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.
Recommended Order on Friday, August 28, 2009.
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.
- Date
- Proceedings
- PDF:
- Date: 08/28/2009
- Proceedings: Recommended Order cover letter identifying the hearing record referred to the Agency.
- 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: 06/05/2009
- Proceedings: Order Granting Continuance and Re-scheduling Hearing (hearing set for July 15, 2009; 11:00 a.m.; Bunnell, FL).
Case Information
- Judge:
- LISA SHEARER NELSON
- Date Filed:
- 03/26/2009
- Date Assignment:
- 03/26/2009
- Last Docket Entry:
- 11/12/2019
- Location:
- Bunnell, Florida
- District:
- Northern
- Agency:
- Other
Counsels
-
Jeffrey Luis Carrasco
Address of Record -
Kyle Christopher, Esquire
Address of Record