STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF BUSINESS AND )

PROFESSIONAL REGULATION, ) CONSTRUCTION INDUSTRY LICENSING ) BOARD, )

)

Petitioner, )

)

vs. ) Case Nos. 00-2939

) 00-2940

EARL HENRY BENJAMIN, )

)

Respondent. )

)

RECOMMENDED ORDER

Administrative Law Judge ("ALJ") Daniel Manry conducted the administrative hearing of this case on September 1, 2000, in St. Petersburg, Florida.

APPEARANCES

For Petitioner: Robert A. Crabill, Esquire

Department of Business and Professional Regulation

Northwood Centre

1940 North Monroe Street Tallahassee, Florida 32399-3060

For Respondent: No Appearance

STATEMENT OF THE ISSUE

The issue in this case is whether Respondent violated Sections 489.119(2), 489.124(2), 489.129(1)(n) and (p), and

489.1425(1), Florida Statutes (1999) (hereinafter, "Florida Statutes"), respectively, by: engaging in contracting as a business organization without applying for a certificate of authority through a qualifying agent and under a fictitious name;

failing to notify Petitioner of the mailing address and telephone number of the certificate holder or registrant; committing incompetency or misconduct in the practice of contracting; proceeding on a job without obtaining applicable building permits and inspections; and failing to provide a written statement explaining the consumer's rights under the Construction Industries Recovery Fund (the "Fund").

PRELIMINARY STATEMENT

Petitioner filed two Administrative Complaints against Respondent on January 10, 2000, and February 29, 2000, which became Division of Administrative Hearings ("DOAH") Case Numbers 00-2939 and 00-2940, respectively. Respondent timely requested an administrative hearing. The undersigned consolidated the two cases in consolidated Case Number 00-2939.

At the hearing, Petitioner presented the testimony of five witnesses and submitted 19 exhibits for admission in evidence. Respondent did not appear and did not submit any evidence.

The identity of the witness and exhibits, and any rulings regarding each, are set forth in the Transcript filed on September 18, 2000. Petitioner timely filed its Proposed Recommended Order ("PRO") on September 27, 2000. Respondent did not file a PRO.

FINDINGS OF FACT

1. Petitioner is the state agency responsible for regulating the practice of contracting. Respondent is licensed as a contractor with license number CC C018992.

2. At all relevant times, Respondent was registered or certified with Petitioner as the qualifying agent for Earl Benjamin and Company, Inc. ("EBCO"). As the qualifying agent, Respondent was responsible for all of EBCO's contracting activities in accordance with Section 489.1195. Respondent failed to obtain a certificate of authority from Petitioner.

3. On April 4, 1998, EBCO entered into a contract with Mr. Joseph Chapman ("Chapman") to repair a leak in the roof of Chapman's residence at 1880 Jessica Road, Clearwater, Florida. On the advice of Mr. Dale Edwards, a representative of EBCO, Chapman entered into a second contract with EBCO to repair the entire roof for an additional cost. None of the contracts or other documentation provided by EBCO to Chapman contained a notice explaining the consumer's rights under the Fund.

4. The contract prices for the first and second contracts were $4,500 and $7,500, respectively. After completing the work, Respondent sent another bill to Chapman for $1,750 for additional materials and repairs.

5. Chapman paid, and Respondent accepted, $13,210 as payment in full of all amounts owed to Respondent. The checks

   signed by Chapman were made payable to "Earl Benjamin and Company and/or EBCO."

6. After EBCO completed the work on the Chapman residence, the roof leaked in four places and continued to leak as of the date of hearing. Chapman contacted Respondent and other EBCO representatives repeatedly in attempt to stop the leaks. EBCO has been unable to stop the leaks in Chapman's home.

7. The Pinellas County Building Department (the "Building Department") never performed a final inspection approving the work performed by Respondent. The Building Department issued building permit number 175919 to Respondent on April 23, 1998. On May 26, 1998, Chapman indicated to the Building Department that the roof leaked, and an inspector for the Building Department inspected the roof on the same date. The inspector found that the birdcage was not reassembled, some flashing was too short, and other eaves and rates were not constructed properly. The inspector issued a red tag for the violations.

8. On June 16, 1998, the inspector inspected the roof again and issued a second red tag for some violations that remained uncorrected. On November 16, 1998, the inspector inspected the roof again and issued another red tag because the roof still leaked.

9. On January 14, 1999, the inspector met with Chapman and representatives for EBCO to address the continuing problems with

   the roof. The inspector instructed Respondent to update his address and licensing information.

10. On January 26, 1999, the inspector inspected the roof for the last time. The roof still leaked.

11. On May 9, 1998, EBCO entered into a contract with Jack and Dawn Wilcox ("Wilcox") to repair the roof and install roof vents in the Wilcox residence at 247 144th Avenue, Madeira Beach, Florida.

12. The contract price for the Wilcox job was $1,800. The Wilcoxes paid, and Respondent accepted, $1,800 as payment in full of all amounts owed to Respondent. The checks signed by the Wilcox's were made payable to "EBCO" or "EBCO Roofing."

13. After EBCO completed the work on the Wilcox residence, the roof leaked around the vents installed by Respondent. The work performed by Respondent suffered from incompetent workmanship including ragged and non-uniform holes cut into the roof for the vents.

14. Mr. Wilcox attempted to contact Respondent and other EBCO representatives repeatedly in an attempt to correct the leaks in the roof. No one from EBCO returned the messages from Mr. Wilcox. Mr. Wilcox attempted to physically locate Respondent at Respondent's business address, but Respondent's address was incorrect.

15. The Wilcoxes incurred additional expenses of $1,500 to correct problems caused by Respondent. On October 24, 1998, Mr.

    Wilcox entered into a contract with Kurt Dombrowski Roofing Contractor ("Dombrowski") to repair the leaks in the roof and to re-install the vents in the roof. Dombrowski correctly performed the work, and Wilcox paid Dombrowski $1,500. The Wilcoxes have no further problems with the roof.

16. Respondent never obtained a building permit for the work performed on the Wilcox roof. The Wilcox home was located within the jurisdiction of the City of Madeira Beach (the "City"). The City no longer has a building department. The Pinellas County Building Department assumed the responsibilities of the City. Respondent never obtained a building permit for the Wilcox job.

    CONCLUSIONS OF LAW

17. DOAH has jurisdiction over the subject matter and parties. The parties were duly noticed for the administrative hearing.

18. Petitioner has the burden of proof in this proceeding. Petitioner must show by clear and convincing evidence that Respondent committed the acts alleged in the Administrative Complaints and the reasonableness of any penalty to be imposed. Ferris v. Turlington, 510 So. 2d 292 (Fla. 1987).

19. Petitioner satisfied its burden of proof. Petitioner showed that Respondent committed each violation alleged in both Administrative Complaints.

20. Section 489.129(1)(j), (n), and (p) makes Respondent subject to discipline in accordance with the guidelines prescribed in Section 455.227(5) and Florida Administrative Code Rule 61G4-17.001. In addition, Rule 61G4-17.002 authorizes the undersigned to consider aggravating circumstances including uncorrected violations that exhibit incompetence, the number of violations, and the severity of the violations.

RECOMMENDATION

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

RECOMMENDED that the Board enter a Final Order finding Respondent guilty of violating Sections 489.119(2), 489.124(2), 489.129(1)(n) and (p), and 489.1425(1), imposing administrative fines in the aggregate amount of $3,200, requiring Respondent to pay restitution to Chapman and Wilcox in the respective amounts of $13,210 and $1,800, and requiring Respondent to pay costs of investigation and prosecution in the amount of $690.40.

DONE AND ENTERED this 9th day of October, 2000, in Tallahassee, Leon County, Florida.

DANIEL MANRY

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 www.doah.state.fl.us

Filed with the Clerk of the Division of Administrative Hearings this 9th day of October, 2000.

COPIES FURNISHED:

Rodney L. Hurst, Executive Director Construction Industry Licensing Board Department of Business and

Professional Regulation

7960 Arlington Expressway, Suite 300

Jacksonville, Florida 32211-7467

Barbara D. Auger, General Counsel Department of Business and

Professional Regulation Northwood Centre

1940 North Monroe Street Tallahassee, Florida 32399-0792

Robert A. Crabill, Esquire Department of Business and

Professional Regulation Northwood Centre

1940 North Monroe Street Tallahassee, Florida 32399-3060

Earl Henry Benjamin 9914 Connecticut Street

Gibsonton, Florida 33534

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: 00-002940PL

Orders for Case No: 00-002940PL