STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

RECOMMENDED ORDER

On July 15, 2009, a duly-noticed hearing was held in Bunnell, Florida, before Lisa Shearer Nelson, an Administrative Law Judge assigned by the Division of Administrative Hearings.

APPEARANCES

For Petitioner: Kyle Christopher, Esquire

Assistant General Counsel Department of Business and

Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399

For Respondent: Jeffrey Luis Carrasco, pro se

JCSI Certified Roofing Contractors 4600 East Moody Boulevard

Building 16, Apartment 1

Bunnell, Florida 32110 STATEMENT OF THE ISSUES

The issues to be determined are whether Respondent violated the charged provisions of Section 489.129, Florida Statutes

(2006), and if so, what penalty should be imposed for his conduct?

PRELIMINARY STATEMENT

On April 25, 2008, the Department of Business and Professional Regulation (Department or DBPR) filed a six-count Administrative Complaint against Respondent alleging several violations of Chapter 489, Florida Statutes, in connection with a contract Respondent or his company, JCSI Certified Roofing Contractors, undertook to install a roof for John and Christine Shields. Specifically, the Administrative Complaint charged Respondent with violating Section 489.129(1)(i) by failing to include his license or certificate of authority number on the contract, in violation of Section 489.119(6)(b), Florida Statutes (Count I); violating Section 489.120(1)(i), Florida Statutes, by failing to apply for a permit within 30 days of receiving more than ten percent of the contract price as an initial payment, in violation of Section 489.126(2), Florida Statutes (Count II); violating Section 489.129(1)(g)2., Florida Statutes, by committing mismanagement or misconduct in the practice of contracting that causes financial harm to a customer (Count III); violating Section 489.129(1)(j), Florida Statutes, by abandoning a construction project (Count IV); violating Section 489.129(1)(o), Florida Statutes, by proceeding on any job without obtaining applicable local building department permits or inspections (Count V); and violating Section 489.129(1)(m),

Florida Statutes, by committing incompetency or mismanagement in the practice of contracting (Count VI). Respondent disputed the allegations in the Administrative Complaint, and the case was referred to the Division of Administrative Hearings on March 26, 2009, for assignment of an administrative law judge.

On April 16, 2009, the matter was noticed for hearing to be conducted June 12, 2009. At the request of the Department, the matter was rescheduled for July 15, 2009, and proceeded as scheduled. Petitioner presented the testimony of John Shields and Christine Shields, and Petitioner's Exhibits A-E were admitted into evidence. Respondent Jeffrey Carrasco testified on his own behalf, and Respondent's Exhibits 1-2 were admitted.

A Transcript of the proceedings was filed with the Division on July 29, 2009, and the Department filed its Proposed Recommended Order August 10, 2009. On August 18, 2009, Respondent filed a document entitled Unilateral Response to Initial Order that appears to be a description of the evidence submitted at hearing. Both documents have been carefully considered in the preparation of this Recommended Order. Unless otherwise indicated, all references to Florida Statutes are to the codification in effect at the time the events occurred.

FINDINGS OF FACT

1. Respondent is and has been, at all times material to the allegations in the Administrative Complaint, a certified roofing

   contractor in the State of Florida, having been issued license number CCC 132557.

2. At all times material to the allegations of the Administrative Complaint, Respondent was the primary qualifying agent for JCSI Certified Roofing Contractors (JCSI), which has been issued certificate of authority number QB 47568.

3. On or about April 7, 2006, Respondent, doing business as JCSI, entered into a contract with Mr. and Mrs. John Shields to install a stone coated steel shingle roof at 518 Ponte Vedra Boulevard, in Ponte Vedra Beach, Florida. The contract amount was $50,850.00, and the contract included the following work:

   Scope of Work: Steel roof to be mechanically fastened on a single ply system and consist [sic] of the following:

   
   

   1. Peel & Stick base sheet (same as Ice and water Shield), stone coated drip edge.

   2. Mechanically fasten roof panels according to wind chart specifications.

   3. Matching stone coated trim.

   4. All flashing to be minimum 26 gauge. Vents, valley metals, and flashing as required.

   5. Stone coated steel roof, color selection by Client.

   6. Steel roof to be installed to manufacturers wind chart specifications.

   7. All work to be done in a workmanlike manner with complete job cleanup of roofing debris placed in on-site container provided by Owner/Contractor.

4. The draw schedule in the contract was listed as follows: Deposit $5,000.00 at signing (dry-

   in);$15,000.00 order materials;

   $15,600.00 At beginning of production, Balance at completion.

5. The contract did not contain Respondent's license number or the certificate of authority number of JCSI Certified Roofing Contractors.

6. The Shields paid the initial deposit of $5,000.00 upon signing the contract. Within a couple of weeks, Respondent performed the dry-in for the roof.

7. On August 17, 2006, the Shields paid an additional

   
   

   $15,000.00 with check number 1461, which was deposited into JCSI's account August 18, 2006. In total, the Shields paid

   $20,000.00 toward the contract price.

   
   

8. Respondent also installed flashing for the project, although the timing of this part of the job is unclear from the record. However, from testimony presented, it is found that the flashing was installed sometime in August 2006, in the two weeks before or after the August 17, 2006 payment. No other work was performed on the job by Respondent or JCSI.

9. Respondent ordered materials for the roof from Gerard Roofing in June 2006. However, he did not receive the materials from the company because his credit with Gerard was over- extended. He claims that he reported this to the Shields and suggested that they pay for the materials directly and deduct that amount from the contract price, and he would finish the job.

10. The order form from Gerard Roofing Technologies indicates that the roofing materials ordered in June 2006 totaled

    $21,570.11. Assuming that the order form represented materials

    for the Shields job only, had the Shields agreed to Respondent's proposed alteration in the contract, they would have paid

    $41,570.11 toward the completion of the roof at a time when the only work performed was the initial dry-in and possibly the flashing installation. This would have represented 81.75% of the contract price. As it is, the Shields had paid 39.33% of the contract price already.

11. The Shields did not agree with Respondent's proposed alteration of the contract. By February 2007, no additional work had been performed on the roof and Respondent did not re-order the roofing materials. At that point, Mr. Shields terminated the contract.

12. The investigative costs incurred by the Department, not including those associated with an attorney's time, are $288.22.

    CONCLUSIONS OF LAW

    
    

13. The Division of Administrative Hearings has jurisdiction over the subject matter and the parties to this action in accordance with Sections 120.569 and 120.57(1), Florida Statutes (2009).

14. This is a disciplinary action by Petitioner in which Petitioner seeks to discipline Respondent's certification as a roofer and his certificate of authority as qualifying agent for his roofing company. Petitioner bears the burden of proof to demonstrate the allegations in the Administrative Complaint by clear and convincing evidence. Department of Banking and Finance

    v. Osborne Sterne & Co., 670 So. 2d 932 (Fla. 1996); Ferris v. Turlington, 510 So. 2d 292 (Fla. 1987).

15. Clear and convincing evidence:

    
    

    [R]equires that the evidence must be found to be credible; the facts to which the witnesses testify must be distinctly remembered; the testimony must be precise and lacking in confusion as to the facts in issue. The evidence must be of such a weight that it produces in the mind of the trier of fact a firm belief or conviction, without hesitancy, as to the truth of the allegations sought to be established.

    
    

    In re Henson, 913 So. 2d 579, 590 (Fla. 2005), quoting Slomowitz

    
    

    v. Walker, 429 So. 797, 800 (Fla. 4th DCA 1983).

    
    

16. The Administrative Complaint charges Respondent with violating several subsections of Section 489.129, Florida Statutes, which states in pertinent part:

    (1) 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, registration, or certificate of authority, require financial restitution to a consumer for financial harm directly related to a violation of a provision of this part, impose an administrative fine not to exceed $10,000 per violation, require continuing education, or assess costs associated with investigation and prosecution, if the contractor, financially responsible officer, or business organization for which the contractor is a primary qualifying agent, a financially responsible officer, or a secondary qualifying agent responsible under s. 489.1195 is found guilty of any of the following acts:

    
    

    * * *

    (g) Committing mismanagement or misconduct in the practice of contracting that causes financial harm to a customer. Financial mismanagement or misconduct occurs when:

    
    

    * * *

    
    

    2. The contractor has abandoned a customer's job and the percentage of completion is less than the percentage of the total contract price paid to the contractor as of the time of abandonment, unless the contractor is entitled to retain such funds under the terms of the contract or refunds the excess funds within 30 days after the date the job is abandoned; . . .

    
    

    * * *

    
    

    1. Failing in any material respect to comply with the provisions of this part or violating a rule or lawful order of the board.

       
       

    2. Abandoning a construction project in which the contractor is engaged or under contract as a contractor. A project may be presumed abandoned after 90 days if the contractor terminates the project without just cause or without proper notification to the owner, including the reason for termination, or fails to perform work without just cause for 90 consecutive days.

    
    

    * * *

    
    

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

    
    

17. Respondent is and was the primary qualifying agent for JCSI during all the times material to this proceeding. Subsection 489.1195(1)(a), Florida Statutes, provides:

    1. A qualifying agent is a primary qualifying agent unless he or she is the secondary qualifying agent under this section.

       1. All primary qualifying agents for a business organization are jointly and equally responsible for supervision of all operations of the business organization; for all field work at all sites; and for financial matters, both for the organization in general and for each specific job.

          
          

          Accordingly, Respondent was responsible for the supervisions of all operations, including financial matters, related to the contract entered with the Shields.

18. Count I of the Administrative Complaint charges Respondent with violating Section 489.129(1)(j), Florida Statutes, by virtue of violating Section 489.119(6)(b), Florida Statutes, which requires:

    1. The registration or certification number of each contractor or certificate of authority number for each business organization shall appear in each offer of services, business proposal, bid, contract, or advertisement, regardless of medium, as defined by board rule, used by that contractor or business organization in the practice of contracting.

    
    

19. The contract signed by both parties does not include either Respondent's roofing contractor's license number or JCSI's certificate of authority number. Respondent has violated Section 489.119(6)(b), Florida Statutes, and therefore has violated Section 489.129(1)(i), Florida Statutes. The Department has therefore demonstrated by clear and convincing evidence the charges in Count I of the Administrative Complaint.

20. The Department announced at hearing that it was not pursuing Count II of the Administrative Complaint. No further

    discussion of this Count is necessary, and Count II should be dismissed.

21. Count III of the Administrative Complaint charges Respondent with violating Section 489.129(1)(g)2., Florida Statutes. This charge of financial management turns on whether Respondent abandoned the job for which he contracted, and if he has abandoned the job, whether the percentage of completion is less than the percentage of the total contract price paid to the contractor at the time of the abandonment.

22. Here, Respondent did not complete any work on the job for a period of over five months. The evidence demonstrates that, at the time John Shields terminated his services, Respondent had received approximately 40 percent of the contract price, and had completed the dry-in and the flashing work. What is not clear, however, is what percentage of the total job the dry-in and flashing work would represent. While it appears that the dry-in and flashing work would represent less than 40 percent of the total job, no evidence was presented to support this supposition. Without that evidence, it cannot be determined that Respondent had received more funds than represented by the work accomplished. Compare Department of Business and Professional Regulation v. Raymond Spencer, No. 08-226 (DOAH Apr. 18, 2008). Under these circumstances, the Department has not proven a violation of Section 489.129(1)(g)2., Florida Statutes, by clear

    and convincing evidence. Accordingly, Count III should be dismissed.

23. Count IV alleges that Respondent abandoned the construction project in violation of Section 489.129(1)(j), Florida Statutes. This subjection provides that "a project may be presumed to be abandoned after 90 days if the contractor . . . fails to perform work without just cause for 90 days."

    Respondent denied that he abandoned the job, and tried to lay the delays in construction at the feet of Mrs. Shields. He also points to his ultimate termination as the basis for stopping work on the project.

24. Respondent's testimony is simply not credible. First, while he submitted documentation from McElroy Metal, Inc. (Respondent's Exhibit 1), his assertions both at hearing and in his post-hearing submittal regarding McElroy Metal are contradicted by the documentation itself. Respondent stated that the McElroy Metal documents represented the flashings that he ordered prior to receiving the check when the Shields were ready for their flashings. Respondent insisted at hearing and in his post-hearing submittal that these documents represented flashing materials ordered and paid for before he received the August payment for $15,000. The documents, which do not reference the Shields, indicate that they related to an order placed

    October 12, 2006, well after the August 17, 2006 payment, for high-side tie-in trim. Further, while Respondent insisted that

    payments made were not necessarily meant for ordering materials and that the payment schedule was meant to be more fluid, his assertions are inconsistent with the language of the contract itself.

25. Similarly, the order form for Gerard Roofing Technologies indicates only that he ordered materials for the Shields' roof in June. While he testified that he had a cash flow problem and could not obtain the materials when ordered, he did not explain why he could not order them when paid an additional $15,000 in August. Nor did he give any explanation why he could not pay for the materials at some time later, before Mr. Shields terminated his contract. The evidence is clear and convincing that Respondent did not work on the project after August 2006, for a period exceeding 90 days, and that Respondent's credit problems do not constitute just cause for the delay. The Department has demonstrated a violation of Section 489.129(1)(j), Florida Statutes, as alleged in Count IV of the Administrative Complaint.

26. The Department announced at hearing that it was not pursuing the charge in Count V, and no evidence was submitted in relation to the charge. Therefore, no further discussion of Count V is necessary and it should be dismissed.

27. Count VI charges a violation of Section 489.129(1)(m), Florida Statutes, alleging that Respondent committed incompetency or misconduct in the practice of contracting. The evidence is

    clear and convincing that Respondent received payment of $15,000 specifically identified for ordering materials and did not order materials with these funds, and that he did not complete the job he contracted to complete. Clear and convincing evidence has been presented to prove a violation of Count VI.

28. In summary, the Department has proven by clear and convincing evidence the violations charged in Counts I, IV and VI of the Administrative Complaint. It chose not to pursue Counts II and V, and Count III was not demonstrated by clear and convincing evidence.

29. Section 455.2273(2), Florida Statutes, requires professional licensing boards within the Department to create disciplinary guidelines that "specify a meaningful range of designated penalties based upon the severity and repetition of specific offenses." Administrative law judges are required to recommend penalties consistent with the guidelines, and explain in writing any aggravating or mitigating circumstances upon which a penalty recommendation is based. § 455.2273(5), Fla. Stat.

30. Florida Administrative Code Rule 61G4-17.001 provides the range of penalties for the violations of Chapter 489, Florida Statutes. For a first violation of Section 489.129(1)(i), Florida Statutes, by virtue of violating Section 489.119(6)(b) (Count I), Florida Statutes, the recommended penalty is a $250 fine. For a first violation of Section 489.129(1)(j), Florida Statutes, (Count IV), the recommended penalty range is a $2,500

fine and/or probation or suspension of the license.1/ For a first violation of Section 489.129(1)(m)(Count VI), the recommended penalty range is a $1,000 fine and/or probation or suspension. The Disciplinary Guidelines also require that "the board shall order the contractor to make restitution in the amount of financial loss suffered by the consumer to the extent that such order does not contravene federal bankruptcy law." Fla. Admin. Code R. 61G4-17.001(5). While the Department refers to repeat violations, there was no evidence presented of prior disciplinary action against Respondent.

RECOMMENDATION

Upon consideration of the facts found and conclusions of law reached, it is

RECOMMENDED that the Construction Industry Licensing Board enter a Final Order finding Respondent guilty of violating Subsections 489.129(1)(i), (j) and (m), Florida Statutes, as charged in Counts I, IV and VI of the Administrative Complaint; finding that Respondent did not violate Subsections 489.129(1)(g)2., (i) and (o), Florida Statutes, as charged in Counts II, III and V of the Administrative Complaint and dismissing those counts; imposing an administrative fine of $250 for Count I; imposing an administrative fine of $2,500 and placing Respondent's license on probation for a period of four years for Count IV; imposing an administrative fine of $2,500 for Count VI; requiring restitution in the amount of $15,000.00 to

John and Christine Shields2/ in accordance with Florida Administrative Code Rule 61G4-17.001(5); and imposing costs in the amount of $288.22.

DONE AND ENTERED this 28th day of August, 2009, in Tallahassee, Leon County, Florida.

S

LISA SHEARER NELSON

Administrative Law Judge

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

(850) 488-9675

Fax Filing (850) 921-6847 www.doah.state.fl.us

Filed with the Clerk of the Division of Administrative Hearings this 28th day of August, 2009.

ENDNOTES

1/ Petitioner indicates in its Proposed Recommended Order that the penalty for a first-time violation of Section 489.129(1)(j), Florida Statutes, is a $5,000 fine and/or probation or revocation. However, the copy of Rule 61G4-17.001 available on the Florida Administrative Code website indicates that the fine for a first time offense is $2,500.

2/ Petitioner suggested restitution in the amount of $14,268.81 to John and Christine Shields, giving Respondent credit for the cost of the flashing material purportedly paid to McElroy Metal. However, as noted above, Respondent's Exhibit 1 reflects an order date well after all testimony indicated all work on the Shields home had stopped. Further, the exhibit does not reference the Shields job. The Shields had given an initial $5,000 to Respondent at the commencement of the job. The undersigned declines to recommend giving credit for materials ordered after all work on the job had stopped.

COPIES FURNISHED:

Kyle Christopher, Esquire Department of Business and

Professional Regulation

1940 North Monroe Street, Suite 42

Tallahassee, Florida 32399-2202

Jeffrey Luis Carrasco

JCSI Certified Roofing Contractors 4600 East Moody Boulevard

Building 16, Apartment 1

Bunnell, Florida 32110

G. W. Harrell, Executive Director Construction Industry Licensing Board Department of Business and

Professional Regulation 1940 North Monroe Street

Tallahassee, Florida 32399-2202

Ned Luczynski, General Counsel Department of Business and

Professional Regulation 1940 North Monroe Street

Tallahassee, Florida 32399-2202

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: 09-001574

Orders for Case No: 09-001574