09-001574 Department Of Business And Professional Regulation, Construction Industry Licensing Board vs. Jeffrey Luis Carrasco, D/B/A Jcsi Certified Roofing Contractors
 Status: Closed
Recommended Order on Friday, August 28, 2009.


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Summary: Petitioner proved by clear and convincing evidence that Respondent violated Section 489.129(i)(g)2., (i) and (m), Florida Statutes. All other charges should be dismissed.

1STATE OF FLORIDA

4DIVISION OF ADMINISTRATIVE HEARINGS

8DEPARTMENT OF BUSINESS AND )

13PROFESSIONAL REGULATION, )

16CONSTRUCTION INDUSTRY )

19LICENSING BOARD, )

22)

23Petitioner, )

25)

26vs. ) Case No. 09-1574

31)

32JEFFREY LUIS CARRASCO, )

36d/b/a JCSI CERTIFIED )

40ROOFING CONTRACTORS, )

43)

44Respondent. )

46)

47RECOMMENDED ORDER

49On July 15, 2009, a duly-noticed hearing was held in

59Bunnell, Florida, before Lisa Shearer Nelson, an Administrative

67Law Judge assigned by the Division of Administrative Hearings.

76APPEARANCES

77For Petitioner: Kyle Christopher, Esquire

82Assistant General Counsel

85Department of Business and

89Professional Regulation

911940 North Monroe Street

95Tallahassee, Florida 32399

98For Respondent: Jeffrey Luis Carrasco, pro se

105JCSI Certified Roofing Contractors

1094600 East Moody Boulevard

113Building 16, Apartment 1

117Bunnell, Florida 32110

120STATEMENT OF THE ISSUES

124The issues to be determined are whether Respondent violated

133the charged provisions of Section 489.129, Florida Statutes

141(2006), and if so, what penalty should be imposed for his

152conduct?

153PRELIMINARY STATEMENT

155On April 25, 2008, the Department of Business and

164Professional Regulation (Department or DBPR) filed a six-count

172Administrative Complaint against Respondent alleging several

178violations of Chapter 489, Florida Statutes, in connection with a

188contract Respondent or his company, JCSI Certified Roofing

196Contractors, undertook to install a roof for John and Christine

206Shields. Specifically, the Administrative Complaint charged

212Respondent with violating Section 489.129(1)(i) by failing to

220include his license or certificate of authority number on the

230contract, in violation of Section 489.119(6)(b), Florida Statutes

238(Count I); violating Section 489.120(1)(i), Florida Statutes, by

246failing to apply for a permit within 30 days of receiving more

258than ten percent of the contract price as an initial payment, in

270violation of Section 489.126(2), Florida Statutes (Count II);

278violating Section 489.129(1)(g)2., Florida Statutes, by

284committing mismanagement or misconduct in the practice of

292contracting that causes financial harm to a customer (Count III);

302violating Section 489.129(1)(j), Florida Statutes, by abandoning

309a construction project (Count IV); violating Section

316489.129(1)(o), Florida Statutes, by proceeding on any job without

325obtaining applicable local building department permits or

332inspections (Count V); and violating Section 489.129(1)(m),

339Florida Statutes, by committing incompetency or mismanagement in

347the practice of contracting (Count VI). Respondent disputed the

356allegations in the Administrative Complaint, and the case was

365referred to the Division of Administrative Hearings on March 26,

3752009, for assignment of an administrative law judge.

383On April 16, 2009, the matter was noticed for hearing to be

395conducted June 12, 2009. At the request of the Department, the

406matter was rescheduled for July 15, 2009, and proceeded as

416scheduled. Petitioner presented the testimony of John Shields

424and Christine Shields, and Petitioner's Exhibits A-E were

432admitted into evidence. Respondent Jeffrey Carrasco testified on

440his own behalf, and Respondent's Exhibits 1-2 were admitted.

449A Transcript of the proceedings was filed with the Division

459on July 29, 2009, and the Department filed its Proposed

469Recommended Order August 10, 2009. On August 18, 2009,

478Respondent filed a document entitled Unilateral Response to

486Initial Order that appears to be a description of the evidence

497submitted at hearing. Both documents have been carefully

505considered in the preparation of this Recommended Order. Unless

514otherwise indicated, all references to Florida Statutes are to

523the codification in effect at the time the events occurred.

533FINDINGS OF FACT

5361. Respondent is and has been, at all times material to the

548allegations in the Administrative Complaint, a certified roofing

556contractor in the State of Florida, having been issued license

566number CCC 132557.

5692. At all times material to the allegations of the

579Administrative Complaint, Respondent was the primary qualifying

586agent for JCSI Certified Roofing Contractors (JCSI), which has

595been issued certificate of authority number QB 47568.

6033. On or about April 7, 2006, Respondent, doing business as

614JCSI, entered into a contract with Mr. and Mrs. John Shields to

626install a stone coated steel shingle roof at 518 Ponte Vedra

637Boulevard, in Ponte Vedra Beach, Florida. The contract amount

646was $50,850.00, and the contract included the following work:

656Scope of Work: Steel roof to be mechanically

664fastened on a single ply system and consist

672[sic] of the following:

6761. Peel & Stick base sheet (same as Ice and

686water Shield), stone coated drip edge.

6922. Mechanically fasten roof panels according

698to wind chart specifications.

7023. Matching stone coated trim.

7074. All flashing to be minimum 26 gauge.

715Vents, valley metals, and flashing as

721required.

7225. Stone coated steel roof, color selection

729by Client.

7316. Steel roof to be installed to

738manufacturers wind chart specifications.

7427. All work to be done in a workmanlike

751manner with complete job cleanup of roofing

758debris placed in on-site container provided

764by Owner/Contractor.

7664. The draw schedule in the contract was listed as follows:

777Deposit $5,000.00 at signing (dry-

783in);$15,000.00 order materials;

788$15,600.00 At beginning of production,

794Balance at completion.

7975. The contract did not contain Respondent's license number

806or the certificate of authority number of JCSI Certified Roofing

816Contractors.

8176. The Shields paid the initial deposit of $5,000.00 upon

828signing the contract. Within a couple of weeks, Respondent

837performed the dry-in for the roof.

8437. On August 17, 2006, the Shields paid an additional

853$15,000.00 with check number 1461, which was deposited into

863JCSI's account August 18, 2006. In total, the Shields paid

873$20,000.00 toward the contract price.

8798. Respondent also installed flashing for the project,

887although the timing of this part of the job is unclear from the

900record. However, from testimony presented, it is found that the

910flashing was installed sometime in August 2006, in the two weeks

921before or after the August 17, 2006 payment. No other work was

933performed on the job by Respondent or JCSI.

9419. Respondent ordered materials for the roof from Gerard

950Roofing in June 2006. However, he did not receive the materials

961from the company because his credit with Gerard was over-

971extended. He claims that he reported this to the Shields and

982suggested that they pay for the materials directly and deduct

992that amount from the contract price, and he would finish the job.

100410. The order form from Gerard Roofing Technologies

1012indicates that the roofing materials ordered in June 2006 totaled

1022$21,570.11. Assuming that the order form represented materials

1031for the Shields job only, had the Shields agreed to Respondent's

1042proposed alteration in the contract, they would have paid

1051$41,570.11 toward the completion of the roof at a time when the

1064only work performed was the initial dry-in and possibly the

1074flashing installation. This would have represented 81.75% of the

1083contract price. As it is, the Shields had paid 39.33% of the

1095contract price already.

109811. The Shields did not agree with Respondent's proposed

1107alteration of the contract. By February 2007, no additional work

1117had been performed on the roof and Respondent did not re-order

1128the roofing materials. At that point, Mr. Shields terminated the

1138contract.

113912. The investigative costs incurred by the Department, not

1148including those associated with an attorney's time, are $288.22.

1157CONCLUSIONS OF LAW

116013. The Division of Administrative Hearings has

1167jurisdiction over the subject matter and the parties to this

1177action in accordance with Sections 120.569 and 120.57(1), Florida

1186Statutes (2009).

118814. This is a disciplinary action by Petitioner in which

1198Petitioner seeks to discipline Respondent's certification as a

1206roofer and his certificate of authority as qualifying agent for

1216his roofing company. Petitioner bears the burden of proof to

1226demonstrate the allegations in the Administrative Complaint by

1234clear and convincing evidence. Department of Banking and Finance

1243v. Osborne Sterne & Co. , 670 So. 2d 932 (Fla. 1996); Ferris v.

1256Turlington , 510 So. 2d 292 (Fla. 1987).

126315. Clear and convincing evidence:

1268[R]equires that the evidence must be found to

1276be credible; the facts to which the witnesses

1284testify must be distinctly remembered; the

1290testimony must be precise and lacking in

1297confusion as to the facts in issue. The

1305evidence must be of such a weight that it

1314produces in the mind of the trier of fact a

1324firm belief or conviction, without hesitancy,

1330as to the truth of the allegations sought to

1339be established.

1341In re Henson , 913 So. 2d 579, 590 (Fla. 2005), quoting Slomowitz

1353v. Walker , 429 So. 797, 800 (Fla. 4th DCA 1983).

136316. The Administrative Complaint charges Respondent with

1370violating several subsections of Section 489.129, Florida

1377Statutes, which states in pertinent part:

1383(1) The board may take any of the following

1392actions against any certificateholder or

1397registrant: place on probation or reprimand

1403the licensee, revoke, suspend, or deny the

1410issuance or renewal of the certificate,

1416registration, or certificate of authority,

1421require financial restitution to a consumer

1427for financial harm directly related to a

1434violation of a provision of this part, impose

1442an administrative fine not to exceed $10,000

1450per violation, require continuing education,

1455or assess costs associated with investigation

1461and prosecution, if the contractor,

1466financially responsible officer, or business

1471organization for which the contractor is a

1478primary qualifying agent, a financially

1483responsible officer, or a secondary

1488qualifying agent responsible under s.

1493489.1195 is found guilty of any of the

1501following acts:

1503* * *

1506(g) Committing mismanagement or misconduct

1511in the practice of contracting that causes

1518financial harm to a customer. Financial

1524mismanagement or misconduct occurs when:

1529* * *

15322. The contractor has abandoned a customer's

1539job and the percentage of completion is less

1547than the percentage of the total contract

1554price paid to the contractor as of the time

1563of abandonment, unless the contractor is

1569entitled to retain such funds under the terms

1577of the contract or refunds the excess funds

1585within 30 days after the date the job is

1594abandoned; . . .

1598* * *

1601(i) Failing in any material respect to

1608comply with the provisions of this part or

1616violating a rule or lawful order of the

1624board.

1625(j) Abandoning a construction project in

1631which the contractor is engaged or under

1638contract as a contractor. A project may be

1646presumed abandoned after 90 days if the

1653contractor terminates the project without

1658just cause or without proper notification to

1665the owner, including the reason for

1671termination, or fails to perform work without

1678just cause for 90 consecutive days.

1684* * *

1687(m) Committing incompetency or misconduct in

1693the practice of contracting.

169717. Respondent is and was the primary qualifying agent for

1707JCSI during all the times material to this proceeding.

1716Subsection 489.1195(1)(a), Florida Statutes, provides:

1721(1) A qualifying agent is a primary

1728qualifying agent unless he or she is the

1736secondary qualifying agent under this

1741section.

1742(a) All primary qualifying agents for a

1749business organization are jointly and equally

1755responsible for supervision of all operations

1761of the business organization; for all field

1768work at all sites; and for financial matters,

1776both for the organization in general and for

1784each specific job.

1787Accordingly, Respondent was responsible for the supervisions of

1795all operations, including financial matters, related to the

1803contract entered with the Shields.

180818. Count I of the Administrative Complaint charges

1816Respondent with violating Section 489.129(1)(j), Florida

1822Statutes, by virtue of violating Section 489.119(6)(b), Florida

1830Statutes, which requires:

1833(b) The registration or certification number

1839of each contractor or certificate of

1845authority number for each business

1850organization shall appear in each offer of

1857services, business proposal, bid, contract,

1862or advertisement, regardless of medium, as

1868defined by board rule, used by that

1875contractor or business organization in the

1881practice of contracting.

188419. The contract signed by both parties does not include

1894either Respondent's roofing contractor's license number or JCSI's

1902certificate of authority number. Respondent has violated Section

1910489.119(6)(b), Florida Statutes, and therefore has violated

1917Section 489.129(1)(i), Florida Statutes. The Department has

1924therefore demonstrated by clear and convincing evidence the

1932charges in Count I of the Administrative Complaint.

194020. The Department announced at hearing that it was not

1950pursuing Count II of the Administrative Complaint. No further

1959discussion of this Count is necessary, and Count II should be

1970dismissed.

197121. Count III of the Administrative Complaint charges

1979Respondent with violating Section 489.129(1)(g)2., Florida

1985Statutes. This charge of financial management turns on whether

1994Respondent abandoned the job for which he contracted, and if he

2005has abandoned the job, whether the percentage of completion is

2015less than the percentage of the total contract price paid to the

2027contractor at the time of the abandonment.

203422. Here, Respondent did not complete any work on the job

2045for a period of over five months. The evidence demonstrates

2055that, at the time John Shields terminated his services,

2064Respondent had received approximately 40 percent of the contract

2073price, and had completed the dry-in and the flashing work. What

2084is not clear, however, is what percentage of the total job the

2096dry-in and flashing work would represent. While it appears that

2106the dry-in and flashing work would represent less than 40 percent

2117of the total job, no evidence was presented to support this

2128supposition. Without that evidence, it cannot be determined that

2137Respondent had received more funds than represented by the work

2147accomplished. Compare Department of Business and Professional

2154Regulation v. Raymond Spencer , No. 08-226 (DOAH Apr. 18, 2008).

2164Under these circumstances, the Department has not proven a

2173violation of Section 489.129(1)(g)2., Florida Statutes, by clear

2181and convincing evidence. Accordingly, Count III should be

2189dismissed.

219023. Count IV alleges that Respondent abandoned the

2198construction project in violation of Section 489.129(1)(j),

2205Florida Statutes. This subjection provides that "a project may

2214be presumed to be abandoned after 90 days if the contractor . . .

2228fails to perform work without just cause for 90 days."

2238Respondent denied that he abandoned the job, and tried to lay the

2250delays in construction at the feet of Mrs. Shields. He also

2261points to his ultimate termination as the basis for stopping work

2272on the project.

227524. Respondent's testimony is simply not credible. First,

2283while he submitted documentation from McElroy Metal, Inc.

2291(Respondent's Exhibit 1), his assertions both at hearing and in

2301his post-hearing submittal regarding McElroy Metal are

2308contradicted by the documentation itself. Respondent stated that

2316the McElroy Metal documents represented the flashings that he

2325ordered prior to receiving the check when the Shields were ready

2336for their flashings. Respondent insisted at hearing and in his

2346post-hearing submittal that these documents represented flashing

2353materials ordered and paid for before he received the August

2363payment for $15,000. The documents, which do not reference the

2374Shields, indicate that they related to an order placed

2383October 12, 2006, well after the August 17, 2006 payment, for

2394high-side tie-in trim. Further, while Respondent insisted that

2402payments made were not necessarily meant for ordering materials

2411and that the payment schedule was meant to be more fluid, his

2423assertions are inconsistent with the language of the contract

2432itself.

243325. Similarly, the order form for Gerard Roofing

2441Technologies indicates only that he ordered materials for the

2450Shields' roof in June. While he testified that he had a cash

2462flow problem and could not obtain the materials when ordered, he

2473did not explain why he could not order them when paid an

2485additional $15,000 in August. Nor did he give any explanation

2496why he could not pay for the materials at some time later, before

2509Mr. Shields terminated his contract. The evidence is clear and

2519convincing that Respondent did not work on the project after

2529August 2006, for a period exceeding 90 days, and that

2539Respondent's credit problems do not constitute just cause for the

2549delay. The Department has demonstrated a violation of Section

2558489.129(1)(j), Florida Statutes, as alleged in Count IV of the

2568Administrative Complaint.

257026. The Department announced at hearing that it was not

2580pursuing the charge in Count V, and no evidence was submitted in

2592relation to the charge. Therefore, no further discussion of

2601Count V is necessary and it should be dismissed.

261027. Count VI charges a violation of Section 489.129(1)(m),

2619Florida Statutes, alleging that Respondent committed incompetency

2626or misconduct in the practice of contracting. The evidence is

2636clear and convincing that Respondent received payment of $15,000

2646specifically identified for ordering materials and did not order

2655materials with these funds, and that he did not complete the job

2667he contracted to complete. Clear and convincing evidence has

2676been presented to prove a violation of Count VI.

268528. In summary, the Department has proven by clear and

2695convincing evidence the violations charged in Counts I, IV and VI

2706of the Administrative Complaint. It chose not to pursue Counts

2716II and V, and Count III was not demonstrated by clear and

2728convincing evidence.

273029. Section 455.2273(2), Florida Statutes, requires

2736professional licensing boards within the Department to create

2744disciplinary guidelines that "specify a meaningful range of

2752designated penalties based upon the severity and repetition of

2761specific offenses." Administrative law judges are required to

2769recommend penalties consistent with the guidelines, and explain

2777in writing any aggravating or mitigating circumstances upon which

2786a penalty recommendation is based. § 455.2273(5), Fla. Stat.

279530. Florida Administrative Code Rule 61G4-17.001 provides

2802the range of penalties for the violations of Chapter 489, Florida

2813Statutes. For a first violation of Section 489.129(1)(i),

2821Florida Statutes, by virtue of violating Section 489.119(6)(b)

2829(Count I), Florida Statutes, the recommended penalty is a $250

2839fine. For a first violation of Section 489.129(1)(j), Florida

2848Statutes, (Count IV), the recommended penalty range is a $2,500

2859fine and/or probation or suspension of the license. 1/ For a

2870first violation of Section 489.129(1)(m)(Count VI), the

2877recommended penalty range is a $1,000 fine and/or probation or

2888suspension. The Disciplinary Guidelines also require that "the

2896board shall order the contractor to make restitution in the

2906amount of financial loss suffered by the consumer to the extent

2917that such order does not contravene federal bankruptcy law."

2926Fla. Admin. Code R. 61G4-17.001(5). While the Department refers

2935to repeat violations, there was no evidence presented of prior

2945disciplinary action against Respondent.

2949RECOMMENDATION

2950Upon consideration of the facts found and conclusions of law

2960reached, it is

2963RECOMMENDED that the Construction Industry Licensing Board

2970enter a Final Order finding Respondent guilty of violating

2979Subsections 489.129(1)(i), (j) and (m), Florida Statutes, as

2987charged in Counts I, IV and VI of the Administrative Complaint;

2998finding that Respondent did not violate Subsections

3005489.129(1)(g)2., (i) and (o), Florida Statutes, as charged in

3014Counts II, III and V of the Administrative Complaint and

3024dismissing those counts; imposing an administrative fine of $250

3033for Count I; imposing an administrative fine of $2,500 and

3044placing Respondent's license on probation for a period of four

3054years for Count IV; imposing an administrative fine of $2,500 for

3066Count VI; requiring restitution in the amount of $15,000.00 to

3077John and Christine Shields 2/ in accordance with Florida

3086Administrative Code Rule 61G4-17.001(5); and imposing costs in

3094the amount of $288.22.

3098DONE AND ENTERED this 28th day of August, 2009, in

3108Tallahassee, Leon County, Florida.

3112S

3113LISA SHEARER NELSON

3116Administrative Law Judge

3119Division of Administrative Hearings

3123The DeSoto Building

31261230 Apalachee Parkway

3129Tallahassee, Florida 32399-3060

3132(850) 488-9675

3134Fax Filing (850) 921-6847

3138www.doah.state.fl.us

3139Filed with the Clerk of the

3145Division of Administrative Hearings

3149this 28th day of August, 2009.

3155ENDNOTES

31561/ Petitioner indicates in its Proposed Recommended Order that

3165the penalty for a first-time violation of Section 489.129(1)(j),

3174Florida Statutes, is a $5,000 fine and/or probation or revocation.

3185However, the copy of Rule 61G4-17.001 available on the Florida

3195Administrative Code website indicates that the fine for a first

3205time offense is $2,500.

32102/ Petitioner suggested restitution in the amount of $14,268.81

3220to John and Christine Shields, giving Respondent credit for the

3230cost of the flashing material purportedly paid to McElroy Metal.

3240However, as noted above, Respondent's Exhibit 1 reflects an order

3250date well after all testimony indicated all work on the Shields

3261home had stopped. Further, the exhibit does not reference the

3271Shields job. The Shields had given an initial $5,000 to

3282Respondent at the commencement of the job. The undersigned

3291declines to recommend giving credit for materials ordered after

3300all work on the job had stopped.

3307COPIES FURNISHED:

3309Kyle Christopher, Esquire

3312Department of Business and

3316Professional Regulation

33181940 North Monroe Street, Suite 42

3324Tallahassee, Florida 32399-2202

3327Jeffrey Luis Carrasco

3330JCSI Certified Roofing Contractors

33344600 East Moody Boulevard

3338Building 16, Apartment 1

3342Bunnell, Florida 32110

3345G. W. Harrell, Executive Director

3350Construction Industry Licensing Board

3354Department of Business and

3358Professional Regulation

33601940 North Monroe Street

3364Tallahassee, Florida 32399-2202

3367Ned Luczynski, General Counsel

3371Department of Business and

3375Professional Regulation

33771940 North Monroe Street

3381Tallahassee, Florida 32399-2202

3384NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

3390All parties have the right to submit written exceptions within

340015 days from the date of this recommended order. Any exceptions to

3412this recommended order should be filed with the agency that will

3423issue the final order in this case.

Select the PDF icon to view the document.
PDF
Date
Proceedings
PDF:
Date: 08/28/2009
Proceedings: Recommended Order
PDF:
Date: 08/28/2009
Proceedings: Recommended Order (hearing held July 15, 2009). CASE CLOSED.
PDF:
Date: 08/28/2009
Proceedings: Recommended Order cover letter identifying the hearing record referred to the Agency.
PDF:
Date: 08/18/2009
Proceedings: Unilateral Response to Initial Order filed.
PDF:
Date: 08/10/2009
Proceedings: Petitioner's Proposed Recommended Order filed.
Date: 07/29/2009
Proceedings: Transcript filed.
Date: 07/15/2009
Proceedings: CASE STATUS: Hearing Held.
PDF:
Date: 07/14/2009
Proceedings: Order (Vacating Order Canceling Hearing, Bifurcating Proceedings and Providing Deadline for Proposed Orders; Case shall proceed to hearing on July 15, 2009).
PDF:
Date: 07/13/2009
Proceedings: Order Canceling Hearing, Bifurcating Proceedings and Providing Deadline for Proposed Orders (parties to advise status by August 3, 2009).
PDF:
Date: 07/02/2009
Proceedings: Petitioner's List of Exhibits filed.
PDF:
Date: 06/05/2009
Proceedings: Order Granting Continuance and Re-scheduling Hearing (hearing set for July 15, 2009; 11:00 a.m.; Bunnell, FL).
PDF:
Date: 05/21/2009
Proceedings: Petitioner's Motion to Continue Hearing filed.
PDF:
Date: 04/16/2009
Proceedings: Order of Pre-hearing Instructions.
PDF:
Date: 04/16/2009
Proceedings: Notice of Hearing (hearing set for June 12, 2009; 11:00 a.m.; Bunnell, FL).
PDF:
Date: 04/02/2009
Proceedings: Unilateral Response to Initial Order filed.
PDF:
Date: 03/26/2009
Proceedings: Election of Rights filed.
PDF:
Date: 03/26/2009
Proceedings: Administrative Complaint filed.
PDF:
Date: 03/26/2009
Proceedings: Agency referral
PDF:
Date: 03/26/2009
Proceedings: Initial Order.

Case Information

Judge:
LISA SHEARER NELSON
Date Filed:
03/26/2009
Date Assignment:
03/26/2009
Last Docket Entry:
08/28/2009
Location:
Bunnell, Florida
District:
Northern
Agency:
Department of Business and Professional Regulation
 

Counsels

Related DOAH Cases(s) (1):

Related Florida Statute(s) (8):

Related Florida Rule(s) (1):