07-004376PL Department Of Business And Professional Regulation, Construction Industry Licensing Board vs. Greg Alan Roach Status: Closed Recommended Order on Monday, March 31, 2008.

Summary: Respondent failed to pull the permit, failed to get inspections and abandoned the project.

Case Nos. 07-4376PL

07-4377PL

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF BUSINESS AND )

PROFESSIONAL REGULATION, RECOMMENDED ORDER )

CONSTRUCTION INDUSTRY LICENSING )

BOARD, )

Petitioner, )

)

vs. )

)

GREG ALAN ROACH, )

)

Respondent. )

)

)

Pursuant to notice, a final hearing was held in this

consolidated case on February 5, 2008, in Orlando, Florida,

before Susan B. Harrell, a designated Administrative Law Judge

of the Division of Administrative Hearings (DOAH).

APPEARANCES

For Petitioner: Collin W. L. Mcleod, Esquire

Wright, Fulford, Moorhead & Brown, P.A.

145 North Magnolia Avenue

Orlando, Florida 32803

For Respondent: (No appearance)

STATEMENT OF THE ISSUES

The issues in Case No. 07-4376PL are whether Respondent

and 489.129(1)(j), (m), and (o), Florida Statutes (2004), 1 and,

if so, what discipline should be imposed.

The issues in Case No. 07-4377PL are whether Respondent

violated Subsections 489.1425(1), and 489.129(1)(i) and (o),

Florida Statutes, and, if so, what discipline should be imposed.

PRELIMINARY STATEMENT

On March 16, 2006, the Department of Business and

Professional Regulation (Department) filed a two-count

Administrative Complaint against Respondent, Greg Alan Roach

(Mr. Roach), alleging that Mr. Roach violated Subsections

On June 30, 2006, the Department, filed a five-count

Administrative Complaint against Mr. Roach, alleging that

Mr. Roach violated Subsections 489.129(1)(i), 489.119(2),

(m), and (o), Florida Statutes.

In both instances, Mr. Roach requested an administrative

hearing, and the cases were forwarded to DOAH on September 20,

2007, for assignment to an Administrative Law Judge. The cases

were originally assigned to Administrative Law Judge, Charles C.

Adams. The cases were transferred to the undersigned

Administrative Law Judge on October 9, 2007. For Case No. 07-

4376PL, a final hearing was initially scheduled for December 4,

2007, and for Case No. 07-4377PL, a final hearing was initially

scheduled for December 11, 2007.

In both cases, a Motion for Substitution of Counsel was

filed by the Department on October 25, 2007, to request the

substitution of its counsel, and the requests were granted.

On November 15, 2007, a Motion to Consolidate and Continue

Hearings was filed by the Department. A motion hearing was held

by telephonic conference, and ultimately, on November 21, 2007,

two orders were issued granting the requests set forth in the

Department's motion. The first order consolidated Case Nos. 07-

4376PL and 07-4377PL; the second order granted a continuance to

the parties and re-scheduled the final hearing to February 5,

2008.

On January 16, 2008, the Department filed a Motion for

Summary Final Order, or in the Alternative Petitioner's Motion

to Relinquish Jurisdiction. A motion hearing was held by

telephonic conference, and both of the requests set forth in the

Department's motion were denied.

On February 5, 2008, in Orlando, Florida, the final hearing

was scheduled to commence at 9:00 a.m. Neither the Respondent,

Mr. Roach, nor a party acting as his representative appeared at

the scheduled time. The commencement of the final hearing was

delayed 20 minutes to allow Mr. Roach time to attend the final

hearing. The undersigned contacted DOAH, but Mr. Roach had not

contacted DOAH to advise as to why he had not appeared. The

final hearing commenced at 9:20 a.m., and neither Mr. Roach nor

a representative of Mr. Roach appeared at the final hearing.

As a preliminary matter, the requests for admissions

contained in both of Petitioner's First Requests for Admissions

to Respondent were deemed admitted pursuant to Florida Rules of

Civil Procedure 1.370(a), and admitted into evidence as

Petitioner's Exhibits 1 and 2.

In Case No. 07-4376PL, the Department presented the

testimony of one witness, Alywin Pang (Mr. Pang), and

Petitioner's Exhibits 1 through 12 were admitted into evidence.

In Case No. 07-4377PL, the Department presented the testimony of

two witnesses, Nilda Perez (Ms. Perez) and Darlene Talley

(Ms. Talley), and Petitioner's Exhibits 13 through 16 were

admitted into evidence.

The record was held open to allow the Department to file

the final orders in Mr. Roach's prior disciplinary cases. On

February 11, 2008, the Department filed the Final Order in DBPR

No. 2005-041224. This Final Order is admitted as Petitioner's

Exhibit 14.

The Transcript of the final hearing was filed on

February 26, 2008. The Department filed its Proposed

Recommended Order on March 7, 2008. No proposed recommended

order has been filed by Mr. Roach. The Department's Proposed

Recommended Order has been given consideration in the

preparation of this Recommended Order.

FINDINGS OF FACT

1. Petitioner is the state agency charged with regulating

the practice of contracting pursuant to Section 20.165 and

Chapters 455 and 489, Florida Statutes.

2. Mr. Roach is, and was at all times material to this

action, a certified roofing contractor in the State of Florida

having been issued License No. CCC1326005.

3. Mr. Roach's Certified Roofing Contractor License

No. CCC1326005 is current and active.

4. Mr. Roach's current addresses of record are Post Office

Box 345, Orange Springs, Florida, and 22204 U.S. Highway 301,

Hawthorne, Florida.

5. At all times material to this action, Mr. Roach was a

licensed qualifier for All Florida Roofing Contractors, Inc.

(All Florida).

6. There is evidence in the record sufficient to establish

that Mr. Roach has been previously disciplined for a violation

under Chapter 489, Florida Statutes. Notably, Mr. Roach has

been previously disciplined for, among other things, violations

of Subsections 489.129(1)(m) and (o), Florida Statutes.

Case No. 07-4376PL

7. Mr. Roach failed to obtain a Certificate of Authority

for All Florida, as required by Subsection 489.119(2), Florida

Statutes.

8. On or about August 23, 2004, Mr. Pang contracted with

Mr. Roach, to remove and replace the hurricane-damaged roof of

his hotel property located at 1620 West Vine Street, Kissimmee,

Florida.

9. The contract price for the aforementioned project was

$40,000.00. Mr. Pang made an initial payment of $2,250.00 on

August 22, 2004, and another payment of $20,000.00 on August 23,

2004.

10. As part of the contract, All Florida was required to

pull the building permits for the project, and Mr. Roach failed

to do this.

11. Mr. Roach commenced work on the project on or about

September 7, 2004. On or about late September 2004, he ceased

work on the project, and the project remained unfinished.

12. Mr. Pang paid All Florida an additional $10,000.00 on

September 16, 2004.

13. On October 1, 2004, the City of Kissimmee issued a

Notice of Violation against Mr. Pang for failure to have a

building permit for the work that had been performed by

Mr. Roach on the roof.

14. Mr. Roach scheduled repairs on the project, but did

not return to the project.

15. Mr. Roach did not have any inspections performed on

the roof.

16. Later, another contractor hired by Mr. Pang finished

the roofing project at a cost of an additional $32,975.00.

Case No. 07-4377PL

17. On or about September 15, 2004, Ms. Perez contracted

with Mr. Roach to repair roof damage to her residence at 1502

Golden Poppy Court, Orlando, Florida.

18. The contract price for the aforementioned project was

$7,268.32, of which Mr. Roach was paid $3,634.16 on

September 18, 2004.

19. The contract entered into between Ms. Perez and

Mr. Roach failed to inform the homeowner of the Construction

Industry Recovery Fund.

20. On or about October 27, 2004, the Orange County

Building Department issued Mr. Roach a permit for the

aforementioned project (Permit No. T04018050).

21. Mr. Roach did not have any inspections performed on

the roof.

22. On September 25, 2004, Ms. Perez paid $3,614.16 to All

Florida, which was the remaining amount of the contract.

23. Another contractor was hired by Ms Perez to correct

deficient aspects of Mr. Roach's work on the roof at a cost of

$900.00.

CONCLUSIONS OF LAW

24. The Division of Administrative Hearings has

jurisdiction over the parties to and the subject matter of this

proceeding. §§ 120.569 and 120.57, Fla. Stat. (2007).

25. The Department has the burden to establish the

allegations in the Administrative Complaints by clear and

convincing evidence. Department of Banking and Finance v.

Osborne Stern and Co. , 670 So. 2d 932 (Fla. 1996). In Case

No. 07-4376PL, the Department alleged that Mr. Roach violated

Subsection 489.129(1)(i), Florida Statutes, by failing to comply

with Subsection 489.119(2), Florida Statutes, and Subsection

489.126(2)(a), Florida Statutes. The Department also alleged

Florida Statutes.

26. In Case No. 07-4377PL, the Department alleged that

Mr. Roach violated Subsection 489.129(1)(i), Florida Statutes,

by failing to comply with Subsection 489.1425(1), Florida

Statutes. The Department also alleged that Mr. Roach violated

Subsection 489.129(1)(o), Florida Statutes.

27. Subsection 489.129(1), Florida Statutes, provides that

the following constitutes grounds for disciplinary action:

(i) Failing in any material respect to

comply with the provisions of this part or

violating a rule or lawful order of the

board.

* * *

(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 the 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.

* * *

(o) Proceeding on any job without obtaining

applicable local building department permits

and inspections.

28. Subsection 489.119(2), Florida Statutes, provides:

(2) If the applicant proposes to engage in

contracting as a business organization,

including any partnership, corporation,

business trust, or other legal entity, or in

any name other than the applicant's legal

name or a fictitious name where the

applicant is doing business as a sole

proprietorship, the business organization

must apply for a certificate of authority

through a qualifying agent and under the

fictitious name, if any.

29. Subsection 489.126(2)(a), Florida Statutes, provides:

(2) A contractor who receives, as initial

payment, money totaling more than 10 percent

of the contract price for repair,

restoration, improvement, or construction to

residential real property must:

(a) Apply for permits necessary to do work

within 30 days after the date payment is

made. . . .

30. Subsection 489.1425(1), Florida Statutes, provides:

(1) Any agreement or contract for repair,

restoration, improvement, or construction to

residential real property must contain a

written statement explaining the consumer's

rights under the recovery fund, except where

the value of all labor and materials does

not exceed $2,500. . . .

31. The clear and convincing evidence established that

Mr. Roach was the primary qualifying agent for All Florida at

all materially relevant times. Subsection 489.1195(1)(a),

Florida Statutes, provides:

(1) A qualifying agent is a primary

qualifying agent unless he or she is the

secondary qualifying agent under this

section.

(a) All primary qualifying agents for a

business organization are jointly and

equally responsible for supervision of all

operations of the business organization; for

all field work at all sites; and for

financial matters, both for the organization

in general and for each specific job.

As the primary qualifying agent for All Florida, Mr. Roach is

jointly and equally responsible for the work that was performed

on the roofs of Mr. and Mrs. Pang and Ms. Perez.

Case No. 07-4376PL

32. In regard to Case No. 07-4376PL, the Department

established by clear and convincing evidence that Mr. Roach

engaged in the business of contracting via the corporate entity

of All Florida without first obtaining a Certificate of

Authority, as required by Subsection 489.119(2), Florida

Statutes. In so doing, Mr. Roach violated Subsection

489.129(1)(i), Florida Statutes, by failing, in a material

respect, to comply with the provisions of Chapter 489, Part I,

Florida Statutes.

33. The Department concedes in its Proposed Recommended

Order that Subsection 489.126(2)(a) cannot apply to Mr. Roach in

this instance. 2

34. The Department established by clear and convincing

evidence that Mr. Roach violated Subsection 489.129(1)(j),

Florida Statutes. Mr. Roach abandoned work on the project, in

late September 2004, and never returned. The project remained

unfinished at that time, with scheduled repairs yet to be

completed.

35. The Department established by clear and convincing

evidence that Mr. Roach violated Subsection 489.129(1)(o),

Florida Statutes, by failing to obtain the appropriate

permitting or inspection for the roofing project.

36. The Department established by clear and convincing

evidence that Mr. Roach violated Subsection 489.129(1)(m),

Florida Statutes, through incompetency and misconduct in the

contracting work he performed for Mr. Pang. The record

evidences that Mr. Roach failed to pull the proper permits,

abandoned the project, and failed to set inspections.

Case No. 07-4377PL

37. In regard to Case No. 07-4377PL, the Department

established by clear and convincing evidence that Mr. Roach

entered into a contract, exceeding $2,500, with Ms. Perez that

failed to notify her of her rights under the Construction

Industry Recovery Fund, as required by Subsection 489.1425(1),

Florida Statutes. In so doing, Mr. Roach violated Subsection

489.129(1)(i), Florida Statutes, by failing, in a material

respect, to comply with the provisions of Chapter 489, Part I,

Florida Statutes.

38. The Department established by clear and convincing

evidence that Mr. Roach violated Subsection 489.129(1)(o),

Florida Statutes, by failing to obtain the appropriate

inspection of the roofing project.

39. The Department has established that Mr. Roach has been

previously disciplined for violations under Chapter 489, Florida

Statutes, including, but not limited to, violations of

Subsections 489.129(1)(i), (m) and (o), Florida Statutes;

Subsection 489.119(3)(a), Florida Statutes; and Subsection

489.1425(1), Florida Statutes (Petitioner's Exhibit 14).

Florida Administrative Code Rule 61G4-17.003 provides:

(1) As used in this rule, a repeat

violation is any violation on which

disciplinary action is being taken where the

same licensee had previously had

disciplinary action taken against him or

received a letter of guidance in a prior

case; and said definition is to apply

regardless of whether the violations in the

present and prior disciplinary actions are

of the same or different subsections of the

disciplinary statutes.

(2) The penalty given in the above list for

repeat violations is intended to apply only

to situations where the repeat violation is

of a different subsection of Chapter 489,

F.S., than the first violation. Where, on

the other hand, the repeat violation is the

very same type of violation as the first

violation, the penalty set out above will

generally be increased over what is

otherwise shown for repeat violations in the

above list.

The increased administrative penalties for repeat offenders

provided in the guidelines of Rule 61G4-17.001, Florida

Administrative Code are applicable when recommending the

appropriate penalties for Mr. Roach. Moreover, pursuant to

Florida Administrative Code Rule 61G4-17.003(2), the violations

of Subsections 489.129(1)(m) and (o) may have their penalties

increased over and above those listed in Florida Administrative

Code Rule 61G4-17.001, as these are repeat violations of the

same subsection.

40. The costs of investigation and prosecution, excluding

attorney time, in this consolidated case are to be assessed by

the board pursuant to Florida Administrative Code Rule 61G4-

17.001(4), (2007), which provides:

(4) In addition, the board shall assess the

costs of investigation and prosecution,

excluding costs related to attorney time.

However, since no evidence was presented at the final hearing on

the Department's costs, no reasonable basis can be formed as to

what the costs may have been.

41. The board is required to order Mr. Roach to make

restitution to Mr. and Mrs. Pang and Ms. Perez for the financial

losses to them suffered as a result of contracting with All

Florida to repair their roofs, pursuant to Florida

Administrative Code Rule 61G4-17.001(4), which provides:

(4) For any violation occurring after

October 1, 1998, the board shall order the

contractor to make restitution in the amount

of financial loss suffered by the consumer.

Such restitution shall be ordered in

addition to the penalties provided by these

guidelines upon demonstration of aggravating

factors set forth in the subsection 61G4-

17.002(1), F.A.C., and to the extent that

such order does not contravene federal

bankruptcy law.

The evidence showed that All Florida was paid a total of

$32,250.00 by Mr. Pang for work that in the end had to be almost

entirely redone. After Mr. Roach fled the scene, later

corrective work performed on the roof totaled $32,750. It's

unclear what, if any, work of actual value was provided by

Mr. Roach to Mr. Pang, but assuming that what Mr. Pang

ultimately received was a $40,000 roof, then Mr. Pang's economic

loss is $25,000. As for Ms. Perez, the evidence showed that she

paid an additional $900 to another contractor to correct the

work Mr. Roach performed on her roof, so that is her economic

loss.

42. Florida Administrative Code Rule 61G4-17.002 contains

the relevant aggravating and mitigating factors used in

determining whether restitution should be given to a wronged

consumer and provides,

Circumstances which may be considered for

the purposes 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.

Of the above, factors (1), (2), and (4) are the most applicable

to the facts of these cases. Both the Pangs and Ms. Perez

suffered unrelieved money damages. Also, Mr. Pang was issued a

Notice of Violation for a lack of permitting on the roof work

conducted by Mr. Roach that doubled the fee for obtaining the

permit in the future.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is

RECOMMENDED that a final order be entered whose outcome is

the following:

1. That in Case No. 07-4376PL Respondent violated

2. Dismiss Count II of the Administrative Complaint in

Case No. 07-4376PL;

3. In Case No. 07-4376PL, imposing an administrative fine

of $1,000.00 for the violation of Subsection 489.129(1)(i),

Florida Statutes; imposing an administrative fine of $5,000.00

for the violation of Subsection 489.129(1)(j), Florida Statutes;

imposing an administrative fine of $2,500 for the violation of

Subsection 489.129(1)(o), Florida Statutes; no administrative

fine is recommended for the violation of 489.129(1)(m), Florida

Statutes, because the violation is included in the violations of

Subsections 489.129(1)(j) and (o), Florida Statutes;

4. That in Case No. 07-4377PL, Respondent violated

Subsections 489.129(1)(i) and (o), Florida Statutes;

5. In Case No. 07-4377PL, imposing an administrative fine

of $1,000 for the violation of Subsection 489.129(1)(i), Florida

Statutes; imposing an administrative fine of $2,500 for the

violation of Subsection 489.129(1)(o), Florida Statutes;

6. Requiring Respondent to make Restitution to Mr. and

Mrs. Pang in the amount of $25,000;

7. Requiring Respondent to make Restitution to Ms. Perez

in the amount of $900; and

8. Revoking Respondent's contractor license.

DONE AND ENTERED this 31st day of March, 2008, in

Tallahassee, Leon County, Florida.

S

SUSAN B. HARRELL

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

[phone] SUNCOM 278-9675

Fax Filing [phone]

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 31st day of March, 2008.

ENDNOTES

1/ All references to Florida Statutes and Florida Administrative

Code are to 2004, unless otherwise indicated.

2/ Subsection 489.126(a) applies only to residential buildings,

whereas this roofing repair was performed on a commercial

building.

COPIES FURNISHED :

Collin W. L. Mcleod, Esquire

Wright, Fulford, Moorhead & Brown, P.A.

145 North Magnolia Avenue

Orlando, Florida 32803

Greg Alan Roach

Post Office Box 345

Orange Springs, Florida 32182

Ned Luczynski, General Counsel

Department of Business and

Professional Regulation

Northwood Centre

1940 North Monroe Street

Tallahassee, Florida 32399-0792

G. W. Harrell, Executive Director

Construction Industry Licensing Board

Department of Business and

Professional Regulation

Northwood Centre

1940 North Monroe Street

Tallahassee, Florida 32399-0792

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.