cashed a Three Thousand dollar ($3,000.00) deposit check paid by the Customer in furtherance of the aforesaid roof contract. 15.. In or around July 1998, the Respondent advised the Customer that he needed additional funds to complete the project. 16. In or around July 1998, the Customer mailed the U U Respondent a check for Two Thousand, Two Hundred Sixty Two dollars ($2,262.00). 17. On or about July 2, 1998, the Respondent contracted with Horizon Roofing, Inc. (hereinafter referred to as “Horizon”) to reroof the Customer’s house for Three Thousand, Three Hundred dollars ($3,300.00). 18. The Respondent represented to Horizon that he was a part owner of the Customer’s house. 19. The Customer stopped payment on the second check that was issued to the Respondent, however, the Respondent cashed the check and did receive the proceeds from the check. 20. The Respondent failed to pay Horizon for the work that Horizon performed on the Customer’s roof. 21. The Customer paid Horizon Three Thousand, Three Hundred Eighty dollars ($3,380.00) for the roof work that Horizon performed on her house. 22. The Respondent made false representations to the Customer regarding the roof work that was performed on her house. 23. The Respondent made false representations to Horizon regarding his ownership in the Customer’s house and authority to contract as owner of the house. 24. The foregoing constitutes fraud or deceit in the practice of contracting. 25. Based on the foregoing, the Respondent violated Section ww) UY 489.129(1)(m), Florida Statutes (1997), by committing fraud or deceit in the practice of contracting. COUNT III 26. Petitioner realleges and incorporates the allegations set forth in paragraphs one through four, six and fourteen through twenty four as though fully set forth in this Count III. 27. Based on the foregoing, the Respondent violated Section 489.129(1) (h) (3), Florida Statutes (1997), by committing mismanagement or misconduct in the practice of contracting that causes financial harm to a customer. Financial mismanagement or misconduct occurs when the contractor's job has been completed, and it is shown that the customer has had to “pay more for the contracted job than the original contract price, as adjusted for subsequent change orders, unless such increase in cost was the result of circumstances beyond the control of the contractor, was the result of circumstances caused by the customer, or was otherwise permitted by the terms of the contract between the contractor and the customer. WHEREFORE, Petitioner respectfully requests the Construction Industry Licensing Board enter an Order imposing one or more of the following penalties: place on probation, reprimand the licensee, revoke, suspend, deny the issuance or renewal of the certificate or registration, require financial restitution to a consumer, impose an administrative fine not to , Nw exceed $5,000 per violation, require continuing education, assess costs associated with investigation and prosecution, impose any or all penalties delineated within Section 455.227(2), Florida Statutes, and/or any other relief that the Board is authorized to impose pursuant to Chapters 489, 455, Florida Statutes, and/or the rules promulgated thereunder. ms Signed this [°-_ aay of ps ( , 1999. Cynthia A. Henderson Secretary By: Candice J. Crawford COUNSEL FOR DEPARTMENT: F | Department of Business and Professional Regulation Diane Snell Perera DEPUTY CLERK Senior Attorney Department of Business and Pravda) Tichale CLERK Professional Regulation QQ 401 NW 2 Avenue #N607 ore Gear Miami, FL. 33128 DSP/ms : 2/1/99 Case # 98-19694 Pc 3-17-44 Mele trick Simmons +

Docket for Case No: 00-000284