09-005211 Department Of Business And Professional Regulation, Construction Industry Licensing Board vs. Victor Harris, D/B/A Victor's Roofing Co., Inc., Of The Florida Keys Status: Closed Recommended Order on Thursday, January 14, 2010.

Summary: Roofing contractor, who obtained the requisite permit and inspections but did not do deficient drywall work, is not guilty of the charges in the Administrative Complaint.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF BUSINESS AND )

PROFESSIONAL REGULATION, )

CONSTRUCTION INDUSTRY LICENSING )

BOARD, )

)

Petitioner, )

)

vs. ) Case No. 09-5211PL

)

VICTOR HARRIS, d/b/a, VICTOR’S )

ROOFING CO., INC. OF FLORIDA )

KEYS, )

)

Respondent, )

_________________________________)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was held in this case

on December 1, 2009, by video teleconference between Miami and

Tallahassee, Florida, before Administrative Law Judge Claude B.

Arrington of the Division of Administrative Hearings (DOAH).

APPEARANCES

For Petitioner: Sorin Ardelean, Esquire

Assistant General Counsel

Department of Business and

Professional Regulation

Northwood Centre

1940 North Monroe Street, Suite 42

Tallahassee, Florida 32399-2022

For Respondent: Victor Harris, p ro se

1134 Ensenada Street

Marathon, Florida 33050

STATEMENT OF THE ISSUE

Whether Respondent committed the offenses alleged in the

Administrative Complaint and, if so, the penalties that should

be imposed.

PRELIMINARY STATEMENT

On September 18, 2008, Petitioner filed an Administrative

Complaint against Respondent, which alleged certain facts

pertaining to Respondent’s dealings with a consumer named Claude

Johnson. Those factual allegations focused on roofing work done

and on subsequent drywall repair on rental property owned by

Mr. Johnson at 3214 Harriet Avenue, Key West, Florida. Based on

those factual allegations, Petitioner charged Respondent in

three Counts with the violations that are at issue in this

proceeding.

Petitioner alleged in paragraphs 13 and 14 (Count I) that

Respondent’s license should be disciplined on the following

grounds:

13. Section 489.113, Florida Statutes,[ 1 ]

requires that any person who desires to

engage in contracting on a statewide basis

shall, as a prerequisite thereto, establish

his or her competency and qualifications to

be certified pursuant to this part.

14. Based on the foregoing, Respondent

violated section 489.129(1)(i), Florida

Statutes, by failing in any material respect

to comply with the provisions of Chapter

489, Part I, Florida Statutes, or violating

a rule or lawful order of the board, by

having violated section 489.113, Florida

Statutes.

Petitioner alleged in paragraph 16 (Count II) that

Respondent’s license should be disciplined on the following

grounds:

16. Based upon the foregoing, the

Respondent violated Section 489.129(1)(o),

Florida Statutes, by failing to obtain the

necessary permits, pass all inspections and

finalize the necessary permits.

Petitioner alleged in paragraph 18 (Count III) that

Respondent’s license should be disciplined on the following

grounds:

18. Based on the foregoing, Respondent

violated section 489.129(1)(m), Florida

Statutes, by committing incompetence or

mismanagement in the practice of

contracting.

Respondent timely requested a formal administrative

hearing, the matter was duly referred to DOAH, and this

proceeding followed.

At the formal hearing, Petitioner presented the testimony

of Idelmis Del Rio (an investigator employed by Petitioner) and

Mr. Johnson. Petitioner offered seven sequentially-marked

Exhibits, each of which was admitted into evidence. Respondent

testified on his own behalf and offered one Exhibit, which was

admitted into evidence.

A Transcript of the proceeding was filed December 21, 2009.

The deadline for the filing of post-hearing submittals was set

for ten days following the filing of the transcript. Petitioner

timely filed a Proposed Recommended Order (PRO), which has been

duly-considered by the undersigned in the preparation of this

Recommended Order. Respondent has not filed a PRO as of the

entry of this Recommended Order.

FINDINGS OF FACT

1. At all times relevant to this proceeding, Respondent

has been licensed by the Petitioner as a roofing contractor,

having been issued license number CCC 57995 by the Florida

Construction Industry Licensing Board.

2. At all times relevant to this proceeding, Respondent

was the qualifier for and did business as “Victor’s Roofing Co.,

Inc. of the Fla. Keys” (Victor’s Roofing).

3. At all times relevant to this proceeding, Mr. Johnson

was an owner of property located at 3214 Harriet Avenue, Key

West, Florida (the subject property). Mr. Johnson lives in

Hollywood, Florida. The subject property is rental property.

4. Respondent and his company are not licensed to do

drywall work in Key West, Florida, and they are not licensed

with Petitioner other than as a roofing contractor.

ROOFING WORK

5. On November 3, 2008, Respondent, on behalf of Victor’s

Roofing, entered into a contract with Mr. Johnson to re-roof the

subject property. The proposal submitted by Respondent to

Mr. Johnson contained Victor’s Roofing’s full corporate name;

its office address in Marathon, Florida; two telephone numbers;

and a fax number. The proposal was signed by Respondent. The

proposal described in some detail the scope of the work. The

price of the work was $7,000.00. Mr. Johnson accepted the

proposal.

6. Victor’s Roofing completed the roofing job to

Mr. Johnson’s satisfaction. A leak developed after the roof was

completed and Victor’s Roofing promptly repaired the leak to

Mr. Johnson’s satisfaction.

7. Petitioner’s Administrative Complaint alleged that

Victor’s Roofing had failed to obtain a permit for the roofing

job on the subject property and that it had failed to obtain

required inspections. Those allegations were the result of an

error by Petitioner’s investigator. Ms. Del Rio obtained

records from the City of Key West Building Department for the

wrong address. Instead of obtaining the permit history for the

subject property (3214 Harriet Avenue) she requested and

obtained the permit history for 3314 Harriet Avenue.

8. Respondent applied for a permit for the roofing job on

the subject property on November 11, 2006, and he obtained an

inspection of the roof on November 27, 2007 [sic]. There was

insufficient evidence to establish that any other permit or any

other inspection was required for the roofing work.

DRYWALL WORK

9. After the roofing job had been completed (but before

the inspection on November 27, 2007), 2 Mr. Johnson informed

Respondent by telephone that he needed someone to replace

drywall that had been damaged during the period of time the

subject property’s roof leaked. Mr. Johnson asked Respondent

whether he knew anyone who could do the job. Respondent replied

in the affirmative and told Mr. Johnson he would have someone

contact him about doing the work. 3

10. Thereafter, Respondent’s brother, Early Harris,

contacted Mr. Johnson and the two of them verbally agreed on a

price of $4,000. At the time Respondent put Early Harris in

touch with Mr. Johnson, Respondent knew that Early Harris was

not licensed to do drywall work in Key West. After giving

Mr. Johnson’s telephone number to Early Harris, Respondent had

no further involvement with the drywall work on the subject

property.

11. The price of the drywall work escalated to $9,000.00

after the work began. On November 25, 2006, Early Harris and

Mr. Johnson signed a written proposal agreeing to the price of

$9,000.00. 4 This was a form proposal with the following:

Victor’s Roofing Co., Inc.

2nd Generation

Serving South Florida

Licensed & Insured

Marathon, Fla.

12. The only telephone number on the proposal other than

Mr. Johnson’s, was the number for Early Harris’ cell phone.

13. The contract signed by Respondent on November 3, 2006,

for the roofing work was on a different form and utilized a

different font than the contract signed by Early Harris on

November 25, 2006.

14. The name of the corporation on the proposal for the

drywall work, while similar to the name of Respondent’s company,

was different.

15. Early Harris has worked for Respondent’s business for

several years, but there was no clear and convincing evidence

that Early Harris had the authority to contract on behalf of

Respondent’s business in November 2006. There was no evidence

that Early Harris is a part owner of Respondent’s business or

that he is an officer or director of Respondent’s business.

Respondent testified, credibly, that Early Harris was not

authorized to contract on behalf of Respondent’s business at the

times relevant to this proceeding. There was no clear and

convincing evidence to refute Respondent’s assertion that Earl

Harris had no authority to contract on behalf of Respondent’s

business.

16. Early Harris did the drywall work on the subject

property.

17. Mr. Johnson paid Early Harris $9,000.00 for the

drywall work. Mr. Johnson could not find the check(s) he wrote

for the drywall work and, consequently the check(s) were

unavailable as an exhibit. His recollection as to the name of

the payee of the check(s) was not clear. Respondent testified,

credibly, that neither he nor his business received any of the

money for the drywall work.

18. The drywall work Early Harris did was not to

Mr. Johnson’s satisfaction. Mr. Johnson had to pay $600.00 to a

drywall contractor for corrective work. In addition,

Mr. Johnson had to pay $600.00 for a permit to have the repair

work done. 5

19. The total investigative costs of this case to

Petitioner, excluding costs associated with any attorney’s time,

was $191.16.

CONCLUSIONS OF LAW

20. The Division of Administrative Hearings has

jurisdiction over the subject matter of and the parties hereto

pursuant to Sections 120.569 and 120.57(1), Florida Statutes.

21. Petitioner has the burden of proving the allegations

against Respondent by clear and convincing evidence. See

§ 120.57(1), Fla. Stat.; Ferris v. Turlington , 510 So. 2d 292

(Fla. 1987); Evans Packing Co. v. Department of Agriculture and

Consumer Services , 550 So. 2d 112 (Fla. 1st DCA 1989); Inquiry

Concerning a Judge , 645 So. 2d 398 (Fla. 1994); and Department

of Banking and Finance v. Osborne Stern and Co. , 670 So. 2d 932

(Fla. 1996).

22. Petitioner’s argument that Respondent and/or his

company should be held accountable for the drywall work, while

plausible, does not constitute clear and convincing evidence of

the fact in contention. The circumstantial evidence and the

credible direct evidence set forth in the record of this

proceeding do not establish by clear and convincing evidence

that either Respondent or his company is responsible for the

drywall repairs on the subject property.

23. Count I of the Administrative Complaint is based on

Petitioner’s contention that Respondent and his company violated

the provisions of Section 489.113, Florida Statutes, by doing

drywall work without the requisite license. Petitioner failed

to prove the facts that underpin that allegation.

24. Count II of the Administrative Complaint is based on

Petitioner’s contention that Respondent and his company violated

the provisions of Section 489.129(1)(o), Florida Statutes, by

failing to obtain the necessary permits, pass all inspections

and finalize the necessary permits. These alleged failures

pertain to the roofing work and the drywall work. The

allegations as to the roofing work resulted from a mistake by

Petitioner’s investigator. Respondent obtained a permit for the

roofing work and at least one inspection was made of the roofing

work. Petitioner failed to establish that an additional

inspection for the roof was required. Respondent and his

company are not responsible for the drywall work.

25. Count III of the Administrative Complaint is based on

Petitioner’s contention that Respondent and his company violated

the provisions of Section 489.129(1)(m), Florida Statutes, by

committing incompetence or mismanagement in the practice of

contracting. These allegations are based on the problems with

the drywall work. Respondent and his company are not

responsible for the drywall work.

26. Petitioner has failed to meet its burden of proof as

to Counts I, II, and III of the Administrative Complaint.

Respondent should be found not guilty of the violations alleged

in the Administrative Complaint.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions

of Law, it is hereby RECOMMENDED that the Department of Business

and Professional Regulation, Construction Industry Licensing

Board, enter a final order finding Respondent not guilty of the

violations alleged in Counts I, II, and III of the

Administrative Complaint.

DONE AND ENTERED this 14th day of January, 2010, in

Tallahassee, Leon County, Florida.

CLAUDE B. ARRINGTON

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 14th day of January, 2010.

ENDNOTES

1 / All statutory references are to Florida Statutes (2009). All

references to rules are to the version of the rule published in

Florida Administrative Code as of the date of this Recommended

Order. There has been no change in any applicable statute or

rule between the dates of the acts discussed in this Recommended

Order and the date of entry of this Recommended Order.

2 / Respondent testified that he thought the call occurred around

November 20, 2006.

3 / Mr. Johnson testified that Respondent told him that he was

licensed to do drywall work. Because of his inability to

clearly recall his dealings with Respondent and with Early

Harris, Mr. Johnson’s testimony is not as credible as

Respondent’s testimony that he made no such statement.

4 / The removal of the old drywall revealed extensive rotten wood

that had to be repaired. That damage, which had not been

revealed when Early Harris and Mr. Johnson verbally agreed to a

price of $4,000.00, caused the increased price. Mr. Johnson

agreed to the increased price.

5 / The record was unclear as to the license(s) or permit(s)

required to do drywall work in Key West.

COPIES FURNISHED :

Sorin Ardelean, Esquire

Department of Business and

Professional Regulation

Northwood Centre

1940 North Monroe Street

Tallahassee, Florida 32399

Victor Harris

Victor's Roofing Co., Inc. of the Florida Keys

5409 Overseas Highway, Suite 254

Marathon, Florida 33050-2710

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

Reginald Dixon, General Counsel

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.