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.


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

1STATE OF FLORIDA

4DIVISION OF ADMINISTRATIVE HEARINGS

8DEPARTMENT OF BUSINESS AND )

13PROFESSIONAL REGULATION, )

16CONSTRUCTION INDUSTRY LICENSING )

20BOARD, )

22)

23Petitioner, )

25)

26vs. ) Case No. 10-1244

31)

32TRACY M. THOMAS, d/b/a PARTNERSHIP REMODELING AND )

40ROOFING SERVICES, INC., )

44)

45)

46Respondent. )

48)

49RECOMMENDED ORDER

51Pursuant to notice, a formal hearing was held before

60Daniel M. Kilbride, a duly-designated Administrative Law Judge

68of the Division of Administrative Hearings, on May 28, 2010, by

79video teleconference between sites in Fort Myers, Florida, and

88Tallahassee, Florida.

90APPEARANCES

91For Petitioner: Sorin Ardelean, Esquire

96Department of Business and

100Professional Regulation

1021940 North Monroe Street

106Tallahassee, Florida 32399

109For Respondent: Tracy Thomas, pro se

115Tracy M. Thomas d/b/a Partnership

120Remodeling and Roofing Services, Inc.

1251810 Frontier Circle

128La Belle, Florida 33935

132STATEMENT OF THE ISSUES

136Whether disciplinary action should be taken against

143Respondent's license to practice contracting, as charged in the

152three-count Administrative Complaint filed against Respondent in

159this proceeding, which alleged that Respondent violated

166Subsection 489.129(1)(g)2., Florida Statutes (2009), 1 by

173committing mismanagement or misconduct in the practice of

181contracting that causes financial harm to a customer; Subsection

190489.129(1)(j), Florida Statutes, by abandoning a construction

197project in which the contractor is engaged or under contract as

208a contractor; and Subsection 489.129(1)(m), Florida Statutes, by

216committing incompetency or misconduct in the practice of

224contracting; and, if so, what penalty should be assessed.

233PRELIMINARY STATEMENT

235On December 18, 2009, the Department of Business and

244Professional Regulation ("Petitioner"), filed a three-count

252Administrative Complaint alleging Tracy M. Thompson

258("Respondent") violated the laws regulating his professional

267activities as a certified roofing contractor in the State of

277Florida. Respondent disputed the allegations contained in the

285Administrative Complaint and elected to have a formal

293administrative hearing. As a result, the case was transferred

302to the Division of Administrative Hearings to conduct a hearing

312pursuant to Subsection 120.57(1), Florida Statutes.

318At the hearing, Petitioner offered the testimony of two

327witnesses: Angela Desmond and William Heston; and introduced

335five exhibits, each of which was entered into evidence.

344Respondent testified in his own behalf and introduced no other

354witnesses or exhibits into evidence.

359A Transcript of the hearing was prepared and filed on

369June 16, 2010. Petitioner filed its Proposed Recommended Order

378on June 25, 2010. Respondent, although advised that he may do

389so, has not filed his proposals as of the date of this

401Recommended Order.

403FINDINGS OF FACT

4061. Petitioner is the state agency charged with regulating

415the practice of contracting, including roofing contractors, in

423the State of Florida.

4272. At all times material, Respondent was a certified

436roofing contractor, having been issued License No. CCC 1328032

445by the Florida Construction Industry Licensing Board ("CILB").

455Respondent was the qualifier of Partnership Remodeling and

463Roofing Services, Inc.

4663. On February 10, 2009, Respondent entered into a

475contract with William Heston to re-roof Heston's home located at

4856002 Cocos Drive, Fort Myers, Florida 33908. The agreed price

495of the contract was $13,970.00.

5014. On or about February 10, 2009, Heston gave Respondent a

512check in the amount of $7,000.00 as a deposit, payable to

524Partnership Roofing Services.

5275. After being paid the deposit, Respondent did obtain a

537permit and filed a Notice of Commencement, but Respondent failed

547to commence work according to the contract.

5546. Heston attempted to contact Respondent numerous times

562to prompt him to start performing the work, to no avail.

5737. On March 6, 2009, Heston sent a letter to Respondent

584asking for the return of his deposit.

5918. Although Respondent claims that he had other financial

600obligations which prevented him from making restitution to the

609homeowner, Respondent verbally agreed numerous times to return

617the deposit to Heston, but he failed to do so.

6279. The percentage of contracted work completed was zero,

636while the percentage of the contract price paid to Respondent

646was 50 percent.

64910. The total investigative costs of this case to

658Petitioner, excluding costs associated with any attorney's time,

666was $427.00.

66811. Respondent has not had a prior disciplinary action

677filed against his license.

681CONCLUSIONS OF LAW

68412. The Division of Administrative Hearings has

691jurisdiction over the parties and subject matter of this

700proceeding pursuant to Section 120.569 and Subsection 120.57(1),

708Florida Statutes.

71013. Petitioner is the state agency charged with regulating

719the practice of contracting pursuant to Section 20.165 and

728Chapters 455 and 489, Florida Statutes.

73414. Pursuant to Section 489.129, Florida Statutes, the

742CILB is empowered to revoke, suspend, or otherwise discipline

751the license of a contractor who is found guilty of any of the

764grounds enumerated in Subsection 489.129(1), Florida Statutes.

77115. Petitioner has the burden of providing by clear and

781convincing evidence the allegations filed against Respondent in

789the Administrative Complaint. § 120.57(1)(j), Fla. Stat.;

796Department of Banking and Finance, Division of Securities and

805Investor Protection v. Osborne, Stern and Co. , 670 So. 2d 932

816(Fla. 1996).

81816. Evans Packing Co. v. Department of Agriculture and

827Consumer Services , 550 So. 2d 112, 116, fn. 5 (Fla. 1st DCA

8391989), provides the following guidance regarding the clear and

848convincing evidence standard:

851That standard has been described as

857follows: [C]lear and convincing evidence

862requires that the evidence must be found

869credible; the facts to which the witnesses

876testify must be distinctly remembered; the

882evidence must be precise and explicit and

889the witnesses must be lacking in confusion

896as to the facts in issue. The evidence must

905be of such weight that it produces in mind

914of the trier of fact the firm belief of

923[sic] conviction, without hesitancy, as to

929the truth of the allegations sought to be

937established.

938Slomowitz v. Walker , 429 So. 2d 797, 800 (Fla. 4th DCA 1983).

95017. The Administrative Complaint alleges that Respondent

957is guilty of violating Subsections 489.129(1)(g)2., (j), (m),

965Florida Statutes, which provide, in pertinent part, as follows:

974(1) The Board may take any of the

982following actions against any certificate

987holder or registrant: place on probation or

994reprimand the licensee, revoke, suspend, or

1000deny the issuance or renewal of the

1007certificate or registration, require

1011financial restitution to a consumer, impose

1017and administrative fine not to exceed $5,000

1025per violation, require continuing education,

1030or assess costs associated with

1035investigation and prosecution, if the

1040contractor . . . or business organization

1047for which the contractor is a primary

1054qualifying agent . . . is fond guilty of any

1064of the following acts:

1068* * *

1071(g) Committing mismanagement or

1075misconduct in the practice of contracting

1081that cause financial harm to a customer.

1088Financial mismanagement or misconduct occurs

1093when:

1094* * *

10972. The contractor has abandoned a

1103customer's job and the percentage of

1109completion is less than the percentage of

1116the total contract price paid to the

1123contractor as of the time of abandonment,

1130unless the contractor is entitled to retain

1137such funds under the terms of the contractor

1145or refunds the excess funds within 30 days

1153after the date the job is abandoned;

1160* * *

1163(j) Abandoning a construction project in

1169which the contractor is engaged or under

1176contract as a contractor. A project may be

1184presumed abandoned after 90 days if the

1191contractor terminates the project without

1196just cause or without proper notification to

1203the owner, including reason for termination,

1209or fails to perform work without just cause

1217for 90 consecutive days.

1221* * *

1224(m) Committing incompetency or misconduct

1229in the practice of contracting.

123418. Petitioner has proven by clear and convincing evidence

1243that Respondent violated Subsection 489.129(1)(g)2., Florida

1249Statutes (Count I of the Administrative Complaint), by

1257committing mismanagement or misconduct in the practice of

1265contracting that causes financial harm to a customer.

1273Respondent accepted the deposit from Heston under the contract

1282and completed no work. Respondent claimed that he was unable to

1293return the money, yet provided no accounting as to where or how

1305the money was expended. Failure to account TO Mr. Heston is

1316mismanagement and misconduct in the practice of contracting.

132419. Petitioner has proven by clear and convincing evidence

1333that Respondent violated Subsection 489.129(1)(j), Florida

1339Statutes (Count II of the Administrative Complaint), by

1347abandoning a construction project in which the contractor is

1356engaged or under contract. Respondent took a deposit of 50

1366percent of the contract price on February 10, 2009, and did not

1378perform any work at all, even after the homeowner demanded

1388Respondent honor his contract. Neither did Respondent provide

1396any notification to Heston that the work had stopped. Further,

1406Respondent's explanation at the hearing as to the reason for his

1417failure to perform was indefinite and did not show mitigation.

142720. Petitioner has proven by clear and convincing evidence

1436that Respondent violated Subsection 489.129(1)(m), Florida

1442Statutes (Count III of the Administrative Complaint), by

1450divesting the deposit money for the Heston project for purposes

1460other than completing the re-roofing of Heston's house. Florida

1469Administrative Code Rule 61G4-17.001(1)(m)2. provides that

1475misconduct or incompetency in the practice of contracting shall

1484include violating any provision of Florida Administrative Code

1492Chapter 61G4, or Chapter 489, Part I, Florida Statutes.

1501Respondent violated Subsection 489.129(1)(m), Florida Statutes,

1507by violating Subsections 489.129(1)(g)2. and (j), Florida

1514Statutes, as provided in paragraphs six and seven above.

152321. Respondent is subject to disciplinary action by the

1532CILB pursuant to Sections 455.227 and 489.129, Florida Statutes.

1541The disciplinary action under these statutes includes revoking,

1549suspending, and denying the issuance or renewal of the

1558certificate or registration; requiring financial restitution to

1565the consumer; imposing an administrative fine not to exceed

1574$5,000.00 per violation; requiring continuing education; and

1582assessing costs associated with investigation and prosecution.

158922. Subsection 455.2273(5), Florida Statutes, states that

1596the Administrative Law Judge, in recommending penalties in a

1605recommended order, must follow the penalty guidelines

1612established by the CILB or the Department and must state, in

1623writing, the mitigating or aggravating circumstances upon which

1631the recommended penalty is based.

163623. Florida Administrative Code Rule 61G4-17.002 provides,

1643in pertinent part, the following:

1648Circumstances which may be considered for

1654the purpose of mitigation or aggravation of

1661penalty shall include, but are not limited

1668to, the following:

1671(1) Monetary or other damage to the

1678licensee's customer, in any way associated

1684with the violation, which damage the

1690licensee has not relieved, as of the time

1698the penalty is to be assessed. (This

1705provision shall not be given effect to the

1713extent it would contravene federal

1718bankruptcy law.)

1720(2) Actual job-site violations of

1725building codes, or conditions exhibiting

1730gross negligence, incompetence, or

1734misconduct by the licensee, which have not

1741been corrected as of the time the penalty is

1750being assessed.

1752(3) The danger to the public.

1758(4) The number of complaints filed

1764against the licensee.

1767(5) The length of time the licensee has

1775practiced.

1776(6) The actual damage, physical or

1782otherwise, to the licensee's customer.

1787(7) The deterrent effect of the penalty

1794imposed.

1795(8) The effect of the penalty upon the

1803licensee's livelihood.

1805(9) Any efforts at rehabilitation.

1810(10) Any other mitigating or aggravating

1816circumstances.

181724. Pursuant to Florida Administrative Code Rule 61G4-

182517.003, a repeat violation is any violation on which

1834disciplinary action is being taken where the same licensee had

1844disciplinary action taken against him regardless of whether the

1853violations in the present and prior disciplinary actions are of

1863the same or different subsections of the disciplinary statutes.

1872Additionally, if the repeat violation is the very same type of

1883violation, the penalty set out above will generally be increased

1893over what is otherwise shown for repeat violations in the above

1904list.

190525. Florida Administrative Code Rule 61G4-17.001 provides

1912the following guidelines that are pertinent to this proceeding:

1921(1) The following guidelines shall be

1927used in disciplinary cases, absent

1932aggravating or mitigating circumstances and

1937subject to the other provisions of this

1944Chapter.

1945* * *

1948(g) Section 489.129(1)(g), F.S.:

1952Mismanagement or misconduct causing

1956financial harm to the customer. First

1962violation, $1,500 to $5,000 fine, suspension

1970and/or probation.

1972* * *

1975(j) Section 489.129(1)(j) F.S.:

1979Abandonment. First violation $2,500 to

1985$7,500 fine; probation or suspension.

1991* * *

1994(m) Misconduct or incompetency in the

2000practice of contracting, shall include, but

2006is not limited to:

2010* * *

2013(2) Violation of any provision of Chapter

202061G4, F.A.C., or Chapter 489, Part I., F.S.

2028* * *

2031(4) The following guidelines shall apply

2037to cases involving misconduct or

2042incompetency in the practice of contracting,

2048absent aggravating or mitigating

2052circumstances:

2053* * *

2056(b) Violation of any provision of Chapter

206361G4, F.A.C., or Chapter 489, Part I, F.S.

2071First violation, $1,500.00 to $2,500.00

2078fine; and probation or suspension.

208326. There is no evidence that Respondent has been

2092previously disciplined for violations under Chapters 489 or 455,

2101Florida Statutes, therefore, the penalty guidelines that should

2109be used are for a first violation. In addition, this was the

2121only complaint filed against Respondent.

212627. Respondent's explanation as to his inability to return

2135the deposit made by the homeowner is not persuasive. However,

2145Respondent's offer to make restitution appears to be genuine.

2154RECOMMENDATION

2155Based on the foregoing Findings of Fact and Conclusions of

2165Law, it is

2168RECOMMENDED that Petitioner, Department of Business and

2175Professional Regulation, Construction Industry Licensing Board,

2181issue a final order, as follows:

21871. Finding Respondent guilty of having violated Subsection

2195489.129(1)(g)2., Florida Statutes, as alleged in Count I of the

2205Administrative Complaint, and imposing as a penalty an

2213administrative fine in the amount of $1,500.00.

22212. Finding Respondent guilty of having violated Subsection

2229489.129(1)(j), Florida Statutes, as alleged in Count II of the

2239Administrative Complaint, and imposing as a penalty an

2247administrative fine in the amount of $2,500.00.

22553. Finding Respondent guilty of having violated Subsection

2263489.129(1)(m), Florida Statutes, as alleged in Count III of the

2273Administrative Complaint, and imposing as a penalty an

2281administrative fine in the amount of $1,500.00.

22894. Ordering Respondent to pay financial restitution to the

2298consumer, William Heston, in the amount of $7,000.00,

2307representing the deposit paid to Respondent.

23135. Requiring Respondent to pay Petitioner's costs of

2321investigation and prosecution, excluding costs associated with

2328an attorney's time, in the amount of $427.12.

23366. Suspending Respondent's license to practice contracting

2343(No. CCC 1328032) for a period of one year, followed by

2354probation for two years.

2358DONE AND ENTERED this 19th day of July, 2010, in

2368Tallahassee, Leon County, Florida.

2372S

2373DANIEL M. KILBRIDE

2376Administrative Law Judge

2379Division of Administrative Hearings

2383The DeSoto Building

23861230 Apalachee Parkway

2389Tallahassee, Florida 32399-3060

2392(850) 488-9675

2394Fax Filing (850) 921-6847

2398www.doah.state.fl.us

2399Filed with the Clerk of the

2405Division of Administrative Hearings

2409this 19th day of July, 2010.

2415ENDNOTE

24161/ All statutory references are to Florida Statutes (2009),

2425unless otherwise noted.

2428COPIES FURNISHED :

2431G. W. Harrell, Executive Director

2436Department of Business and

2440Professional Regulation

2442Construction Industry Licensing Board

24461940 North Monroe Street

2450Tallahassee, Florida 32399-0792

2453Reginald Dixon, General Counsel

2457Department of Business and

2461Professional Regulation

24631940 North Monroe Street

2467Tallahassee, Florida 32399-0792

2470Sorin Ardelean, Esquire

2473Department of Business and

2477Professional Regulation

24791940 North Monroe Street

2483Tallahassee, Florida 32399

2486Tracy M. Thomas

2489Tracy M. Thomas d/b/a Partnership

2494Remodeling and Roofing Services, Inc.

24991810 Frontier Circle

2502LaBelle, Florida 33935

2505NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

2511All parties have the right to submit written exceptions within

252115 days from the date of this Recommended Order. Any exceptions

2532to this Recommended Order should be filed with the agency that

2543will issue the Final Order in this case.

Select the PDF icon to view the document.
PDF
Date
Proceedings
PDF:
Date: 07/19/2010
Proceedings: Recommended Order
PDF:
Date: 07/19/2010
Proceedings: Recommended Order (hearing held May 28, 2010). CASE CLOSED.
PDF:
Date: 07/19/2010
Proceedings: Recommended Order cover letter identifying the hearing record referred to the Agency.
PDF:
Date: 06/25/2010
Proceedings: Petitioner's Proposed Recomended Order filed.
Date: 06/16/2010
Proceedings: Transcript of Proceedings filed.
Date: 05/28/2010
Proceedings: CASE STATUS: Hearing Held.
PDF:
Date: 05/11/2010
Proceedings: Amended Petitioner's Witnesses List filed.
PDF:
Date: 05/06/2010
Proceedings: Notice of Service of Petitioner's Exhibits and Witnesses List (exhibits not attached) filed.
PDF:
Date: 04/07/2010
Proceedings: Order of Pre-hearing Instructions.
PDF:
Date: 04/07/2010
Proceedings: Notice of Hearing by Video Teleconference (hearing set for May 28, 2010; 9:30 a.m.; Fort Myers and Tallahassee, FL).
PDF:
Date: 03/23/2010
Proceedings: Unilateral Response to Initial Order filed.
PDF:
Date: 03/15/2010
Proceedings: Initial Order.
PDF:
Date: 03/15/2010
Proceedings: Election of Rights filed.
PDF:
Date: 03/15/2010
Proceedings: Administrative Complaint filed.
PDF:
Date: 03/15/2010
Proceedings: Agency referral filed.

Case Information

Judge:
DANIEL M. KILBRIDE
Date Filed:
03/15/2010
Date Assignment:
03/15/2010
Last Docket Entry:
07/19/2010
Location:
Fort Myers, Florida
District:
Middle
Agency:
Department of Business and Professional Regulation
 

Counsels

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