09-005212 Department Of Business And Professional Regulation, Construction Industry Licensing Board vs. Victor Harris, D/B/A Victor&Apos;S Roofing Co., Inc., Of The Fla Keys
 Status: Closed
Recommended Order on Wednesday, January 6, 2010.


View Dockets  
Summary: Petitioner proved by clear and convincing evidence that sanctions are warranted against Respondent for one of two complaints.

1STATE OF FLORIDA

4DIVISION OF ADMINISTRATIVE HEARINGS

8DEPARTMENT OF BUSINESS AND )

13PROFESSIONAL REGULATION, )

16CONSTRUCTION INDUSTRY LICENSING )

20BOARD, )

22)

23Petitioner, )

25)

26vs. ) Case No. 09-5212

31)

32VICTOR HARRIS, d/b/a VICTOR'S ROOFING CO., INC., OF THE FLA )

43KEYS, )

45)

46)

47Respondent. )

49)

50RECOMMENDED ORDER

52Pursuant to notice, the Division of Administrative

59Hearings, by its duly-designated Administrative Law Judge

66R. Bruce McKibben, held a formal hearing in the above-styled

76case on October 28, 2009, in Punta Gorda, Florida.

85APPEARANCES

86For Petitioner: Sorin Ardelean, Esquire

91Department of Business and

95Professional Regulation

971940 North Monroe Street

101Tallahassee, Florida 32399

104For Respondent: Victor Harris, pro se

110Victor's Roofing Company, Inc.,

114of the Florida Keys

1185409 Overseas Highway, Suite 254

123Marathon, Florida 33050-2710

126STATEMENT OF THE ISSUE

130Whether disciplinary action should be taken against

137Respondent’s license to practice contracting under License

144No. CCC 057995, based on the violations of Subsection

153489.129(1), Florida Statutes (2005).

157PRELIMINARY STATEMENT

159On February 9, 2007, Petitioner, Department of Business and

168Professional Regulation, Construction Industry Licensing Board

174("Department"), filed an Administrative Complaint on DBPR Case

184Nos. 2006-003419 and 2006-006820, alleging Respondent, Victor

191Harris, d/b/a Victor's Roofing Company, Inc., of the Florida

200Keys, violated the laws regulating his professional activities

208as a certified contractor in the State of Florida. The

218Administrative Complaint charged Respondent with violations of

225Subsection 489.129(1)(j), Florida Statutes (2005), by abandoning

232a construction project in which the contractor is engaged or

242under contract; and Subsection 489.129(1)(m), Florida Statutes

249(2005), by committing incompetency or misconduct in the practice

258of contracting.

260Respondent disputed the allegations contained in the

267Administrative Complaint and elected to have a formal

275administrative hearing. Consequently, the case was transferred

282to the Division of Administrative Hearings ("DOAH") to conduct a

294final hearing pursuant to Section 120.57, Florida Statutes

302(2009).

303During the hearing, Petitioner offered the testimony of two

312witnesses: Bobby McElroy and Larry Mesler. Petitioner

319introduced 12 exhibits numbered 1 through 12, all of which were

330entered into evidence. Respondent testified on his own behalf

339and introduced one exhibit that was entered into evidence.

348The parties indicated that a transcript of the final

357hearing would be ordered. The parties were to submit proposed

367recommended orders within ten days of the transcript being filed

377at DOAH. The Transcript was filed on November 18, 2009.

387Petitioner filed its Proposed Recommended Order on November 25,

3962009, and it was duly considered in the preparation of this

407Recommended Order. No proposed recommended order was submitted

415by Respondent.

417FINDINGS OF FACT

420Based on the evidence and testimony of the witnesses

429presented and the entire record in this proceeding, the

438following facts are found:

4421. At all times material hereto, Respondent was a

451certified general contractor, having been issued License

458No. CCC 057995 by the Department.

4642. At all times material hereto, Respondent was the

473qualifier of Victor's Roofing Co., Inc., of the Florida Keys.

4833. On January 14, 2005, Respondent entered into a contract

493with Bobby McElroy to re-roof McElroy's residence located in

502Punta Gorda, Florida. The roof had been damaged during

511Hurricane Charley the previous year. The contract price was

520$23,750, of which McElroy paid $15,800 in advance. Of the

532advance funds, $7,850 was designated as payment to take off the

544old roof and install felt and metal flashing, and $7,950 was

556designated for installing tiles on the roof. The balance

565($7,950) was designated for the remainder of the work, i.e.,

576replacing water damage, installing 90-pound roll-roofing slate

583over the felt, obtaining permits, and payment of dump fees.

5934. Respondent commenced work on the McElroy residence on

602March 8, 2005, by removing and disposing of the existing roof

613tiles, doing repair work, installing 30-pound felt paper, and

"622hot mopping" the roof. The purpose of the "hot mopping" was to

634protect the roof pending installation of the new roof tiles.

644Respondent opined at final hearing that the completion of "hot

654mopping" constituted a new roof. The new roof tiles were, in

665his opinion, only for aesthetics. McElroy was advised that it

675would take six weeks or so, and possibly even up to 18 weeks,

688for the new tiles to arrive.

6945. Respondent came to McElroy's house on June 27, 2005,

704some 12 weeks after Respondent had commenced work on the roof,

715with a tile order form. The tiles listed on that form, however,

727were Capri Pinto Blend tiles, not the Capri Hope tiles that

738McElroy had decided upon. The tile order form was dated

748January 20, 2005, but McElroy said he had not even made up his

761mind about which tiles to order until February 16, 2005.

771McElroy believes the date on the order form was wrong or had

783been changed by someone. The date at the top of the tile order

796form was January 20, 2005. However, the form listed June 27,

8072005, as the order date and also as the ship date. The form

820indicated a check was received from "Victor's Roofing" on

829June 27, 2005. None of the testimony at final hearing cleared

840up this discrepancy.

8436. Respondent advised McElroy on June 27, 2005, that Capri

853Hope tiles were no longer being manufactured, but McElroy had

863reason to believe that representation was in error. The

872evidence on this point was uncorroborated hearsay from McElroy,

881who said he was told by the manufacturer that the Capri Hope

893tiles were still being made. Respondent presented

900uncorroborated hearsay testimony that a representative from the

908company told him the tiles had been discontinued. There was no

919competent and substantial evidence presented as to whether the

928tiles had been discontinued or were still available.

9367. McElroy apparently and reluctantly acquiesced to the

944Capri Pinto Blend tiles, and the tiles valued at $4,837.20 were

956delivered to McElroy's residence on or about June 30, 2005.

966However, Respondent did not return to install the tiles and has

977done no work on McElroy's house since May 26, 2005, i.e., prior

989to the new tiles being ordered.

9958. In October 2005, Respondent apparently picked up the

1004Capri Pinto Blend tiles from McElroy's home pursuant to

1013instructions from McElroy. Another hurricane was approaching,

1020and McElroy was worried that the tiles may blow off the roof

1032where they were stacked. At final hearing McElroy testified

1041that the last time he saw Respondent was when the Capri Pinto

1053Blend tiles were removed from his property. However, in the

1063chronology of events in McElroy's complaint to Petitioner, which

1072McElroy testified was true and accurate, there is no mention of

1083the tiles being removed. This inconsistency was not cleared up

1093at final hearing.

10969. In February 2006, McElroy hired a second contractor to

"1106finish" his roof. However, at that time, McElroy decided to

1116upgrade to a metal roof. The cost of the upgraded roof was

1128$25,200, which included some roof preparation in addition to

1138what Respondent had previously done and the cost of the new

1149metal roof.

115110. There was no testimony as to the value of the services

1163that Respondent provided to McElroy before Respondent ceased

1171working at the McElroy's residence, but it is clear that

1181extensive work was done. It is also clear that Respondent did

1192not complete the job by installing the Capri Pinto Blend tiles

1203and did no work on the job since May 2005 (except for picking up

1217the tiles in October 2005).

122211. Petitioner submitted an affidavit indicating that the

1230total investigative cost of this case to Petitioner, excluding

1239costs associated with any attorney's time for DBPR Case

1248No. 2006-003419, was $297.83. The hearsay affidavit was not

1257corroborated by other competent evidence.

126212. On November 8, 2004, Respondent entered into a

1271contract with Larry Mesler to re-roof Mesler's residence located

1280in Punta Gorda, Florida. The roof had been damaged by a

1291hurricane during the previous year. The copy of the contract

1301entered into evidence is essentially unreadable, but the parties

1310stipulated that a contract existed between them. The contract

1319price was $30,000, of which amount Mesler paid $20,000 (a

1331$10,000 down payment and $10,000 more when the roof tiles were

1344ordered). The down payment covered the removal and disposal of

1354the old tiles, as well as the "hot mopping" process. The second

1366payment covered the purchase and delivery of the tiles for

1376Mesler's roof. The final $10,000 was apparently to cover the

1387cost of installing the new tiles, but there was no clear

1398evidence presented at final hearing as to that fact.

140713. In April 2005, roof tiles for the project were

1417delivered to Mesler's residence. Mesler was concerned about the

1426number of broken tiles, but no evidence was presented to

1436indicate there were insufficient tiles to complete the job.

144514. It took until July 7, 2005, for a building permit to

1457be obtained for commencement of the roofing work. This was

1467during a period of time that numerous roof repair jobs were

1478going on following Hurricane Charley, which had hit the area in

14892004.

149015. The roof tiles were installed by Respondent, but it is

1501unclear from the evidence as to how much of the job was

1513completed. The testimony at final hearing was extremely sketchy

1522as to whether Respondent installed some or none of the tiles.

1533It is clear, however, that the job was not completed to Mesler's

1545satisfaction. Mesler was unsuccessful in his attempts to

1553contact Respondent to finish the job.

155916. At some point Mesler hired another contractor and paid

1569him $16,550 to complete the roofing job. That amount included

1580purchase of additional tiles, but the contract, as well as

1590Mesler's testimony, is unclear as to how much tile was ordered

1601or the extent of the additional work. Nor is the testimony

1612clear as to when Respondent last performed work on Mesler's

1622home.

162317. Petitioner submitted an affidavit indicating that the

1631total investigative cost of DBPR Case No. 2006-006820 to

1640Petitioner, excluding costs associated with any attorney’s time,

1648was $351.07. The hearsay affidavit was not corroborated by

1657other competent evidence.

1660CONCLUSIONS OF LAW

166318. The Division of Administrative Hearings has

1670jurisdiction over the parties and subject matter of this

1679proceeding pursuant to Section 120.57, Florida Statutes (2009).

168719. Petitioner is the state agency charged with regulating

1696the practice of contracting pursuant to Section 20.165 and

1705Chapters 455 and 489, Florida Statutes (2009).

171220. Pursuant to Section 489.129, Florida Statutes (2005),

1720the Board is empowered to revoke, suspend, or otherwise

1729discipline the license of a contractor who is found guilty of

1740any of the grounds enumerated in Subsection 489.129(1), Florida

1749Statutes (2005).

175121. Petitioner has the burden of proving by clear and

1761convincing evidence the allegations against Respondent.

1767§ 120.57(1)(j), Fla. Stat. (2009); Department of Banking and

1776Finance v. Osborne Stern and Co. , 670 So. 2d 932 (Fla. 1996);

1788and Ferris v. Turlington , 510 So. 2d. 292 (Fla. 1987).

179822. Evans Packing Co. v. Department of Agriculture and

1807Consumer Services , 550 So. 2d 112, 116, fn. 5 (Fla. 1st DCA

18191989), provides the following guidance regarding the clear and

1828convincing evidence standard:

1831That standard has been described as

1837follows: [C]lear and convincing evidence

1842requires that the evidence must be found to

1850be credible; the facts to which the

1857witnesses testify must be distinctly

1862remembered; the evidence must be precise and

1869explicit and the witnesses must be lacking

1876in confusion as to the facts in issue. The

1885evidence must be of such weight that it

1893produces in the mind of the trier of fact

1902the firm belief of conviction, without

1908hesitancy, as to the truth of the

1915allegations sought to be established.

1920Slomowitz v. Walker , 429 So. 2d 797, 800 (Fla. 4th DCA 1983).

193223. The Administrative Complaint alleges that Respondent

1939is guilty of violating Subsections 489.129(1)(j) and (m),

1947Florida Statutes (2005), which provide, in pertinent part, as

1956follows:

1957(1) The Board may take any of the

1965following actions against any

1969certificateholder or registrant: place on

1974probation or reprimand the licensee, revoke,

1980suspend, or deny the issuance or renewal of

1988the certificate or registration, require

1993financial restitution to a consumer for

1999financial harm directly related to a

2005violation of a provision of this part,

2012impose an administrative fine not to exceed

2019$10,000 per violation, require continuing

2025education, or assess costs associated with

2031investigation and prosecution, if the

2036contractor . . . or business organization

2043for which the contractor is a primary

2050qualifying agent . . . is found guilty of

2059any of the following acts:

2064* * *

2067(j) Abandoning a construction project in

2073which the contractor is engaged or under

2080contract as a contractor. A project may be

2088presumed abandoned after 90 days if the

2095contractor terminates the project without

2100just cause or without proper notification to

2107the owner, including reason for termination,

2113or fails to perform work without just cause

2121for 90 consecutive days.

2125* * *

2128(m) Committing incompetency or misconduct

2133in the practice of contracting.

213824. Petitioner has proven by clear and convincing evidence

2147that Respondent violated Subsections 489.129(1)(j) and (m),

2154Florida Statutes (2005), i.e., that Respondent abandoned the

2162McElroy contract and/or committed incompetency or misconduct in

2170the practice of contracting. The testimony concerning this

2178matter was incomplete, disjointed, and confusing. It is not

2187precise and explicit, nor is it distinctly remembered. It is

2197clear, however, that Respondent did not fully complete the roof

2207project for some reason. It is further clear that McElroy paid

2218for tiles that were not used on his roof, and those tiles were

2231removed from his property. Further, it is clear Respondent did

2241no work on the project from May 2005 until October 2005, a

2253period of well over 90 days.

225925. Petitioner has not proven by clear and convincing

2268evidence that Respondent violated Subsections 489.129(1)(j)

2274and (m), Florida Statutes (2005), by abandoning the Mesler

2283project or by committing incompetency or misconduct in the

2292practice of contracting. The evidence is clear that Respondent

2301performed work pursuant to the contract between the parties. It

2311is also clear Mesler was not happy with the work and that Mesler

2324hired another contractor to work on his roof after giving up on

2336Respondent. However, the evidence is neither clear nor

2344convincing as to whether Respondent abandoned the project or did

2354substandard work.

235626. While an action might be warranted concerning

2364repayment by Respondent for a portion of the funds paid by

2375McElroy and/or Mesler, there is insufficient evidence to warrant

2384sanctions against Respondent as set forth in the Administrative

2393Complaint.

239427. Florida Administrative Code Rule 61G4-17.001, sets

2401forth guidelines for establishment of monetary fines and

2409penalties for disciplinary cases. It states in pertinent part:

2418(1) The following guidelines shall be used

2425in disciplinary cases, absent aggravating or

2431mitigating circumstances and subject to the

2437other provisions of this Chapter.

2442* * *

2445(j) Section 489.129(1)(j), F.S.

2449Abandonment. First violation, $500.00 to

2454$2,000.00 fine.

245728. There is no evidence that Respondent had any other

2467violations in his past concerning the abandonment of a project.

2477There were no aggravating factors, but the existence of

2486hurricanes causing extensive work for Respondent and like-

2494situated individuals are a mitigating factor.

2500RECOMMENDATION

2501Based on the foregoing Findings of Fact and Conclusions of

2511Law, it is:

2514RECOMMENDED that a final order be entered by Petitioner,

2523Department of Business and Professional Regulation, Construction

2530Industry Licensing Board:

25331. Finding that Respondent, Victor Harris, d/b/a Victor's

2541Roofing Company, Inc., of the Florida Keys, abandoned the

2550McElroy project and imposing an administrative fine in the

2559amount of $1,000; and

25642. Dismissing the Administrative Complaint against

2570Respondent as to the Mesler project.

2576DONE AND ENTERED this 6th day of January, 2010, in

2586Tallahassee, Leon County, Florida.

2590R. BRUCE MCKIBBEN

2593Administrative Law Judge

2596Division of Administrative Hearings

2600The DeSoto Building

26031230 Apalachee Parkway

2606Tallahassee, Florida 32399-3060

2609(850) 488-9675

2611Fax Filing (850) 921-6847

2615www.doah.state.fl.us

2616Filed with the Clerk of the

2622Division of Administrative Hearings

2626this 6th day of January, 2010.

2632COPIES FURNISHED :

2635G. W. Harrell, Executive Director

2640Construction Industry Licensing Board

2644Department of Business and

2648Professional Regulation

2650Northwood Centre

26521940 North Monroe Street

2656Tallahassee, Florida 32399-0792

2659Reginald Dixon, General Counsel

2663Department of Business and

2667Professional Regulation

2669Northwood Centre

26711940 North Monroe Street

2675Tallahassee, Florida 32399-0792

2678Sorin Ardelean, Esquire

2681Department of Business and

2685Professional Regulation

26871940 North Monroe Street

2691Tallahassee, Florida 32399

2694Victor Harris

2696Victor's Roofing Co., Inc.

2700of the Florida Keys

27045409 Overseas Highway, Suite 254

2709Marathon, Florida 33050-2710

2712NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

2718All parties have the right to submit written exceptions within

272815 days from the date of this Recommended Order. Any exceptions

2739to this Recommended Order should be filed with the agency that

2750will issue the Final Order in this case.

Select the PDF icon to view the document.
PDF
Date
Proceedings
PDF:
Date: 01/06/2010
Proceedings: Recommended Order
PDF:
Date: 01/06/2010
Proceedings: Recommended Order (hearing held October 28, 2009). CASE CLOSED.
PDF:
Date: 01/06/2010
Proceedings: Recommended Order cover letter identifying the hearing record referred to the Agency.
PDF:
Date: 11/25/2009
Proceedings: Petitioner's Proposed Recommended Order filed.
Date: 11/18/2009
Proceedings: Transcript of Proceedings filed.
Date: 10/28/2009
Proceedings: CASE STATUS: Hearing Held.
PDF:
Date: 10/21/2009
Proceedings: Amended Notice of Hearing (hearing set for October 28, 2009; 1:00 p.m.; Punta Gorda, FL; amended as to time of hearing).
PDF:
Date: 10/20/2009
Proceedings: Petitioner's Motion to Re-schedule filed.
PDF:
Date: 10/20/2009
Proceedings: Notice of Service of Petitioner's Exhibits and Witnesses List filed.
PDF:
Date: 10/15/2009
Proceedings: Order Allowing Withdrawal of Counsel.
PDF:
Date: 10/15/2009
Proceedings: Notice of Transfer.
PDF:
Date: 10/09/2009
Proceedings: Order of Pre-hearing Instructions.
PDF:
Date: 10/09/2009
Proceedings: Notice of Hearing (hearing set for October 28, 2009; 9:00 a.m.; Punta Gorda, FL).
PDF:
Date: 10/09/2009
Proceedings: Notice of Transfer.
PDF:
Date: 10/05/2009
Proceedings: Petitioner's Response to Initial Order filed.
PDF:
Date: 09/29/2009
Proceedings: Order Concerning Withdrawal of Counsel for Respondent.
PDF:
Date: 09/28/2009
Proceedings: Notice of Filing Certification filed.
PDF:
Date: 09/24/2009
Proceedings: Notice of Non-Representation filed.
PDF:
Date: 09/22/2009
Proceedings: Initial Order.
PDF:
Date: 09/22/2009
Proceedings: Administrative Complaint filed.
PDF:
Date: 09/22/2009
Proceedings: Motion to Quash Service of Process filed.
PDF:
Date: 09/22/2009
Proceedings: Agency referral filed.

Case Information

Judge:
R. BRUCE MCKIBBEN
Date Filed:
09/22/2009
Date Assignment:
10/13/2009
Last Docket Entry:
01/06/2010
Location:
Punta Gorda, Florida
District:
Middle
Agency:
Department of Business and Professional Regulation
 

Counsels

Related DOAH Cases(s) (3):

Related Florida Statute(s) (3):

Related Florida Rule(s) (1):