10-001244 Department Of Business And Professional Regulation, Construction Industry Licensing Board vs. Tracy M. Thomas, D/B/A Partnership Remodeling And Roofing Services, Inc. Status: Closed Recommended Order on Monday, July 19, 2010.

Summary: Respondent took deposit from owner to re-roof owner's house. Respondent failed to perform without a valid reason. Recommend suspension and fine.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF BUSINESS AND )

PROFESSIONAL REGULATION, )

CONSTRUCTION INDUSTRY LICENSING )

BOARD, )

)

Petitioner, )

)

vs. ) Case No. 10-1244

)

TRACY M. THOMAS, d/b/a PARTNERSHIP REMODELING AND )

ROOFING SERVICES, INC., )

)

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was held before

Daniel M. Kilbride, a duly-designated Administrative Law Judge

of the Division of Administrative Hearings, on May 28, 2010, by

video teleconference between sites in Fort Myers, Florida, and

Tallahassee, Florida.

APPEARANCES

For Petitioner: Sorin Ardelean, Esquire

Department of Business and

Professional Regulation

1940 North Monroe Street

Tallahassee, Florida 32399

For Respondent: Tracy Thomas, pro se

Tracy M. Thomas d/b/a Partnership

Remodeling and Roofing Services, Inc.

1810 Frontier Circle

La Belle, Florida 33935

STATEMENT OF THE ISSUES

Whether disciplinary action should be taken against

Respondent's license to practice contracting, as charged in the

three-count Administrative Complaint filed against Respondent in

this proceeding, which alleged that Respondent violated

Subsection 489.129(1)(g)2., Florida Statutes (2009), 1 by

committing mismanagement or misconduct in the practice of

contracting that causes financial harm to a customer; Subsection

489.129(1)(j), Florida Statutes, by abandoning a construction

project in which the contractor is engaged or under contract as

a contractor; and Subsection 489.129(1)(m), Florida Statutes, by

committing incompetency or misconduct in the practice of

contracting; and, if so, what penalty should be assessed.

PRELIMINARY STATEMENT

On December 18, 2009, the Department of Business and

Professional Regulation ("Petitioner"), filed a three-count

Administrative Complaint alleging Tracy M. Thompson

("Respondent") violated the laws regulating his professional

activities as a certified roofing contractor in the State of

Florida. Respondent disputed the allegations contained in the

Administrative Complaint and elected to have a formal

administrative hearing. As a result, the case was transferred

to the Division of Administrative Hearings to conduct a hearing

pursuant to Subsection 120.57(1), Florida Statutes.

At the hearing, Petitioner offered the testimony of two

witnesses: Angela Desmond and William Heston; and introduced

five exhibits, each of which was entered into evidence.

Respondent testified in his own behalf and introduced no other

witnesses or exhibits into evidence.

A Transcript of the hearing was prepared and filed on

June 16, 2010. Petitioner filed its Proposed Recommended Order

on June 25, 2010. Respondent, although advised that he may do

so, has not filed his proposals as of the date of this

Recommended Order.

FINDINGS OF FACT

1. Petitioner is the state agency charged with regulating

the practice of contracting, including roofing contractors, in

the State of Florida.

2. At all times material, Respondent was a certified

roofing contractor, having been issued License No. CCC 1328032

by the Florida Construction Industry Licensing Board ("CILB").

Respondent was the qualifier of Partnership Remodeling and

Roofing Services, Inc.

3. On February 10, 2009, Respondent entered into a

contract with William Heston to re-roof Heston's home located at

6002 Cocos Drive, Fort Myers, Florida 33908. The agreed price

of the contract was $13,970.00.

4. On or about February 10, 2009, Heston gave Respondent a

check in the amount of $7,000.00 as a deposit, payable to

Partnership Roofing Services.

5. After being paid the deposit, Respondent did obtain a

permit and filed a Notice of Commencement, but Respondent failed

to commence work according to the contract.

6. Heston attempted to contact Respondent numerous times

to prompt him to start performing the work, to no avail.

7. On March 6, 2009, Heston sent a letter to Respondent

asking for the return of his deposit.

8. Although Respondent claims that he had other financial

obligations which prevented him from making restitution to the

homeowner, Respondent verbally agreed numerous times to return

the deposit to Heston, but he failed to do so.

9. The percentage of contracted work completed was zero,

while the percentage of the contract price paid to Respondent

was 50 percent.

10. The total investigative costs of this case to

Petitioner, excluding costs associated with any attorney's time,

was $427.00.

11. Respondent has not had a prior disciplinary action

filed against his license.

CONCLUSIONS OF LAW

12. The Division of Administrative Hearings has

jurisdiction over the parties and subject matter of this

proceeding pursuant to Section 120.569 and Subsection 120.57(1),

Florida Statutes.

13. Petitioner is the state agency charged with regulating

the practice of contracting pursuant to Section 20.165 and

Chapters 455 and 489, Florida Statutes.

14. Pursuant to Section 489.129, Florida Statutes, the

CILB is empowered to revoke, suspend, or otherwise discipline

the license of a contractor who is found guilty of any of the

grounds enumerated in Subsection 489.129(1), Florida Statutes.

15. Petitioner has the burden of providing by clear and

convincing evidence the allegations filed against Respondent in

the Administrative Complaint. § 120.57(1)(j), Fla. Stat.;

Department of Banking and Finance, Division of Securities and

Investor Protection v. Osborne, Stern and Co. , 670 So. 2d 932

(Fla. 1996).

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

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

1989), provides the following guidance regarding the clear and

convincing evidence standard:

That standard has been described as

follows: [C]lear and convincing evidence

requires that the evidence must be found

credible; the facts to which the witnesses

testify must be distinctly remembered; the

evidence must be precise and explicit and

the witnesses must be lacking in confusion

as to the facts in issue. The evidence must

be of such weight that it produces in mind

of the trier of fact the firm belief of

[sic] conviction, without hesitancy, as to

the truth of the allegations sought to be

established.

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

17. The Administrative Complaint alleges that Respondent

is guilty of violating Subsections 489.129(1)(g)2., (j), (m),

Florida Statutes, which provide, in pertinent part, as follows:

(1) The Board may take any of the

following actions against any certificate

holder or registrant: place on probation or

reprimand the licensee, revoke, suspend, or

deny the issuance or renewal of the

certificate or registration, require

financial restitution to a consumer, impose

and administrative fine not to exceed $5,000

per violation, require continuing education,

or assess costs associated with

investigation and prosecution, if the

contractor . . . or business organization

for which the contractor is a primary

qualifying agent . . . is fond guilty of any

of the following acts:

* * *

(g) Committing mismanagement or

misconduct in the practice of contracting

that cause financial harm to a customer.

Financial mismanagement or misconduct occurs

when:

* * *

2. The contractor has abandoned a

customer's job and the percentage of

completion is less than the percentage of

the total contract price paid to the

contractor as of the time of abandonment,

unless the contractor is entitled to retain

such funds under the terms of the contractor

or refunds the excess funds within 30 days

after the date the job is abandoned;

* * *

(j) Abandoning a construction project in

which the contractor is engaged or under

contract as a contractor. A project may be

presumed abandoned after 90 days if the

contractor terminates the project without

just cause or without proper notification to

the owner, including reason for termination,

or fails to perform work without just cause

for 90 consecutive days.

* * *

(m) Committing incompetency or misconduct

in the practice of contracting.

18. Petitioner has proven by clear and convincing evidence

that Respondent violated Subsection 489.129(1)(g)2., Florida

Statutes (Count I of the Administrative Complaint), by

committing mismanagement or misconduct in the practice of

contracting that causes financial harm to a customer.

Respondent accepted the deposit from Heston under the contract

and completed no work. Respondent claimed that he was unable to

return the money, yet provided no accounting as to where or how

the money was expended. Failure to account TO Mr. Heston is

mismanagement and misconduct in the practice of contracting.

19. Petitioner has proven by clear and convincing evidence

that Respondent violated Subsection 489.129(1)(j), Florida

Statutes (Count II of the Administrative Complaint), by

abandoning a construction project in which the contractor is

engaged or under contract. Respondent took a deposit of 50

percent of the contract price on February 10, 2009, and did not

perform any work at all, even after the homeowner demanded

Respondent honor his contract. Neither did Respondent provide

any notification to Heston that the work had stopped. Further,

Respondent's explanation at the hearing as to the reason for his

failure to perform was indefinite and did not show mitigation.

20. Petitioner has proven by clear and convincing evidence

that Respondent violated Subsection 489.129(1)(m), Florida

Statutes (Count III of the Administrative Complaint), by

divesting the deposit money for the Heston project for purposes

other than completing the re-roofing of Heston's house. Florida

Administrative Code Rule 61G4-17.001(1)(m)2. provides that

misconduct or incompetency in the practice of contracting shall

include violating any provision of Florida Administrative Code

Chapter 61G4, or Chapter 489, Part I, Florida Statutes.

Respondent violated Subsection 489.129(1)(m), Florida Statutes,

by violating Subsections 489.129(1)(g)2. and (j), Florida

Statutes, as provided in paragraphs six and seven above.

21. Respondent is subject to disciplinary action by the

CILB pursuant to Sections 455.227 and 489.129, Florida Statutes.

The disciplinary action under these statutes includes revoking,

suspending, and denying the issuance or renewal of the

certificate or registration; requiring financial restitution to

the consumer; imposing an administrative fine not to exceed

$5,000.00 per violation; requiring continuing education; and

assessing costs associated with investigation and prosecution.

22. Subsection 455.2273(5), Florida Statutes, states that

the Administrative Law Judge, in recommending penalties in a

recommended order, must follow the penalty guidelines

established by the CILB or the Department and must state, in

writing, the mitigating or aggravating circumstances upon which

the recommended penalty is based.

23. Florida Administrative Code Rule 61G4-17.002 provides,

in pertinent part, the following:

Circumstances which may be considered for

the purpose of mitigation or aggravation of

penalty shall include, but are not limited

to, the following:

(1) Monetary or other damage to the

licensee's customer, in any way associated

with the violation, which damage the

licensee has not relieved, as of the time

the penalty is to be assessed. (This

provision shall not be given effect to the

extent it would contravene federal

bankruptcy law.)

(2) Actual job-site violations of

building codes, or conditions exhibiting

gross negligence, incompetence, or

misconduct by the licensee, which have not

been corrected as of the time the penalty is

being assessed.

(3) The danger to the public.

(4) The number of complaints filed

against the licensee.

(5) The length of time the licensee has

practiced.

(6) The actual damage, physical or

otherwise, to the licensee's customer.

(7) The deterrent effect of the penalty

imposed.

(8) The effect of the penalty upon the

licensee's livelihood.

(9) Any efforts at rehabilitation.

(10) Any other mitigating or aggravating

circumstances.

24. Pursuant to Florida Administrative Code Rule 61G4-

17.003, a repeat violation is any violation on which

disciplinary action is being taken where the same licensee had

disciplinary action taken against him regardless of whether the

violations in the present and prior disciplinary actions are of

the same or different subsections of the disciplinary statutes.

Additionally, if the repeat violation is the very same type of

violation, the penalty set out above will generally be increased

over what is otherwise shown for repeat violations in the above

list.

25. Florida Administrative Code Rule 61G4-17.001 provides

the following guidelines that are pertinent to this proceeding:

(1) The following guidelines shall be

used in disciplinary cases, absent

aggravating or mitigating circumstances and

subject to the other provisions of this

Chapter.

* * *

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

Mismanagement or misconduct causing

financial harm to the customer. First

violation, $1,500 to $5,000 fine, suspension

and/or probation.

* * *

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

Abandonment. First violation $2,500 to

$7,500 fine; probation or suspension.

* * *

(m) Misconduct or incompetency in the

practice of contracting, shall include, but

is not limited to:

* * *

(2) Violation of any provision of Chapter

61G4, F.A.C., or Chapter 489, Part I., F.S.

* * *

(4) The following guidelines shall apply

to cases involving misconduct or

incompetency in the practice of contracting,

absent aggravating or mitigating

circumstances:

* * *

(b) Violation of any provision of Chapter

61G4, F.A.C., or Chapter 489, Part I, F.S.

First violation, $1,500.00 to $2,500.00

fine; and probation or suspension.

26. There is no evidence that Respondent has been

previously disciplined for violations under Chapters 489 or 455,

Florida Statutes, therefore, the penalty guidelines that should

be used are for a first violation. In addition, this was the

only complaint filed against Respondent.

27. Respondent's explanation as to his inability to return

the deposit made by the homeowner is not persuasive. However,

Respondent's offer to make restitution appears to be genuine.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is

RECOMMENDED that Petitioner, Department of Business and

Professional Regulation, Construction Industry Licensing Board,

issue a final order, as follows:

1. Finding Respondent guilty of having violated Subsection

489.129(1)(g)2., Florida Statutes, as alleged in Count I of the

Administrative Complaint, and imposing as a penalty an

administrative fine in the amount of $1,500.00.

2. Finding Respondent guilty of having violated Subsection

489.129(1)(j), Florida Statutes, as alleged in Count II of the

Administrative Complaint, and imposing as a penalty an

administrative fine in the amount of $2,500.00.

3. Finding Respondent guilty of having violated Subsection

489.129(1)(m), Florida Statutes, as alleged in Count III of the

Administrative Complaint, and imposing as a penalty an

administrative fine in the amount of $1,500.00.

4. Ordering Respondent to pay financial restitution to the

consumer, William Heston, in the amount of $7,000.00,

representing the deposit paid to Respondent.

5. Requiring Respondent to pay Petitioner's costs of

investigation and prosecution, excluding costs associated with

an attorney's time, in the amount of $427.12.

6. Suspending Respondent's license to practice contracting

(No. CCC 1328032) for a period of one year, followed by

probation for two years.

DONE AND ENTERED this 19th day of July, 2010, in

Tallahassee, Leon County, Florida.

S

DANIEL M. KILBRIDE

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

[phone]

Fax Filing [phone]

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 19th day of July, 2010.

ENDNOTE

1/ All statutory references are to Florida Statutes (2009),

unless otherwise noted.

COPIES FURNISHED :

G. W. Harrell, Executive Director

Department of Business and

Professional Regulation

Construction Industry Licensing Board

1940 North Monroe Street

Tallahassee, Florida 32399-0792

Reginald Dixon, General Counsel

Department of Business and

Professional Regulation

1940 North Monroe Street

Tallahassee, Florida 32399-0792

Sorin Ardelean, Esquire

Department of Business and

Professional Regulation

1940 North Monroe Street

Tallahassee, Florida 32399

Tracy M. Thomas

Tracy M. Thomas d/b/a Partnership

Remodeling and Roofing Services, Inc.

1810 Frontier Circle

LaBelle, Florida 33935

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within

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

to this Recommended Order should be filed with the agency that

will issue the Final Order in this case.