09-001574 Department Of Business And Professional Regulation, Construction Industry Licensing Board vs. Jeffrey Luis Carrasco, D/B/A Jcsi Certified Roofing Contractors Status: Closed Recommended Order on Friday, August 28, 2009.

Summary: Petitioner proved by clear and convincing evidence that Respondent violated Section 489.129(i)(g)2., (i) and (m), Florida Statutes. All other charges should be dismissed.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF BUSINESS AND )

PROFESSIONAL REGULATION, )

CONSTRUCTION INDUSTRY )

LICENSING BOARD, )

)

Petitioner, )

)

vs. ) Case No. 09-1574

)

JEFFREY LUIS CARRASCO, )

d/b/a JCSI CERTIFIED )

ROOFING CONTRACTORS, )

)

Respondent. )

)

RECOMMENDED ORDER

On July 15, 2009, a duly-noticed hearing was held in

Bunnell, Florida, before Lisa Shearer Nelson, an Administrative

Law Judge assigned by the Division of Administrative Hearings.

APPEARANCES

For Petitioner: Kyle Christopher, Esquire

Assistant General Counsel

Department of Business and

Professional Regulation

1940 North Monroe Street

Tallahassee, Florida 32399

For Respondent: Jeffrey Luis Carrasco, pro se

JCSI Certified Roofing Contractors

4600 East Moody Boulevard

Building 16, Apartment 1

Bunnell, Florida 32110

STATEMENT OF THE ISSUES

The issues to be determined are whether Respondent violated

the charged provisions of Section 489.129, Florida Statutes

(2006), and if so, what penalty should be imposed for his

conduct?

PRELIMINARY STATEMENT

On April 25, 2008, the Department of Business and

Professional Regulation (Department or DBPR) filed a six-count

Administrative Complaint against Respondent alleging several

violations of Chapter 489, Florida Statutes, in connection with a

contract Respondent or his company, JCSI Certified Roofing

Contractors, undertook to install a roof for John and Christine

Shields. Specifically, the Administrative Complaint charged

Respondent with violating Section 489.129(1)(i) by failing to

include his license or certificate of authority number on the

contract, in violation of Section 489.119(6)(b), Florida Statutes

(Count I); violating Section 489.120(1)(i), Florida Statutes, by

failing to apply for a permit within 30 days of receiving more

than ten percent of the contract price as an initial payment, in

violation of Section 489.126(2), Florida Statutes (Count II);

violating Section 489.129(1)(g)2., Florida Statutes, by

committing mismanagement or misconduct in the practice of

contracting that causes financial harm to a customer (Count III);

violating Section 489.129(1)(j), Florida Statutes, by abandoning

a construction project (Count IV); violating Section

489.129(1)(o), Florida Statutes, by proceeding on any job without

obtaining applicable local building department permits or

inspections (Count V); and violating Section 489.129(1)(m),

Florida Statutes, by committing incompetency or mismanagement in

the practice of contracting (Count VI). Respondent disputed the

allegations in the Administrative Complaint, and the case was

referred to the Division of Administrative Hearings on March 26,

2009, for assignment of an administrative law judge.

On April 16, 2009, the matter was noticed for hearing to be

conducted June 12, 2009. At the request of the Department, the

matter was rescheduled for July 15, 2009, and proceeded as

scheduled. Petitioner presented the testimony of John Shields

and Christine Shields, and Petitioner's Exhibits A-E were

admitted into evidence. Respondent Jeffrey Carrasco testified on

his own behalf, and Respondent's Exhibits 1-2 were admitted.

A Transcript of the proceedings was filed with the Division

on July 29, 2009, and the Department filed its Proposed

Recommended Order August 10, 2009. On August 18, 2009,

Respondent filed a document entitled Unilateral Response to

Initial Order that appears to be a description of the evidence

submitted at hearing. Both documents have been carefully

considered in the preparation of this Recommended Order. Unless

otherwise indicated, all references to Florida Statutes are to

the codification in effect at the time the events occurred.

FINDINGS OF FACT

1. Respondent is and has been, at all times material to the

allegations in the Administrative Complaint, a certified roofing

contractor in the State of Florida, having been issued license

number CCC 132557.

2. At all times material to the allegations of the

Administrative Complaint, Respondent was the primary qualifying

agent for JCSI Certified Roofing Contractors (JCSI), which has

been issued certificate of authority number QB 47568.

3. On or about April 7, 2006, Respondent, doing business as

JCSI, entered into a contract with Mr. and Mrs. John Shields to

install a stone coated steel shingle roof at 518 Ponte Vedra

Boulevard, in Ponte Vedra Beach, Florida. The contract amount

was $50,850.00, and the contract included the following work:

Scope of Work: Steel roof to be mechanically

fastened on a single ply system and consist

[sic] of the following:

1. Peel & Stick base sheet (same as Ice and

water Shield), stone coated drip edge.

2. Mechanically fasten roof panels according

to wind chart specifications.

3. Matching stone coated trim.

4. All flashing to be minimum 26 gauge.

Vents, valley metals, and flashing as

required.

5. Stone coated steel roof, color selection

by Client.

6. Steel roof to be installed to

manufacturers wind chart specifications.

7. All work to be done in a workmanlike

manner with complete job cleanup of roofing

debris placed in on-site container provided

by Owner/Contractor.

4. The draw schedule in the contract was listed as follows:

Deposit $5,000.00 at signing (dry-

in);$15,000.00 order materials;

$15,600.00 At beginning of production,

Balance at completion.

5. The contract did not contain Respondent's license number

or the certificate of authority number of JCSI Certified Roofing

Contractors.

6. The Shields paid the initial deposit of $5,000.00 upon

signing the contract. Within a couple of weeks, Respondent

performed the dry-in for the roof.

7. On August 17, 2006, the Shields paid an additional

$15,000.00 with check number 1461, which was deposited into

JCSI's account August 18, 2006. In total, the Shields paid

$20,000.00 toward the contract price.

8. Respondent also installed flashing for the project,

although the timing of this part of the job is unclear from the

record. However, from testimony presented, it is found that the

flashing was installed sometime in August 2006, in the two weeks

before or after the August 17, 2006 payment. No other work was

performed on the job by Respondent or JCSI.

9. Respondent ordered materials for the roof from Gerard

Roofing in June 2006. However, he did not receive the materials

from the company because his credit with Gerard was over-

extended. He claims that he reported this to the Shields and

suggested that they pay for the materials directly and deduct

that amount from the contract price, and he would finish the job.

10. The order form from Gerard Roofing Technologies

indicates that the roofing materials ordered in June 2006 totaled

$21,570.11. Assuming that the order form represented materials

for the Shields job only, had the Shields agreed to Respondent's

proposed alteration in the contract, they would have paid

$41,570.11 toward the completion of the roof at a time when the

only work performed was the initial dry-in and possibly the

flashing installation. This would have represented 81.75% of the

contract price. As it is, the Shields had paid 39.33% of the

contract price already.

11. The Shields did not agree with Respondent's proposed

alteration of the contract. By February 2007, no additional work

had been performed on the roof and Respondent did not re-order

the roofing materials. At that point, Mr. Shields terminated the

contract.

12. The investigative costs incurred by the Department, not

including those associated with an attorney's time, are $288.22.

CONCLUSIONS OF LAW

13. The Division of Administrative Hearings has

jurisdiction over the subject matter and the parties to this

action in accordance with Sections 120.569 and 120.57(1), Florida

Statutes (2009).

14. This is a disciplinary action by Petitioner in which

Petitioner seeks to discipline Respondent's certification as a

roofer and his certificate of authority as qualifying agent for

his roofing company. Petitioner bears the burden of proof to

demonstrate the allegations in the Administrative Complaint by

clear and convincing evidence. Department of Banking and Finance

v. Osborne Sterne & Co. , 670 So. 2d 932 (Fla. 1996); Ferris v.

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

15. Clear and convincing evidence:

[R]equires that the evidence must be found to

be credible; the facts to which the witnesses

testify must be distinctly remembered; the

testimony must be precise and lacking in

confusion as to the facts in issue. The

evidence must be of such a weight that it

produces in the mind of the trier of fact a

firm belief or conviction, without hesitancy,

as to the truth of the allegations sought to

be established.

In re Henson , 913 So. 2d 579, 590 (Fla. 2005), quoting Slomowitz

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

16. The Administrative Complaint charges Respondent with

violating several subsections of Section 489.129, Florida

Statutes, which states in pertinent part:

(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; . . .

* * *

(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.

17. Respondent is and was the primary qualifying agent for

JCSI during all the times material to this proceeding.

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.

Accordingly, Respondent was responsible for the supervisions of

all operations, including financial matters, related to the

contract entered with the Shields.

18. Count I of the Administrative Complaint charges

Respondent with violating Section 489.129(1)(j), Florida

Statutes, by virtue of violating Section 489.119(6)(b), Florida

Statutes, which requires:

(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. The contract signed by both parties does not include

either Respondent's roofing contractor's license number or JCSI's

certificate of authority number. Respondent has violated Section

489.119(6)(b), Florida Statutes, and therefore has violated

Section 489.129(1)(i), Florida Statutes. The Department has

therefore demonstrated by clear and convincing evidence the

charges in Count I of the Administrative Complaint.

20. The Department announced at hearing that it was not

pursuing Count II of the Administrative Complaint. No further

discussion of this Count is necessary, and Count II should be

dismissed.

21. Count III of the Administrative Complaint charges

Respondent with violating Section 489.129(1)(g)2., Florida

Statutes. This charge of financial management turns on whether

Respondent abandoned the job for which he contracted, and if he

has abandoned the job, whether the percentage of completion is

less than the percentage of the total contract price paid to the

contractor at the time of the abandonment.

22. Here, Respondent did not complete any work on the job

for a period of over five months. The evidence demonstrates

that, at the time John Shields terminated his services,

Respondent had received approximately 40 percent of the contract

price, and had completed the dry-in and the flashing work. What

is not clear, however, is what percentage of the total job the

dry-in and flashing work would represent. While it appears that

the dry-in and flashing work would represent less than 40 percent

of the total job, no evidence was presented to support this

supposition. Without that evidence, it cannot be determined that

Respondent had received more funds than represented by the work

accomplished. Compare Department of Business and Professional

Regulation v. Raymond Spencer , No. 08-226 (DOAH Apr. 18, 2008).

Under these circumstances, the Department has not proven a

violation of Section 489.129(1)(g)2., Florida Statutes, by clear

and convincing evidence. Accordingly, Count III should be

dismissed.

23. Count IV alleges that Respondent abandoned the

construction project in violation of Section 489.129(1)(j),

Florida Statutes. This subjection provides that "a project may

be presumed to be abandoned after 90 days if the contractor . . .

fails to perform work without just cause for 90 days."

Respondent denied that he abandoned the job, and tried to lay the

delays in construction at the feet of Mrs. Shields. He also

points to his ultimate termination as the basis for stopping work

on the project.

24. Respondent's testimony is simply not credible. First,

while he submitted documentation from McElroy Metal, Inc.

(Respondent's Exhibit 1), his assertions both at hearing and in

his post-hearing submittal regarding McElroy Metal are

contradicted by the documentation itself. Respondent stated that

the McElroy Metal documents represented the flashings that he

ordered prior to receiving the check when the Shields were ready

for their flashings. Respondent insisted at hearing and in his

post-hearing submittal that these documents represented flashing

materials ordered and paid for before he received the August

payment for $15,000. The documents, which do not reference the

Shields, indicate that they related to an order placed

October 12, 2006, well after the August 17, 2006 payment, for

high-side tie-in trim. Further, while Respondent insisted that

payments made were not necessarily meant for ordering materials

and that the payment schedule was meant to be more fluid, his

assertions are inconsistent with the language of the contract

itself.

25. Similarly, the order form for Gerard Roofing

Technologies indicates only that he ordered materials for the

Shields' roof in June. While he testified that he had a cash

flow problem and could not obtain the materials when ordered, he

did not explain why he could not order them when paid an

additional $15,000 in August. Nor did he give any explanation

why he could not pay for the materials at some time later, before

Mr. Shields terminated his contract. The evidence is clear and

convincing that Respondent did not work on the project after

August 2006, for a period exceeding 90 days, and that

Respondent's credit problems do not constitute just cause for the

delay. The Department has demonstrated a violation of Section

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

Administrative Complaint.

26. The Department announced at hearing that it was not

pursuing the charge in Count V, and no evidence was submitted in

relation to the charge. Therefore, no further discussion of

Count V is necessary and it should be dismissed.

27. Count VI charges a violation of Section 489.129(1)(m),

Florida Statutes, alleging that Respondent committed incompetency

or misconduct in the practice of contracting. The evidence is

clear and convincing that Respondent received payment of $15,000

specifically identified for ordering materials and did not order

materials with these funds, and that he did not complete the job

he contracted to complete. Clear and convincing evidence has

been presented to prove a violation of Count VI.

28. In summary, the Department has proven by clear and

convincing evidence the violations charged in Counts I, IV and VI

of the Administrative Complaint. It chose not to pursue Counts

II and V, and Count III was not demonstrated by clear and

convincing evidence.

29. Section 455.2273(2), Florida Statutes, requires

professional licensing boards within the Department to create

disciplinary guidelines that "specify a meaningful range of

designated penalties based upon the severity and repetition of

specific offenses." Administrative law judges are required to

recommend penalties consistent with the guidelines, and explain

in writing any aggravating or mitigating circumstances upon which

a penalty recommendation is based. § 455.2273(5), Fla. Stat.

30. Florida Administrative Code Rule 61G4-17.001 provides

the range of penalties for the violations of Chapter 489, Florida

Statutes. For a first violation of Section 489.129(1)(i),

Florida Statutes, by virtue of violating Section 489.119(6)(b)

(Count I), Florida Statutes, the recommended penalty is a $250

fine. For a first violation of Section 489.129(1)(j), Florida

Statutes, (Count IV), the recommended penalty range is a $2,500

fine and/or probation or suspension of the license. 1/ For a

first violation of Section 489.129(1)(m)(Count VI), the

recommended penalty range is a $1,000 fine and/or probation or

suspension. The Disciplinary Guidelines also require that "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."

Fla. Admin. Code R. 61G4-17.001(5). While the Department refers

to repeat violations, there was no evidence presented of prior

disciplinary action against Respondent.

RECOMMENDATION

Upon consideration of the facts found and conclusions of law

reached, it is

RECOMMENDED that the Construction Industry Licensing Board

enter a Final Order finding Respondent guilty of violating

Subsections 489.129(1)(i), (j) and (m), Florida Statutes, as

charged in Counts I, IV and VI of the Administrative Complaint;

finding that Respondent did not violate Subsections

489.129(1)(g)2., (i) and (o), Florida Statutes, as charged in

Counts II, III and V of the Administrative Complaint and

dismissing those counts; imposing an administrative fine of $250

for Count I; imposing an administrative fine of $2,500 and

placing Respondent's license on probation for a period of four

years for Count IV; imposing an administrative fine of $2,500 for

Count VI; requiring restitution in the amount of $15,000.00 to

John and Christine Shields 2/ in accordance with Florida

Administrative Code Rule 61G4-17.001(5); and imposing costs in

the amount of $288.22.

DONE AND ENTERED this 28th day of August, 2009, in

Tallahassee, Leon County, Florida.

S

LISA SHEARER NELSON

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 28th day of August, 2009.

ENDNOTES

1/ Petitioner indicates in its Proposed Recommended Order that

the penalty for a first-time violation of Section 489.129(1)(j),

Florida Statutes, is a $5,000 fine and/or probation or revocation.

However, the copy of Rule 61G4-17.001 available on the Florida

Administrative Code website indicates that the fine for a first

time offense is $2,500.

2/ Petitioner suggested restitution in the amount of $14,268.81

to John and Christine Shields, giving Respondent credit for the

cost of the flashing material purportedly paid to McElroy Metal.

However, as noted above, Respondent's Exhibit 1 reflects an order

date well after all testimony indicated all work on the Shields

home had stopped. Further, the exhibit does not reference the

Shields job. The Shields had given an initial $5,000 to

Respondent at the commencement of the job. The undersigned

declines to recommend giving credit for materials ordered after

all work on the job had stopped.

COPIES FURNISHED:

Kyle Christopher, Esquire

Department of Business and

Professional Regulation

1940 North Monroe Street, Suite 42

Tallahassee, Florida 32399-2202

Jeffrey Luis Carrasco

JCSI Certified Roofing Contractors

4600 East Moody Boulevard

Building 16, Apartment 1

Bunnell, Florida 32110

G. W. Harrell, Executive Director

Construction Industry Licensing Board

Department of Business and

Professional Regulation

1940 North Monroe Street

Tallahassee, Florida 32399-2202

Ned Luczynski, General Counsel

Department of Business and

Professional Regulation

1940 North Monroe Street

Tallahassee, Florida 32399-2202

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.