07-004377PL
Department Of Business And Professional Regulation, Construction Industry Licensing Board vs.
Greg Alan Roach
Status: Closed
Recommended Order on Monday, March 31, 2008.
Recommended Order on Monday, March 31, 2008.
1Case Nos. 07-4376PL
407-4377PL
5STATE OF FLORIDA
8DIVISION OF ADMINISTRATIVE HEARINGS
12DEPARTMENT OF BUSINESS AND )
17PROFESSIONAL REGULATION, RECOMMENDED ORDER )
22CONSTRUCTION INDUSTRY LICENSING )
26BOARD, )
28Petitioner, )
30)
31vs. )
33)
34GREG ALAN ROACH, )
38)
39Respondent. )
41)
42)
43Pursuant to notice, a final hearing was held in this
53consolidated case on February 5, 2008, in Orlando, Florida,
62before Susan B. Harrell, a designated Administrative Law Judge
71of the Division of Administrative Hearings (DOAH).
78APPEARANCES
79For Petitioner: Collin W. L. Mcleod, Esquire
86Wright, Fulford, Moorhead & Brown, P.A.
92145 North Magnolia Avenue
96Orlando, Florida 32803
99For Respondent: (No appearance)
103STATEMENT OF THE ISSUES
107The issues in Case No. 07-4376PL are whether Respondent
116and 489.129(1)(j), (m), and (o), Florida Statutes (2004), 1 and,
126if so, what discipline should be imposed.
133The issues in Case No. 07-4377PL are whether Respondent
142violated Subsections 489.1425(1), and 489.129(1)(i) and (o),
149Florida Statutes, and, if so, what discipline should be imposed.
159PRELIMINARY STATEMENT
161On March 16, 2006, the Department of Business and
170Professional Regulation (Department) filed a two-count
176Administrative Complaint against Respondent, Greg Alan Roach
183(Mr. Roach), alleging that Mr. Roach violated Subsections
191On June 30, 2006, the Department, filed a five-count
200Administrative Complaint against Mr. Roach, alleging that
207Mr. Roach violated Subsections 489.129(1)(i), 489.119(2),
213(m), and (o), Florida Statutes.
218In both instances, Mr. Roach requested an administrative
226hearing, and the cases were forwarded to DOAH on September 20,
2372007, for assignment to an Administrative Law Judge. The cases
247were originally assigned to Administrative Law Judge, Charles C.
256Adams. The cases were transferred to the undersigned
264Administrative Law Judge on October 9, 2007. For Case No. 07-
2754376PL, a final hearing was initially scheduled for December 4,
2852007, and for Case No. 07-4377PL, a final hearing was initially
296scheduled for December 11, 2007.
301In both cases, a Motion for Substitution of Counsel was
311filed by the Department on October 25, 2007, to request the
322substitution of its counsel, and the requests were granted.
331On November 15, 2007, a Motion to Consolidate and Continue
341Hearings was filed by the Department. A motion hearing was held
352by telephonic conference, and ultimately, on November 21, 2007,
361two orders were issued granting the requests set forth in the
372Department's motion. The first order consolidated Case Nos. 07-
3814376PL and 07-4377PL; the second order granted a continuance to
391the parties and re-scheduled the final hearing to February 5,
4012008.
402On January 16, 2008, the Department filed a Motion for
412Summary Final Order, or in the Alternative Petitioner's Motion
421to Relinquish Jurisdiction. A motion hearing was held by
430telephonic conference, and both of the requests set forth in the
441Department's motion were denied.
445On February 5, 2008, in Orlando, Florida, the final hearing
455was scheduled to commence at 9:00 a.m. Neither the Respondent,
465Mr. Roach, nor a party acting as his representative appeared at
476the scheduled time. The commencement of the final hearing was
486delayed 20 minutes to allow Mr. Roach time to attend the final
498hearing. The undersigned contacted DOAH, but Mr. Roach had not
508contacted DOAH to advise as to why he had not appeared. The
520final hearing commenced at 9:20 a.m., and neither Mr. Roach nor
531a representative of Mr. Roach appeared at the final hearing.
541As a preliminary matter, the requests for admissions
549contained in both of Petitioner's First Requests for Admissions
558to Respondent were deemed admitted pursuant to Florida Rules of
568Civil Procedure 1.370(a), and admitted into evidence as
576Petitioner's Exhibits 1 and 2.
581In Case No. 07-4376PL, the Department presented the
589testimony of one witness, Alywin Pang (Mr. Pang), and
598Petitioner's Exhibits 1 through 12 were admitted into evidence.
607In Case No. 07-4377PL, the Department presented the testimony of
617two witnesses, Nilda Perez (Ms. Perez) and Darlene Talley
626(Ms. Talley), and Petitioner's Exhibits 13 through 16 were
635admitted into evidence.
638The record was held open to allow the Department to file
649the final orders in Mr. Roach's prior disciplinary cases. On
659February 11, 2008, the Department filed the Final Order in DBPR
670No. 2005-041224. This Final Order is admitted as Petitioner's
679Exhibit 14.
681The Transcript of the final hearing was filed on
690February 26, 2008. The Department filed its Proposed
698Recommended Order on March 7, 2008. No proposed recommended
707order has been filed by Mr. Roach. The Department's Proposed
717Recommended Order has been given consideration in the
725preparation of this Recommended Order.
730FINDINGS OF FACT
7331. Petitioner is the state agency charged with regulating
742the practice of contracting pursuant to Section 20.165 and
751Chapters 455 and 489, Florida Statutes.
7572. Mr. Roach is, and was at all times material to this
769action, a certified roofing contractor in the State of Florida
779having been issued License No. CCC1326005.
7853. Mr. Roach's Certified Roofing Contractor License
792No. CCC1326005 is current and active.
7984. Mr. Roach's current addresses of record are Post Office
808Box 345, Orange Springs, Florida, and 22204 U.S. Highway 301,
818Hawthorne, Florida.
8205. At all times material to this action, Mr. Roach was a
832licensed qualifier for All Florida Roofing Contractors, Inc.
840(All Florida).
8426. There is evidence in the record sufficient to establish
852that Mr. Roach has been previously disciplined for a violation
862under Chapter 489, Florida Statutes. Notably, Mr. Roach has
871been previously disciplined for, among other things, violations
879of Subsections 489.129(1)(m) and (o), Florida Statutes.
886Case No. 07-4376PL
8897. Mr. Roach failed to obtain a Certificate of Authority
899for All Florida, as required by Subsection 489.119(2), Florida
908Statutes.
9098. On or about August 23, 2004, Mr. Pang contracted with
920Mr. Roach, to remove and replace the hurricane-damaged roof of
930his hotel property located at 1620 West Vine Street, Kissimmee,
940Florida.
9419. The contract price for the aforementioned project was
950$40,000.00. Mr. Pang made an initial payment of $2,250.00 on
962August 22, 2004, and another payment of $20,000.00 on August 23,
9742004.
97510. As part of the contract, All Florida was required to
986pull the building permits for the project, and Mr. Roach failed
997to do this.
100011. Mr. Roach commenced work on the project on or about
1011September 7, 2004. On or about late September 2004, he ceased
1022work on the project, and the project remained unfinished.
103112. Mr. Pang paid All Florida an additional $10,000.00 on
1042September 16, 2004.
104513. On October 1, 2004, the City of Kissimmee issued a
1056Notice of Violation against Mr. Pang for failure to have a
1067building permit for the work that had been performed by
1077Mr. Roach on the roof.
108214. Mr. Roach scheduled repairs on the project, but did
1092not return to the project.
109715. Mr. Roach did not have any inspections performed on
1107the roof.
110916. Later, another contractor hired by Mr. Pang finished
1118the roofing project at a cost of an additional $32,975.00.
1129Case No. 07-4377PL
113217. On or about September 15, 2004, Ms. Perez contracted
1142with Mr. Roach to repair roof damage to her residence at 1502
1154Golden Poppy Court, Orlando, Florida.
115918. The contract price for the aforementioned project was
1168$7,268.32, of which Mr. Roach was paid $3,634.16 on
1179September 18, 2004.
118219. The contract entered into between Ms. Perez and
1191Mr. Roach failed to inform the homeowner of the Construction
1201Industry Recovery Fund.
120420. On or about October 27, 2004, the Orange County
1214Building Department issued Mr. Roach a permit for the
1223aforementioned project (Permit No. T04018050).
122821. Mr. Roach did not have any inspections performed on
1238the roof.
124022. On September 25, 2004, Ms. Perez paid $3,614.16 to All
1252Florida, which was the remaining amount of the contract.
126123. Another contractor was hired by Ms Perez to correct
1271deficient aspects of Mr. Roach's work on the roof at a cost of
1284$900.00.
1285CONCLUSIONS OF LAW
128824. The Division of Administrative Hearings has
1295jurisdiction over the parties to and the subject matter of this
1306proceeding. §§ 120.569 and 120.57, Fla. Stat. (2007).
131425. The Department has the burden to establish the
1323allegations in the Administrative Complaints by clear and
1331convincing evidence. Department of Banking and Finance v.
1339Osborne Stern and Co. , 670 So. 2d 932 (Fla. 1996). In Case
1351No. 07-4376PL, the Department alleged that Mr. Roach violated
1360Subsection 489.129(1)(i), Florida Statutes, by failing to comply
1368with Subsection 489.119(2), Florida Statutes, and Subsection
1375489.126(2)(a), Florida Statutes. The Department also alleged
1382Florida Statutes.
138426. In Case No. 07-4377PL, the Department alleged that
1393Mr. Roach violated Subsection 489.129(1)(i), Florida Statutes,
1400by failing to comply with Subsection 489.1425(1), Florida
1408Statutes. The Department also alleged that Mr. Roach violated
1417Subsection 489.129(1)(o), Florida Statutes.
142127. Subsection 489.129(1), Florida Statutes, provides that
1428the following constitutes grounds for disciplinary action:
1435(i) Failing in any material respect to
1442comply with the provisions of this part or
1450violating a rule or lawful order of the
1458board.
1459* * *
1462(j) Abandoning a construction project in
1468which the contractor is engaged or under
1475contract as a contractor. A project may be
1483presumed abandoned after 90 days if the
1490contractor terminates the project without
1495just cause or without proper notification to
1502the owner, including the reason for
1508termination, or fails to perform work
1514without just cause for 90 consecutive days.
1521* * *
1524(m) Committing incompetency or misconduct
1529in the practice of contracting.
1534* * *
1537(o) Proceeding on any job without obtaining
1544applicable local building department permits
1549and inspections.
155128. Subsection 489.119(2), Florida Statutes, provides:
1557(2) If the applicant proposes to engage in
1565contracting as a business organization,
1570including any partnership, corporation,
1574business trust, or other legal entity, or in
1582any name other than the applicant's legal
1589name or a fictitious name where the
1596applicant is doing business as a sole
1603proprietorship, the business organization
1607must apply for a certificate of authority
1614through a qualifying agent and under the
1621fictitious name, if any.
162529. Subsection 489.126(2)(a), Florida Statutes, provides:
1631(2) A contractor who receives, as initial
1638payment, money totaling more than 10 percent
1645of the contract price for repair,
1651restoration, improvement, or construction to
1656residential real property must:
1660(a) Apply for permits necessary to do work
1668within 30 days after the date payment is
1676made. . . .
168030. Subsection 489.1425(1), Florida Statutes, provides:
1686(1) Any agreement or contract for repair,
1693restoration, improvement, or construction to
1698residential real property must contain a
1704written statement explaining the consumer's
1709rights under the recovery fund, except where
1716the value of all labor and materials does
1724not exceed $2,500. . . .
173131. The clear and convincing evidence established that
1739Mr. Roach was the primary qualifying agent for All Florida at
1750all materially relevant times. Subsection 489.1195(1)(a),
1756Florida Statutes, provides:
1759(1) A qualifying agent is a primary
1766qualifying agent unless he or she is the
1774secondary qualifying agent under this
1779section.
1780(a) All primary qualifying agents for a
1787business organization are jointly and
1792equally responsible for supervision of all
1798operations of the business organization; for
1804all field work at all sites; and for
1812financial matters, both for the organization
1818in general and for each specific job.
1825As the primary qualifying agent for All Florida, Mr. Roach is
1836jointly and equally responsible for the work that was performed
1846on the roofs of Mr. and Mrs. Pang and Ms. Perez.
1857Case No. 07-4376PL
186032. In regard to Case No. 07-4376PL, the Department
1869established by clear and convincing evidence that Mr. Roach
1878engaged in the business of contracting via the corporate entity
1888of All Florida without first obtaining a Certificate of
1897Authority, as required by Subsection 489.119(2), Florida
1904Statutes. In so doing, Mr. Roach violated Subsection
1912489.129(1)(i), Florida Statutes, by failing, in a material
1920respect, to comply with the provisions of Chapter 489, Part I,
1931Florida Statutes.
193333. The Department concedes in its Proposed Recommended
1941Order that Subsection 489.126(2)(a) cannot apply to Mr. Roach in
1951this instance. 2
195434. The Department established by clear and convincing
1962evidence that Mr. Roach violated Subsection 489.129(1)(j),
1969Florida Statutes. Mr. Roach abandoned work on the project, in
1979late September 2004, and never returned. The project remained
1988unfinished at that time, with scheduled repairs yet to be
1998completed.
199935. The Department established by clear and convincing
2007evidence that Mr. Roach violated Subsection 489.129(1)(o),
2014Florida Statutes, by failing to obtain the appropriate
2022permitting or inspection for the roofing project.
202936. The Department established by clear and convincing
2037evidence that Mr. Roach violated Subsection 489.129(1)(m),
2044Florida Statutes, through incompetency and misconduct in the
2052contracting work he performed for Mr. Pang. The record
2061evidences that Mr. Roach failed to pull the proper permits,
2071abandoned the project, and failed to set inspections.
2079Case No. 07-4377PL
208237. In regard to Case No. 07-4377PL, the Department
2091established by clear and convincing evidence that Mr. Roach
2100entered into a contract, exceeding $2,500, with Ms. Perez that
2111failed to notify her of her rights under the Construction
2121Industry Recovery Fund, as required by Subsection 489.1425(1),
2129Florida Statutes. In so doing, Mr. Roach violated Subsection
2138489.129(1)(i), Florida Statutes, by failing, in a material
2146respect, to comply with the provisions of Chapter 489, Part I,
2157Florida Statutes.
215938. The Department established by clear and convincing
2167evidence that Mr. Roach violated Subsection 489.129(1)(o),
2174Florida Statutes, by failing to obtain the appropriate
2182inspection of the roofing project.
218739. The Department has established that Mr. Roach has been
2197previously disciplined for violations under Chapter 489, Florida
2205Statutes, including, but not limited to, violations of
2213Subsections 489.129(1)(i), (m) and (o), Florida Statutes;
2220Subsection 489.119(3)(a), Florida Statutes; and Subsection
2226489.1425(1), Florida Statutes (Petitioner's Exhibit 14).
2232Florida Administrative Code Rule 61G4-17.003 provides:
2238(1) As used in this rule, a repeat
2246violation is any violation on which
2252disciplinary action is being taken where the
2259same licensee had previously had
2264disciplinary action taken against him or
2270received a letter of guidance in a prior
2278case; and said definition is to apply
2285regardless of whether the violations in the
2292present and prior disciplinary actions are
2298of the same or different subsections of the
2306disciplinary statutes.
2308(2) The penalty given in the above list for
2317repeat violations is intended to apply only
2324to situations where the repeat violation is
2331of a different subsection of Chapter 489,
2338F.S., than the first violation. Where, on
2345the other hand, the repeat violation is the
2353very same type of violation as the first
2361violation, the penalty set out above will
2368generally be increased over what is
2374otherwise shown for repeat violations in the
2381above list.
2383The increased administrative penalties for repeat offenders
2390provided in the guidelines of Rule 61G4-17.001, Florida
2398Administrative Code are applicable when recommending the
2405appropriate penalties for Mr. Roach. Moreover, pursuant to
2413Florida Administrative Code Rule 61G4-17.003(2), the violations
2420of Subsections 489.129(1)(m) and (o) may have their penalties
2429increased over and above those listed in Florida Administrative
2438Code Rule 61G4-17.001, as these are repeat violations of the
2448same subsection.
245040. The costs of investigation and prosecution, excluding
2458attorney time, in this consolidated case are to be assessed by
2469the board pursuant to Florida Administrative Code Rule 61G4-
247817.001(4), (2007), which provides:
2482(4) In addition, the board shall assess the
2490costs of investigation and prosecution,
2495excluding costs related to attorney time.
2501However, since no evidence was presented at the final hearing on
2512the Department's costs, no reasonable basis can be formed as to
2523what the costs may have been.
252941. The board is required to order Mr. Roach to make
2540restitution to Mr. and Mrs. Pang and Ms. Perez for the financial
2552losses to them suffered as a result of contracting with All
2563Florida to repair their roofs, pursuant to Florida
2571Administrative Code Rule 61G4-17.001(4), which provides:
2577(4) For any violation occurring after
2583October 1, 1998, the board shall order the
2591contractor to make restitution in the amount
2598of financial loss suffered by the consumer.
2605Such restitution shall be ordered in
2611addition to the penalties provided by these
2618guidelines upon demonstration of aggravating
2623factors set forth in the subsection 61G4-
263017.002(1), F.A.C., and to the extent that
2637such order does not contravene federal
2643bankruptcy law.
2645The evidence showed that All Florida was paid a total of
2656$32,250.00 by Mr. Pang for work that in the end had to be almost
2671entirely redone. After Mr. Roach fled the scene, later
2680corrective work performed on the roof totaled $32,750. It's
2690unclear what, if any, work of actual value was provided by
2701Mr. Roach to Mr. Pang, but assuming that what Mr. Pang
2712ultimately received was a $40,000 roof, then Mr. Pang's economic
2723loss is $25,000. As for Ms. Perez, the evidence showed that she
2736paid an additional $900 to another contractor to correct the
2746work Mr. Roach performed on her roof, so that is her economic
2758loss.
275942. Florida Administrative Code Rule 61G4-17.002 contains
2766the relevant aggravating and mitigating factors used in
2774determining whether restitution should be given to a wronged
2783consumer and provides,
2786Circumstances which may be considered for
2792the purposes of mitigation or aggravation of
2799penalty shall include, but are not limited
2806to, the following:
2809(1) Monetary or other damage to the
2816licensee's customer, in any way associated
2822with the violation, which damage the
2828licensee has not relieved, as of the time
2836the penalty is to be assessed. (This
2843provision shall not be given effect to the
2851extent it would contravene federal
2856bankruptcy law.)
2858(2) Actual job-site violations of building
2864codes, or conditions exhibiting gross
2869negligence, incompetence, or misconduct by
2874the licensee, which have not been corrected
2881as of the time the penalty is being
2889assessed.
2890(3) The danger to the public.
2896(4) The number of complaints filed against
2903the licensee.
2905(5) The length of time the licensee has
2913practiced.
2914(6) The actual damage, physical or
2920otherwise, to the licensee's customer.
2925(7) The deterrent effect of the penalty
2932imposed.
2933(8) The effect of the penalty upon the
2941licensee's livelihood.
2943(9) Any efforts at rehabilitation.
2948(10) Any other mitigating or aggravating
2954circumstances.
2955Of the above, factors (1), (2), and (4) are the most applicable
2967to the facts of these cases. Both the Pangs and Ms. Perez
2979suffered unrelieved money damages. Also, Mr. Pang was issued a
2989Notice of Violation for a lack of permitting on the roof work
3001conducted by Mr. Roach that doubled the fee for obtaining the
3012permit in the future.
3016RECOMMENDATION
3017Based on the foregoing Findings of Fact and Conclusions of
3027Law, it is
3030RECOMMENDED that a final order be entered whose outcome is
3040the following:
30421. That in Case No. 07-4376PL Respondent violated
30502. Dismiss Count II of the Administrative Complaint in
3059Case No. 07-4376PL;
30623. In Case No. 07-4376PL, imposing an administrative fine
3071of $1,000.00 for the violation of Subsection 489.129(1)(i),
3080Florida Statutes; imposing an administrative fine of $5,000.00
3089for the violation of Subsection 489.129(1)(j), Florida Statutes;
3097imposing an administrative fine of $2,500 for the violation of
3108Subsection 489.129(1)(o), Florida Statutes; no administrative
3114fine is recommended for the violation of 489.129(1)(m), Florida
3123Statutes, because the violation is included in the violations of
3133Subsections 489.129(1)(j) and (o), Florida Statutes;
31394. That in Case No. 07-4377PL, Respondent violated
3147Subsections 489.129(1)(i) and (o), Florida Statutes;
31535. In Case No. 07-4377PL, imposing an administrative fine
3162of $1,000 for the violation of Subsection 489.129(1)(i), Florida
3172Statutes; imposing an administrative fine of $2,500 for the
3182violation of Subsection 489.129(1)(o), Florida Statutes;
31886. Requiring Respondent to make Restitution to Mr. and
3197Mrs. Pang in the amount of $25,000;
32057. Requiring Respondent to make Restitution to Ms. Perez
3214in the amount of $900; and
32208. Revoking Respondent's contractor license.
3225DONE AND ENTERED this 31st day of March, 2008, in
3235Tallahassee, Leon County, Florida.
3239S
3240SUSAN B. HARRELL
3243Administrative Law Judge
3246Division of Administrative Hearings
3250The DeSoto Building
32531230 Apalachee Parkway
3256Tallahassee, Florida 32399-3060
3259(850) 488-9675 SUNCOM 278-9675
3263Fax Filing (850) 921-6847
3267www.doah.state.fl.us
3268Filed with the Clerk of the
3274Division of Administrative Hearings
3278this 31st day of March, 2008.
3284ENDNOTES
32851/ All references to Florida Statutes and Florida Administrative
3294Code are to 2004, unless otherwise indicated.
33012/ Subsection 489.126(a) applies only to residential buildings,
3309whereas this roofing repair was performed on a commercial
3318building.
3319COPIES FURNISHED :
3322Collin W. L. Mcleod, Esquire
3327Wright, Fulford, Moorhead & Brown, P.A.
3333145 North Magnolia Avenue
3337Orlando, Florida 32803
3340Greg Alan Roach
3343Post Office Box 345
3347Orange Springs, Florida 32182
3351Ned Luczynski, General Counsel
3355Department of Business and
3359Professional Regulation
3361Northwood Centre
33631940 North Monroe Street
3367Tallahassee, Florida 32399-0792
3370G. W. Harrell, Executive Director
3375Construction Industry Licensing Board
3379Department of Business and
3383Professional Regulation
3385Northwood Centre
33871940 North Monroe Street
3391Tallahassee, Florida 32399-0792
3394NOTICE OF RIGHT TO SUBMIT EXCEPTIONS
3400All parties have the right to submit written exceptions within
341015 days from the date of this Recommended Order. Any exceptions
3421to this Recommended Order should be filed with the agency that
3432will issue the Final Order in this case.
- Date
- Proceedings
- PDF:
- Date: 03/31/2008
- Proceedings: Recommended Order cover letter identifying the hearing record referred to the Agency.
- Date: 02/26/2008
- Proceedings: Transcript filed.
- Date: 02/05/2008
- Proceedings: CASE STATUS: Hearing Held.
- PDF:
- Date: 01/25/2008
- Proceedings: Notice of Telephonic Motion Hearing (motion hearing set for February 1, 2008; 8:30 a.m.).
- PDF:
- Date: 01/16/2008
- Proceedings: Petitioner`s Motion for Summary Final Order, or in the Alternative Petitioner`s Motion to Relinquish Jurisdiction filed.
- PDF:
- Date: 11/21/2007
- Proceedings: Order Granting Continuance and Re-scheduling Hearing (hearing set for February 5, 2008; 9:00 a.m.; Orlando, FL).
Case Information
- Judge:
- SUSAN BELYEU KIRKLAND
- Date Filed:
- 09/20/2007
- Date Assignment:
- 10/02/2007
- Last Docket Entry:
- 11/26/2008
- Location:
- Orlando, Florida
- District:
- Middle
- Agency:
- ADOPTED IN TOTO
- Suffix:
- PL
Counsels
-
Collin W. L. McLeod, Esquire
Address of Record -
Greg Alan Roach
Address of Record -
Greg Alan Roach
Address of Record