09-005212
Department Of Business And Professional Regulation, Construction Industry Licensing Board vs.
Victor Harris, D/B/A Victor's Roofing Co., Inc., Of The Fla Keys
Status: Closed
Recommended Order on Wednesday, January 6, 2010.
Recommended Order on Wednesday, January 6, 2010.
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
137Respondents 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 attorneys 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.
- Date
- Proceedings
- PDF:
- Date: 01/06/2010
- Proceedings: Recommended Order cover letter identifying the hearing record referred to the Agency.
- 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: Notice of Service of Petitioner's Exhibits and Witnesses List filed.
Case Information
- Judge:
- R. BRUCE MCKIBBEN
- Date Filed:
- 09/22/2009
- Date Assignment:
- 10/13/2009
- Last Docket Entry:
- 11/12/2019
- Location:
- Punta Gorda, Florida
- District:
- Middle
- Agency:
- Other
Counsels
-
Sorin Ardelean, Esquire
Address of Record -
Victor Harris
Address of Record