08-000721 Department Of Business And Professional Regulation, Construction Industry Licensing Board vs. Jeffrey J. Clark, D/B/A Jv Clark General Contractors, Inc. Status: Closed Recommended Order on Thursday, July 10, 2008.

Summary: Respondent signed a contract without providing required information, failed to complete a job for which he received payment, and did not address a failed inspection. Held: Respondent`s license is suspended until he pays a $2000 fine and makes restitution.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF BUSINESS AND )

PROFESSIONAL REGULATION, )

CONSTRUCTION INDUSTRY LICENSING )

BOARD, )

)

Petitioner, )

)

vs. ) Case No. 08-0721

)

JEFFREY J. CLARK, d/b/a JV CLARK GENERAL CONTRACTORS, )

INC., )

)

)

Respondent. )

)

RECOMMENDED ORDER

This cause came on for final hearing before Harry L.

Hooper, Administrative Law Judge with the Division of

Administrative Hearings, on June 4, 2008, in Daytona Beach,

Florida.

APPEARANCES

For Petitioner: Arthur Barksdale, IV, Esquire

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

145 North Magnolia Avenue

Orlando, Florida 32801

For Respondent: Jeffrey J. Clark, pro se

JV Clark General Contractors, Inc.

2027 South Ridgewood Avenue

Edgewater, Florida 32132

STATEMENT OF THE ISSUE

The issue is whether disciplinary action should be taken

against the contracting licenses held by Respondent, Jeffrey J.

Clark, for the reasons stated in the Administrative Complaint.

PRELIMINARY STATEMENT

Petitioner, Department of Business and Professional

Regulation (Department), filed an Administrative Complaint

before the Construction Industry Licensing Board (Board),

against Respondent, Jeffrey J. Clark (Mr. Clark), on

September 19, 2007. The Administrative Complaint addressed

Mr. Clark's license as a certified general contractor and as a

certified roofing contractor, and as "qualifying agent" for JV

Clark General Contractors, Inc.

The Administrative Complaint alleged as follows:

Count I: that Mr. Clark signed a contract that did not

provide a registration or certification number as is required by

Subsection 489.119(6)(b), Florida Statutes;

Count II: that Mr. Clark failed to ensure that a contract

he entered into for repair, restoration, improvement, or

construction to residential real property contained a written

statement explaining the consumer's rights under the

Construction Industries Recovery Fund (Recovery Fund) as is

required by Subsection 489.1425(1), Florida Statutes;

Count III: that Mr. Clark engaged in financial

mismanagement as described in Subsection 489.129(1)(g)2.,

Florida Statutes;

Count IV: that Mr. Clark abandoned a construction project,

an act that is prohibited by Subsection 489.129(1)(j), Florida

Statutes;

Count V: that Mr. Clark failed to obtain a final

inspection on a project as he was required to do under

Subsection 489.129(1)(o), Florida Statutes; and

Count VI: that Mr. Clark committed incompetence or

misconduct in the practice of contracting as described in

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

Mr. Clark filed an Election of Rights on October 8, 2007,

that contested the allegations and demanded a hearing. The

matter was forwarded to the Division of Administrative Hearings

and was filed on February 13, 2008. The final hearing was set

for April 15, 2008, in Daytona Beach, Florida. Because of a

motion for continuance filed by Petitioner and a conflict

experienced by the Administrative Law Judge, the hearing was

ultimately held on June 4, 2008.

At the hearing, the Department presented the testimony of

three witnesses and offered 14 exhibits. All of the

Department's exhibits were accepted into evidence. Mr. Clark

testified and had one exhibit accepted into evidence.

The one-volume Transcript was filed June 16, 2008. The

Department timely filed a Proposed Recommended Order on June 26,

2008, and it was considered in the preparation of this

Recommended Order. Mr. Clark did not file a proposed

recommended order.

References to statutes are to Florida Statutes (2004),

unless otherwise noted.

FINDINGS OF FACT

1. Mr. Clark, doing business as JV Clark General

Contractors, Inc., is a Florida State certified general

contractor with license number CGC 061010, and his license as of

May 2, 2008, was "current, active." He has held this license

since November 16, 1999, and there is no evidence of record that

any license held by him has been the subject of disciplinary

proceedings. In the same capacity Mr. Clark is a Florida State

certified roofing contractor, with license number CCC 1327256

and his license as of May 5, 2008, was "current, active."

2. JV Clark General Contractors, Inc., has a Certificate

of Authority as a contractor qualified business. Its license

number is QB 0018745, and as of May 5, 2008, the license was

"current, active." Mr. Clark is the "qualifying agent" for JV

Clark General Contractors, Inc.

3. Mr. Clark is the sole owner and is the registered agent

of a business named the Affordable Door Company, Inc.

(Affordable Door), which has an address of 2811 South Nova Road,

Daytona Beach, Florida.

4. The Department is the state agency charged with

providing investigation and prosecutorial services to the Board.

5. On or about August 20, 2004, Affordable Door entered

into a written contract with the Sand Dollar Condominium (Sand

Dollar). The contract provided that Affordable Door would sell

13 fire doors to Sand Dollar and thereafter would install the

doors. In entering into this agreement, Affordable Door was

engaged in contracting, as that term is used in Subsection

489.105(6), Florida Statutes.

6. The contract did not include Mr. Clark's license number

and did not contain a written notification of the Recovery Fund.

7. The contract required Sand Dollar to pay Affordable

Door a total of $13,374.40. On August 28, 2004, Sand Dollar

paid $2,769 on the contract. On October 12, 2004, Sand Dollar

paid $4,430.40 on the contract, and on February 1, 2005, Sand

Dollar paid the balance.

8. On December 6, 2004, Mr. Clark applied to the City of

Daytona Beach Shores Building Department for a permit to perform

the work contracted by Sand Dollar. The building permit

application for the Sand Dollar job was made by JV Clark General

Contractors, Inc., and listed an address of 2811 South Nova

Road, Daytona Beach, Florida.

9. Mr. Clark's license number, CGC 061010, was provided on

the permit application. The permit, number BP2005-41, was

issued on December 20, 2004. The permit called for replacing

stair doors and frames within Sand Dollar. The permit was

signed by Mr. Clark and was notarized.

10. The manufacturer of the doors to be installed required

that the doors have their jams filled with grout in order to

meet standards set forth in the Daytona Beach Shores Building

Code. However, the grouting was not accomplished. As a result,

when Daytona Beach Shores Building Inspector Steve Edmunds

inspected the job, he found the work to be deficient.

11. Marlene Wuester is the association manager for Sand

Dollar. She is responsible for the operation of the 57-unit

building. When Ms. Wuester learned that the doors had failed

the inspection, she attempted to contact Mr. Clark. She sent a

letter dated April 20, 2006, to Mr. Clark at the 2811 South Nova

Road address informing him that if he did not cause the doors to

meet the required standards that Sand Dollar would hire another

contractor to do it, and that Sand Dollar would thereafter seek

damages.

12. Mr. Clark did not respond to the letter and did not

otherwise respond to Ms. Wuester's efforts to contact him.

Ultimately, Sand Dollar paid Flores-Hager and Associates, Inc.,

$950.00 and General Mechanical Corporation $3,900.00 to bring

the doors into compliance with the applicable code.

13. Mr. Clark testified that Affordable Door was managed

by Dave Randolph and that generally the company sold doors to

other contractors. The contract with Sand Dollar was

exceptional and even though Mr. Clark was the permittee, the

installer was a man named Jim St. Louis.

14. Mr. Clark asserted that he did not receive

communications from Sand Dollar, and therefore could not respond

to Sand Dollar, because his business moved from the 2811 South

Nova Road address. However, as the licensed contractor, it was

Mr. Clark's duty to see that the job was completed in accordance

with the applicable building code.

CONCLUSIONS OF LAW

15. The Division of Administrative Hearings has

jurisdiction over the subject matter of and the parties to this

proceeding. § 120.57(1), Fla. Stat. (2007).

16. The Department has the burden of proving by clear and

convincing evidence the allegations against Mr. Clark alleged in

the Administrative Complaint. Department of Banking and Finance

v. Osborne Stern and Co. , 670 So. 2d 932 (Fla. 1996) and Ferris

v. Turlington , 510 So. 2d 292 (Fla. 1987).

17. Subsection 489.129(1), Florida Statutes, provides in

pertinent part, as follows:

§ 489.129. Disciplinary proceedings

(1) The board may take any of the

following actions against any

certificateholder or registrant: place on

probation or reprimand the licensee, revoke,

suspend, or deny the issuance or renewal of

the certificate, registration, or

certificate of authority, require financial

restitution to a consumer for financial harm

directly related to a violation of a

provision of this part, impose an

administrative fine not to exceed $10,000

per violation, require continuing education,

or assess costs associated with

investigation and prosecution, if the

contractor, financially responsible officer,

or business organization for which the

contractor is a primary qualifying agent, a

financially responsible officer, or a

secondary qualifying agent responsible under

s. 489.1195 is found guilty of any of the

following acts:

* * *

(g) Committing mismanagement or misconduct

in the practice of contracting that causes

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 contract

or refunds the excess funds within 30 days

after the date the job is abandoned; or

* * *

(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.

18. Subsection 489.119(6)(b), Florida Statutes, provides

in part as follows:

§ 489.119. Business organizations;

qualifying agents

* * *

(6)(b) The registration or certification

number of each contractor or certificate of

authority number for each business

organization shall appear in each offer of

services, business proposal, bid, contract,

or advertisement, regardless of medium, as

defined by board rule, used by that

contractor or business organization in the

practice of contracting.

19. Subsection 489.1425(1), Florida Statutes, provides in

part as follows:

§ 489.1425. Duty of contractor to notify

residential property owner of recovery fund

(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. The

written statement must be substantially in

the following form:

FLORIDA HOMEOWNERS' CONSTRUCTION

RECOVERY FUND

PAYMENT MAY BE AVAILABLE FROM THE

FLORIDA HOMEOWNERS' CONSTRUCTION

RECOVERY FUND IF YOU LOSE MONEY ON A

PROJECT PERFORMED UNDER CONTRACT, WHERE

THE LOSS RESULTS FROM SPECIFIED

VIOLATIONS OF FLORIDA LAW BY A LICENSED

CONTRACTOR. FOR INFORMATION ABOUT THE

RECOVERY FUND AND FILING A CLAIM,

CONTACT THE FLORIDA CONSTRUCTION

INDUSTRY LICENSING BOARD AT THE

FOLLOWING TELEPHONE NUMBER AND ADDRESS:

The statement shall be immediately followed

by the board's address and telephone number

as established by board rule.

20. Mr. Clark violated Subsection 489.129(1)(i), Florida

Statutes, as alleged in Count I, by failing to have his license

number appear on the contract between Affordable Doors and Sand

Dollar, as he was required to do by Subsection 489.119(6)(b),

Florida Statutes.

21. Mr. Clark violated Subsection 489.129(1)(i), Florida

Statutes, as alleged in Count II, by failing to have the

language appear on the contract between Affordable Doors and

Sand Dollar, which is required by Subsection 489.1425(1),

Florida Statutes.

22. Mr. Clark violated Subsection 489.129(1)(g)2., Florida

Statutes, as alleged by Count III, by abandoning the job with

Sand Dollar after he had been paid the contract price, which is

financial mismanagement.

23. Mr. Clark violated Subsection 489.129(1)(j), Florida

Statutes, as alleged by Count IV by abandoning the job, by

failing to resolve the issues raised by the final inspection.

24. Although it was alleged by Count V that Mr. Clark

violated Subsection 489.129(1)(o), Florida Statutes, by

proceeding on a job without obtaining applicable local building

department permits and inspections, the alleged subsection does

not address the failure to obtain a permit. Accordingly, Count

V should be dismissed.

25. Mr. Clark violated Subsection 489.129(1)(m), Florida

Statutes, as alleged by Count VI. His work in installing fire

doors in accordance with the building permit at the Sand Dollar

site was not sufficient to be certified by the Daytona Shores

Building Department thereby causing financial harm to a

customer.

26. Florida Administrative Code Rule 61G4-17.002 provides

matters to be considered in aggravation and mitigation as

follows:

61G4-17.002 Aggravating and Mitigating

Circumstances.

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.

27. Applying the facts of this case to Florida

Administrative Code Rule 61G4-17.002, it is determined that

Mr. Clark has had a license since November 16, 1999, and he has

not been disciplined by the Board. On the other hand, his

transgressions are serious in that improperly installed fire

doors pose a danger to the public, and his failure to complete

the contract caused a monetary loss to the Sand Dollar.

Balancing these competing considerations, results in a

determination that the penalty should be in the "normal" range.

28. Florida Administrative Code Rule 61G4-17.001 provides

in part as follows:

61G4-17.001 Normal Penalty Ranges.

(1) The following guidelines shall be

used in disciplinary cases, absent

aggravating or mitigating circumstances and

subject to other provisions of this chapter.

* * *

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

Mismanagement or misconduct causing

financial harm to the customer.

FIRST OFFENSE

PENALTY RANGE

MINIMUM MAXIMUM

$1,500 fine and/or $5,000 fine

probation, or and/or

suspension probation, or

suspension

* * *

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

Failing in any material respect to comply

with the provisions of Part I of Chapter

489, F.S.

PENALTY RANGE

MINIMUM MAXIMUM

Use penalty herein Use penalty herein

listed for the listed for the

violation most closely violation most

resembling the act closely resembling

underlying the local the act underlying

discipline; the local

discipline

* * *

4. Section 489.1425, F.S.: Failure to

notify residential property owner of

recovery fund.

FIRST OFFENSE

PENALTY RANGE

MINIMUM MAXIMUM

$250 fine $500 fine

* * *

9. Section 489.119(6)(b), F.S.: license

number not appearing in advertisement.

FIRST OFFENSE

PENALTY RANGE

MINIMUM MAXIMUM

$250 fine $1,000 fine

* * *

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

Abandonment.

FIRST OFFENSE

PENALTY RANGE

MINIMUM MAXIMUM

$2,500 fine and/or $7,500 fine

probation, or and/or

suspension 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.

FIRST OFFENSE

PENALTY RANGE

MINIMUM MAXIMUM

$1,000 fine and/or $2,500 fine

probation, or and/or

suspension probation, or

suspension

* * *

4. The following guidelines shall apply

to cases involving misconduct or

incompetency in the practice of contracting,

absent aggravating or mitigating

circumstances:

(n) Section 489.129(1)(n), F. S.: Being

found guilty of gross negligence, repeated

negligence, or negligence resulting in a

significant danger to life or property.

FIRST OFFENSE

PENALTY RANGE

MINIMUM MAXIMUM

$1,000 fine $3,000 fine

and probation,

suspension or

revocation

* * *

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

Proceeding on any job without obtaining

applicable local building department permits

and/or inspections.

* * *

2. Failure to obtain inspections.

FIRST OFFENSE

PENALTY RANGE

MINIMUM MAXIMUM

$250 $1,000 fine

and/or

probation, or

suspension

* * *

(5) In addition, the board shall order the

contractor to make restitution in the amount

of financial loss suffered by the consumer

to the extent that such order does not

contravene federal bankruptcy law.

RECOMMENDATION

Based upon the Findings of Fact and Conclusions of Law, it

is

RECOMMENDED that the Florida Construction Industry

Licensing Board enter an order finding that Jeffrey J. Clark,

d/b/a JV Clark General Contractors, Inc., is guilty of Counts I

through IV and Count VI, and that licenses numbered CGC 061010,

CCC 1327256, and QB 0018745 be suspended until such time as

Jeffrey J. Clark, d/b/a JV Clark General Contractors, Inc., pays

a fine in the amount of $2,000.00 and makes restitution to the

Sand Dollar Condominium Association in the amount of $4,850.00.

DONE AND ENTERED this 10th day of July, 2008, in

Tallahassee, Leon County, Florida.

S

HARRY L. HOOPER

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 10th day of July, 2008.

COPIES FURNISHED :

Jeffrey J. Clark

JV Clark General Contractors, Inc.

2027 South Ridgewood Avenue

Edgewater, Florida 32132

Arthur Barksdale, IV, Esquire

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

145 North Magnolia Avenue

Orlando, Florida 32801

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.