08-000721 Department Of Business And Professional Regulation, Construction Industry Licensing Board vs. Jeffrey J. Clark, D/B/A Jv Clark General Contractors, Inc.
 Status: Closed
Recommended Order on Thursday, July 10, 2008.


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Summary: Respondent signed a contract without providing required information, failed to complete a job for which he received payment, and did not address a failed inspection. Held: Respondent`s license is suspended until he pays a $2000 fine and makes restitution.

1STATE OF FLORIDA

4DIVISION OF ADMINISTRATIVE HEARINGS

8DEPARTMENT OF BUSINESS AND )

13PROFESSIONAL REGULATION, )

16CONSTRUCTION INDUSTRY LICENSING )

20BOARD, )

22)

23Petitioner, )

25)

26vs. ) Case No. 08-0721

31)

32JEFFREY J. CLARK, d/b/a JV CLARK GENERAL CONTRACTORS, )

41INC., )

43)

44)

45Respondent. )

47)

48RECOMMENDED ORDER

50This cause came on for final hearing before Harry L.

60Hooper, Administrative Law Judge with the Division of

68Administrative Hearings, on June 4, 2008, in Daytona Beach,

77Florida.

78APPEARANCES

79For Petitioner: Arthur Barksdale, IV, Esquire

85Wright, Fulford, Moorhead & Brown, P.A.

91145 North Magnolia Avenue

95Orlando, Florida 32801

98For Respondent: Jeffrey J. Clark, pro se

105JV Clark General Contractors, Inc.

1102027 South Ridgewood Avenue

114Edgewater, Florida 32132

117STATEMENT OF THE ISSUE

121The issue is whether disciplinary action should be taken

130against the contracting licenses held by Respondent, Jeffrey J.

139Clark, for the reasons stated in the Administrative Complaint.

148PRELIMINARY STATEMENT

150Petitioner, Department of Business and Professional

156Regulation (Department), filed an Administrative Complaint

162before the Construction Industry Licensing Board (Board),

169against Respondent, Jeffrey J. Clark (Mr. Clark), on

177September 19, 2007. The Administrative Complaint addressed

184Mr. Clark's license as a certified general contractor and as a

195certified roofing contractor, and as "qualifying agent" for JV

204Clark General Contractors, Inc.

208The Administrative Complaint alleged as follows:

214Count I: that Mr. Clark signed a contract that did not

225provide a registration or certification number as is required by

235Subsection 489.119(6)(b), Florida Statutes;

239Count II: that Mr. Clark failed to ensure that a contract

250he entered into for repair, restoration, improvement, or

258construction to residential real property contained a written

266statement explaining the consumer's rights under the

273Construction Industries Recovery Fund (Recovery Fund) as is

281required by Subsection 489.1425(1), Florida Statutes;

287Count III: that Mr. Clark engaged in financial

295mismanagement as described in Subsection 489.129(1)(g)2.,

301Florida Statutes;

303Count IV: that Mr. Clark abandoned a construction project,

312an act that is prohibited by Subsection 489.129(1)(j), Florida

321Statutes;

322Count V: that Mr. Clark failed to obtain a final

332inspection on a project as he was required to do under

343Subsection 489.129(1)(o), Florida Statutes; and

348Count VI: that Mr. Clark committed incompetence or

356misconduct in the practice of contracting as described in

365Subsection 489.129(1)(m), Florida Statutes.

369Mr. Clark filed an Election of Rights on October 8, 2007,

380that contested the allegations and demanded a hearing. The

389matter was forwarded to the Division of Administrative Hearings

398and was filed on February 13, 2008. The final hearing was set

410for April 15, 2008, in Daytona Beach, Florida. Because of a

421motion for continuance filed by Petitioner and a conflict

430experienced by the Administrative Law Judge, the hearing was

439ultimately held on June 4, 2008.

445At the hearing, the Department presented the testimony of

454three witnesses and offered 14 exhibits. All of the

463Department's exhibits were accepted into evidence. Mr. Clark

471testified and had one exhibit accepted into evidence.

479The one-volume Transcript was filed June 16, 2008. The

488Department timely filed a Proposed Recommended Order on June 26,

4982008, and it was considered in the preparation of this

508Recommended Order. Mr. Clark did not file a proposed

517recommended order.

519References to statutes are to Florida Statutes (2004),

527unless otherwise noted.

530FINDINGS OF FACT

5331. Mr. Clark, doing business as JV Clark General

542Contractors, Inc., is a Florida State certified general

550contractor with license number CGC 061010, and his license as of

561May 2, 2008, was "current, active." He has held this license

572since November 16, 1999, and there is no evidence of record that

584any license held by him has been the subject of disciplinary

595proceedings. In the same capacity Mr. Clark is a Florida State

606certified roofing contractor, with license number CCC 1327256

614and his license as of May 5, 2008, was "current, active."

6252. JV Clark General Contractors, Inc., has a Certificate

634of Authority as a contractor qualified business. Its license

643number is QB 0018745, and as of May 5, 2008, the license was

"656current, active." Mr. Clark is the "qualifying agent" for JV

666Clark General Contractors, Inc.

6703. Mr. Clark is the sole owner and is the registered agent

682of a business named the Affordable Door Company, Inc.

691(Affordable Door), which has an address of 2811 South Nova Road,

702Daytona Beach, Florida.

7054. The Department is the state agency charged with

714providing investigation and prosecutorial services to the Board.

7225. On or about August 20, 2004, Affordable Door entered

732into a written contract with the Sand Dollar Condominium (Sand

742Dollar). The contract provided that Affordable Door would sell

75113 fire doors to Sand Dollar and thereafter would install the

762doors. In entering into this agreement, Affordable Door was

771engaged in contracting, as that term is used in Subsection

781489.105(6), Florida Statutes.

7846. The contract did not include Mr. Clark's license number

794and did not contain a written notification of the Recovery Fund.

8057. The contract required Sand Dollar to pay Affordable

814Door a total of $13,374.40. On August 28, 2004, Sand Dollar

826paid $2,769 on the contract. On October 12, 2004, Sand Dollar

838paid $4,430.40 on the contract, and on February 1, 2005, Sand

850Dollar paid the balance.

8548. On December 6, 2004, Mr. Clark applied to the City of

866Daytona Beach Shores Building Department for a permit to perform

876the work contracted by Sand Dollar. The building permit

885application for the Sand Dollar job was made by JV Clark General

897Contractors, Inc., and listed an address of 2811 South Nova

907Road, Daytona Beach, Florida.

9119. Mr. Clark's license number, CGC 061010, was provided on

921the permit application. The permit, number BP2005-41, was

929issued on December 20, 2004. The permit called for replacing

939stair doors and frames within Sand Dollar. The permit was

949signed by Mr. Clark and was notarized.

95610. The manufacturer of the doors to be installed required

966that the doors have their jams filled with grout in order to

978meet standards set forth in the Daytona Beach Shores Building

988Code. However, the grouting was not accomplished. As a result,

998when Daytona Beach Shores Building Inspector Steve Edmunds

1006inspected the job, he found the work to be deficient.

101611. Marlene Wuester is the association manager for Sand

1025Dollar. She is responsible for the operation of the 57-unit

1035building. When Ms. Wuester learned that the doors had failed

1045the inspection, she attempted to contact Mr. Clark. She sent a

1056letter dated April 20, 2006, to Mr. Clark at the 2811 South Nova

1069Road address informing him that if he did not cause the doors to

1082meet the required standards that Sand Dollar would hire another

1092contractor to do it, and that Sand Dollar would thereafter seek

1103damages.

110412. Mr. Clark did not respond to the letter and did not

1116otherwise respond to Ms. Wuester's efforts to contact him.

1125Ultimately, Sand Dollar paid Flores-Hager and Associates, Inc.,

1133$950.00 and General Mechanical Corporation $3,900.00 to bring

1142the doors into compliance with the applicable code.

115013. Mr. Clark testified that Affordable Door was managed

1159by Dave Randolph and that generally the company sold doors to

1170other contractors. The contract with Sand Dollar was

1178exceptional and even though Mr. Clark was the permittee, the

1188installer was a man named Jim St. Louis.

119614. Mr. Clark asserted that he did not receive

1205communications from Sand Dollar, and therefore could not respond

1214to Sand Dollar, because his business moved from the 2811 South

1225Nova Road address. However, as the licensed contractor, it was

1235Mr. Clark's duty to see that the job was completed in accordance

1247with the applicable building code.

1252CONCLUSIONS OF LAW

125515. The Division of Administrative Hearings has

1262jurisdiction over the subject matter of and the parties to this

1273proceeding. § 120.57(1), Fla. Stat. (2007).

127916. The Department has the burden of proving by clear and

1290convincing evidence the allegations against Mr. Clark alleged in

1299the Administrative Complaint. Department of Banking and Finance

1307v. Osborne Stern and Co. , 670 So. 2d 932 (Fla. 1996) and Ferris

1320v. Turlington , 510 So. 2d 292 (Fla. 1987).

132817. Subsection 489.129(1), Florida Statutes, provides in

1335pertinent part, as follows:

1339§ 489.129. Disciplinary proceedings

1343(1) The board may take any of the

1351following actions against any

1355certificateholder or registrant: place on

1360probation or reprimand the licensee, revoke,

1366suspend, or deny the issuance or renewal of

1374the certificate, registration, or

1378certificate of authority, require financial

1383restitution to a consumer for financial harm

1390directly related to a violation of a

1397provision of this part, impose an

1403administrative fine not to exceed $10,000

1410per violation, require continuing education,

1415or assess costs associated with

1420investigation and prosecution, if the

1425contractor, financially responsible officer,

1429or business organization for which the

1435contractor is a primary qualifying agent, a

1442financially responsible officer, or a

1447secondary qualifying agent responsible under

1452s. 489.1195 is found guilty of any of the

1461following acts:

1463* * *

1466(g) Committing mismanagement or misconduct

1471in the practice of contracting that causes

1478financial harm to a customer. Financial

1484mismanagement or misconduct occurs when:

1489* * *

14922. The contractor has abandoned a

1498customer's job and the percentage of

1504completion is less than the percentage of

1511the total contract price paid to the

1518contractor as of the time of abandonment,

1525unless the contractor is entitled to retain

1532such funds under the terms of the contract

1540or refunds the excess funds within 30 days

1548after the date the job is abandoned; or

1556* * *

1559(i) Failing in any material respect to

1566comply with the provisions of this part or

1574violating a rule or lawful order of the

1582board.

1583(j) Abandoning a construction project in

1589which the contractor is engaged or under

1596contract as a contractor. A project may be

1604presumed abandoned after 90 days if the

1611contractor terminates the project without

1616just cause or without proper notification to

1623the owner, including the reason for

1629termination, or fails to perform work

1635without just cause for 90 consecutive days.

1642* * *

1645(m) Committing incompetency or misconduct

1650in the practice of contracting.

1655* * *

1658(o) Proceeding on any job without obtaining

1665applicable local building department permits

1670and inspections.

167218. Subsection 489.119(6)(b), Florida Statutes, provides

1678in part as follows:

1682§ 489.119. Business organizations;

1686qualifying agents

1688* * *

1691(6)(b) The registration or certification

1696number of each contractor or certificate of

1703authority number for each business

1708organization shall appear in each offer of

1715services, business proposal, bid, contract,

1720or advertisement, regardless of medium, as

1726defined by board rule, used by that

1733contractor or business organization in the

1739practice of contracting.

174219. Subsection 489.1425(1), Florida Statutes, provides in

1749part as follows:

1752§ 489.1425. Duty of contractor to notify

1759residential property owner of recovery fund

1765(1) Any agreement or contract for

1771repair, restoration, improvement, or

1775construction to residential real property

1780must contain a written statement explaining

1786the consumer's rights under the recovery

1792fund, except where the value of all labor

1800and materials does not exceed $ 2,500. The

1809written statement must be substantially in

1815the following form:

1818FLORIDA HOMEOWNERS' CONSTRUCTION

1821RECOVERY FUND

1823PAYMENT MAY BE AVAILABLE FROM THE

1829FLORIDA HOMEOWNERS' CONSTRUCTION

1832RECOVERY FUND IF YOU LOSE MONEY ON A

1840PROJECT PERFORMED UNDER CONTRACT, WHERE

1845THE LOSS RESULTS FROM SPECIFIED

1850VIOLATIONS OF FLORIDA LAW BY A LICENSED

1857CONTRACTOR. FOR INFORMATION ABOUT THE

1862RECOVERY FUND AND FILING A CLAIM,

1868CONTACT THE FLORIDA CONSTRUCTION

1872INDUSTRY LICENSING BOARD AT THE

1877FOLLOWING TELEPHONE NUMBER AND ADDRESS:

1882The statement shall be immediately followed

1888by the board's address and telephone number

1895as established by board rule.

190020. Mr. Clark violated Subsection 489.129(1)(i), Florida

1907Statutes, as alleged in Count I, by failing to have his license

1919number appear on the contract between Affordable Doors and Sand

1929Dollar, as he was required to do by Subsection 489.119(6)(b),

1939Florida Statutes.

194121. Mr. Clark violated Subsection 489.129(1)(i), Florida

1948Statutes, as alleged in Count II, by failing to have the

1959language appear on the contract between Affordable Doors and

1968Sand Dollar, which is required by Subsection 489.1425(1),

1976Florida Statutes.

197822. Mr. Clark violated Subsection 489.129(1)(g)2., Florida

1985Statutes, as alleged by Count III, by abandoning the job with

1996Sand Dollar after he had been paid the contract price, which is

2008financial mismanagement.

201023. Mr. Clark violated Subsection 489.129(1)(j), Florida

2017Statutes, as alleged by Count IV by abandoning the job, by

2028failing to resolve the issues raised by the final inspection.

203824. Although it was alleged by Count V that Mr. Clark

2049violated Subsection 489.129(1)(o), Florida Statutes, by

2055proceeding on a job without obtaining applicable local building

2064department permits and inspections, the alleged subsection does

2072not address the failure to obtain a permit. Accordingly, Count

2082V should be dismissed.

208625. Mr. Clark violated Subsection 489.129(1)(m), Florida

2093Statutes, as alleged by Count VI. His work in installing fire

2104doors in accordance with the building permit at the Sand Dollar

2115site was not sufficient to be certified by the Daytona Shores

2126Building Department thereby causing financial harm to a

2134customer.

213526. Florida Administrative Code Rule 61G4-17.002 provides

2142matters to be considered in aggravation and mitigation as

2151follows:

215261G4-17.002 Aggravating and Mitigating

2156Circumstances.

2157Circumstances which may be considered for

2163the purposes of mitigation or aggravation of

2170penalty shall include, but are not limited

2177to, the following:

2180(1) Monetary or other damage to the

2187licensee's customer, in any way associated

2193with the violation, which damage the

2199licensee has not relieved, as of the time

2207the penalty is to be assessed. (This

2214provision shall not be given effect to the

2222extent it would contravene federal

2227bankruptcy law.)

2229(2) Actual job-site violations of building

2235codes, or conditions exhibiting gross

2240negligence, incompetence, or misconduct by

2245the licensee, which have not been corrected

2252as of the time the penalty is being

2260assessed.

2261(3) The danger to the public.

2267(4) The number of complaints filed against

2274the licensee.

2276(5) The length of time the licensee has

2284practiced.

2285(6) The actual damage, physical or

2291otherwise, to the licensee's customer.

2296(7) The deterrent effect of the penalty

2303imposed.

2304(8) The effect of the penalty upon the

2312licensee's livelihood.

2314(9) Any efforts at rehabilitation.

2319(10) Any other mitigating or aggravating

2325circumstances.

232627. Applying the facts of this case to Florida

2335Administrative Code Rule 61G4-17.002, it is determined that

2343Mr. Clark has had a license since November 16, 1999, and he has

2356not been disciplined by the Board. On the other hand, his

2367transgressions are serious in that improperly installed fire

2375doors pose a danger to the public, and his failure to complete

2387the contract caused a monetary loss to the Sand Dollar.

2397Balancing these competing considerations, results in a

2404determination that the penalty should be in the "normal" range.

241428. Florida Administrative Code Rule 61G4-17.001 provides

2421in part as follows:

242561G4-17.001 Normal Penalty Ranges.

2429(1) The following guidelines shall be

2435used in disciplinary cases, absent

2440aggravating or mitigating circumstances and

2445subject to other provisions of this chapter.

2452* * *

2455(g) Section 489.129(1)(g), F.S.:

2459Mismanagement or misconduct causing

2463financial harm to the customer.

2468FIRST OFFENSE

2470PENALTY RANGE

2472MINIMUM MAXIMUM

2474$1,500 fine and/or $5,000 fine

2481probation, or and/or

2484suspension probation, or

2487suspension

2488* * *

2491(i) Section 489.129(1)(i), F.S.:

2495Failing in any material respect to comply

2502with the provisions of Part I of Chapter

2510489, F.S.

2512PENALTY RANGE

2514MINIMUM MAXIMUM

2516Use penalty herein Use penalty herein

2522listed for the listed for the

2528violation most closely violation most

2533resembling the act closely resembling

2538underlying the local the act underlying

2544discipline; the local

2547discipline

2548* * *

25514. Section 489.1425, F.S.: Failure to

2557notify residential property owner of

2562recovery fund.

2564FIRST OFFENSE

2566PENALTY RANGE

2568MINIMUM MAXIMUM

2570$250 fine $500 fine

2574* * *

25779. Section 489.119(6)(b), F.S.: license

2582number not appearing in advertisement.

2587FIRST OFFENSE

2589PENALTY RANGE

2591MINIMUM MAXIMUM

2593$250 fine $1,000 fine

2598* * *

2601(j) Section 489.129(1)(j), F.S.:

2605Abandonment.

2606FIRST OFFENSE

2608PENALTY RANGE

2610MINIMUM MAXIMUM

2612$2,500 fine and/or $7,500 fine

2619probation, or and/or

2622suspension probation, or

2625suspension

2626* * *

2629(m) Misconduct or incompetency in the

2635practice of contracting, shall include, but

2641is not limited to:

2645* * *

26482. Violation of any provision of Chapter

265561G4, F.A.C., or Chapter 489, Part I., F.S.

2663FIRST OFFENSE

2665PENALTY RANGE

2667MINIMUM MAXIMUM

2669$1,000 fine and/or $2,500 fine

2676probation, or and/or

2679suspension probation, or

2682suspension

2683* * *

26864. The following guidelines shall apply

2692to cases involving misconduct or

2697incompetency in the practice of contracting,

2703absent aggravating or mitigating

2707circumstances:

2708(n) Section 489.129(1)(n), F. S.: Being

2714found guilty of gross negligence, repeated

2720negligence, or negligence resulting in a

2726significant danger to life or property.

2732FIRST OFFENSE

2734PENALTY RANGE

2736MINIMUM MAXIMUM

2738$1,000 fine $3,000 fine

2744and probation,

2746suspension or

2748revocation

2749* * *

2752(o) Section 489.129(1)(o), F.S.:

2756Proceeding on any job without obtaining

2762applicable local building department permits

2767and/or inspections.

2769* * *

27722. Failure to obtain inspections.

2777FIRST OFFENSE

2779PENALTY RANGE

2781MINIMUM MAXIMUM

2783$250 $1,000 fine

2787and/or

2788probation, or

2790suspension

2791* * *

2794(5) In addition, the board shall order the

2802contractor to make restitution in the amount

2809of financial loss suffered by the consumer

2816to the extent that such order does not

2824contravene federal bankruptcy law.

2828RECOMMENDATION

2829Based upon the Findings of Fact and Conclusions of Law, it

2840is

2841RECOMMENDED that the Florida Construction Industry

2847Licensing Board enter an order finding that Jeffrey J. Clark,

2857d/b/a JV Clark General Contractors, Inc., is guilty of Counts I

2868through IV and Count VI, and that licenses numbered CGC 061010,

2879CCC 1327256, and QB 0018745 be suspended until such time as

2890Jeffrey J. Clark, d/b/a JV Clark General Contractors, Inc., pays

2900a fine in the amount of $2,000.00 and makes restitution to the

2913Sand Dollar Condominium Association in the amount of $4,850.00.

2923DONE AND ENTERED this 10th day of July, 2008, in

2933Tallahassee, Leon County, Florida.

2937S

2938HARRY L. HOOPER

2941Administrative Law Judge

2944Division of Administrative Hearings

2948The DeSoto Building

29511230 Apalachee Parkway

2954Tallahassee, Florida 32399-3060

2957(850) 488-9675 SUNCOM 278-9675

2961Fax Filing (850) 921-6847

2965www.doah.state.fl.us

2966Filed with the Clerk of the

2972Division of Administrative Hearings

2976this 10th day of July, 2008.

2982COPIES FURNISHED :

2985Jeffrey J. Clark

2988JV Clark General Contractors, Inc.

29932027 South Ridgewood Avenue

2997Edgewater, Florida 32132

3000Arthur Barksdale, IV, Esquire

3004Wright, Fulford, Moorhead & Brown, P.A.

3010145 North Magnolia Avenue

3014Orlando, Florida 32801

3017Ned Luczynski, General Counsel

3021Department of Business and

3025Professional Regulation

3027Northwood Centre

30291940 North Monroe Street

3033Tallahassee, Florida 32399-0792

3036G. W. Harrell, Executive Director

3041Construction Industry Licensing Board

3045Department of Business and

3049Professional Regulation

3051Northwood Centre

30531940 North Monroe Street

3057Tallahassee, Florida 32399-0792

3060NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

3066All parties have the right to submit written exceptions within

307615 days from the date of this Recommended Order. Any exceptions

3087to this Recommended Order should be filed with the agency that

3098will issue the Final Order in this case.

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PDF
Date
Proceedings
PDF:
Date: 07/10/2008
Proceedings: Recommended Order
PDF:
Date: 07/10/2008
Proceedings: Recommended Order cover letter identifying the hearing record referred to the Agency.
PDF:
Date: 07/10/2008
Proceedings: Recommended Order (hearing held June 4, 2008). CASE CLOSED.
PDF:
Date: 06/27/2008
Proceedings: Proposed Recommended Order filed.
Date: 06/16/2008
Proceedings: Transcript filed.
Date: 06/04/2008
Proceedings: CASE STATUS: Hearing Held.
PDF:
Date: 05/30/2008
Proceedings: Petitioner`s Disclosure of Witnesses filed.
PDF:
Date: 05/13/2008
Proceedings: Notice of Appearance (filed by A. Barksdale).
PDF:
Date: 05/02/2008
Proceedings: Order Re-scheduling Hearing (hearing set for June 4, 2008; 1:00 p.m.; Daytona Beach, FL).
PDF:
Date: 04/07/2008
Proceedings: Order Granting Continuance and Re-scheduling Hearing (hearing set for May 21, 2008; 1:00 p.m.; Daytona Beach, FL).
PDF:
Date: 04/07/2008
Proceedings: Notice of Service of Interrogatories filed.
PDF:
Date: 04/07/2008
Proceedings: Petitioner`s First Request for Production to Respondent filed.
PDF:
Date: 04/07/2008
Proceedings: Petitioner`s First Request for Admissions to Respondent filed.
PDF:
Date: 04/07/2008
Proceedings: Unilateral Motion to Continue filed.
PDF:
Date: 02/26/2008
Proceedings: Notice of Hearing (hearing set for April 15, 2008; 1:00 p.m.; Daytona Beach, FL).
PDF:
Date: 02/26/2008
Proceedings: Order of Pre-hearing Instructions.
PDF:
Date: 02/25/2008
Proceedings: Administrative Complaint (complete copy) filed.
PDF:
Date: 02/21/2008
Proceedings: Unilateral Response to Initial Order filed.
PDF:
Date: 02/14/2008
Proceedings: Initial Order.
PDF:
Date: 02/13/2008
Proceedings: Administrative Complaint filed.
PDF:
Date: 02/13/2008
Proceedings: Election of Rights filed.
PDF:
Date: 02/13/2008
Proceedings: Referral Letter filed.

Case Information

Judge:
HARRY L. HOOPER
Date Filed:
02/13/2008
Date Assignment:
02/14/2008
Last Docket Entry:
07/10/2008
Location:
Daytona Beach, Florida
District:
Northern
Agency:
Department of Business and Professional Regulation
 

Counsels

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Related Florida Statute(s) (6):

Related Florida Rule(s) (2):