09-005212 Department Of Business And Professional Regulation, Construction Industry Licensing Board vs. Victor Harris, D/B/A Victor's Roofing Co., Inc., Of The Fla Keys Status: Closed Recommended Order on Wednesday, January 6, 2010.

Summary: Petitioner proved by clear and convincing evidence that sanctions are warranted against Respondent for one of two complaints.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF BUSINESS AND )

PROFESSIONAL REGULATION, )

CONSTRUCTION INDUSTRY LICENSING )

BOARD, )

)

Petitioner, )

)

vs. ) Case No. 09-5212

)

VICTOR HARRIS, d/b/a VICTOR'S ROOFING CO., INC., OF THE FLA )

KEYS, )

)

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative

Hearings, by its duly-designated Administrative Law Judge

R. Bruce McKibben, held a formal hearing in the above-styled

case on October 28, 2009, in Punta Gorda, Florida.

APPEARANCES

For Petitioner: Sorin Ardelean, Esquire

Department of Business and

Professional Regulation

1940 North Monroe Street

Tallahassee, Florida 32399

For Respondent: Victor Harris, pro se

Victor's Roofing Company, Inc.,

of the Florida Keys

5409 Overseas Highway, Suite 254

Marathon, Florida 33050-2710

STATEMENT OF THE ISSUE

Whether disciplinary action should be taken against

Respondent’s license to practice contracting under License

No. CCC 057995, based on the violations of Subsection

489.129(1), Florida Statutes (2005).

PRELIMINARY STATEMENT

On February 9, 2007, Petitioner, Department of Business and

Professional Regulation, Construction Industry Licensing Board

("Department"), filed an Administrative Complaint on DBPR Case

Nos. 2006-003419 and 2006-006820, alleging Respondent, Victor

Harris, d/b/a Victor's Roofing Company, Inc., of the Florida

Keys, violated the laws regulating his professional activities

as a certified contractor in the State of Florida. The

Administrative Complaint charged Respondent with violations of

Subsection 489.129(1)(j), Florida Statutes (2005), by abandoning

a construction project in which the contractor is engaged or

under contract; and Subsection 489.129(1)(m), Florida Statutes

(2005), by committing incompetency or misconduct in the practice

of contracting.

Respondent disputed the allegations contained in the

Administrative Complaint and elected to have a formal

administrative hearing. Consequently, the case was transferred

to the Division of Administrative Hearings ("DOAH") to conduct a

final hearing pursuant to Section 120.57, Florida Statutes

(2009).

During the hearing, Petitioner offered the testimony of two

witnesses: Bobby McElroy and Larry Mesler. Petitioner

introduced 12 exhibits numbered 1 through 12, all of which were

entered into evidence. Respondent testified on his own behalf

and introduced one exhibit that was entered into evidence.

The parties indicated that a transcript of the final

hearing would be ordered. The parties were to submit proposed

recommended orders within ten days of the transcript being filed

at DOAH. The Transcript was filed on November 18, 2009.

Petitioner filed its Proposed Recommended Order on November 25,

2009, and it was duly considered in the preparation of this

Recommended Order. No proposed recommended order was submitted

by Respondent.

FINDINGS OF FACT

Based on the evidence and testimony of the witnesses

presented and the entire record in this proceeding, the

following facts are found:

1. At all times material hereto, Respondent was a

certified general contractor, having been issued License

No. CCC 057995 by the Department.

2. At all times material hereto, Respondent was the

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

3. On January 14, 2005, Respondent entered into a contract

with Bobby McElroy to re-roof McElroy's residence located in

Punta Gorda, Florida. The roof had been damaged during

Hurricane Charley the previous year. The contract price was

$23,750, of which McElroy paid $15,800 in advance. Of the

advance funds, $7,850 was designated as payment to take off the

old roof and install felt and metal flashing, and $7,950 was

designated for installing tiles on the roof. The balance

($7,950) was designated for the remainder of the work, i.e.,

replacing water damage, installing 90-pound roll-roofing slate

over the felt, obtaining permits, and payment of dump fees.

4. Respondent commenced work on the McElroy residence on

March 8, 2005, by removing and disposing of the existing roof

tiles, doing repair work, installing 30-pound felt paper, and

"hot mopping" the roof. The purpose of the "hot mopping" was to

protect the roof pending installation of the new roof tiles.

Respondent opined at final hearing that the completion of "hot

mopping" constituted a new roof. The new roof tiles were, in

his opinion, only for aesthetics. McElroy was advised that it

would take six weeks or so, and possibly even up to 18 weeks,

for the new tiles to arrive.

5. Respondent came to McElroy's house on June 27, 2005,

some 12 weeks after Respondent had commenced work on the roof,

with a tile order form. The tiles listed on that form, however,

were Capri Pinto Blend tiles, not the Capri Hope tiles that

McElroy had decided upon. The tile order form was dated

January 20, 2005, but McElroy said he had not even made up his

mind about which tiles to order until February 16, 2005.

McElroy believes the date on the order form was wrong or had

been changed by someone. The date at the top of the tile order

form was January 20, 2005. However, the form listed June 27,

2005, as the order date and also as the ship date. The form

indicated a check was received from "Victor's Roofing" on

June 27, 2005. None of the testimony at final hearing cleared

up this discrepancy.

6. Respondent advised McElroy on June 27, 2005, that Capri

Hope tiles were no longer being manufactured, but McElroy had

reason to believe that representation was in error. The

evidence on this point was uncorroborated hearsay from McElroy,

who said he was told by the manufacturer that the Capri Hope

tiles were still being made. Respondent presented

uncorroborated hearsay testimony that a representative from the

company told him the tiles had been discontinued. There was no

competent and substantial evidence presented as to whether the

tiles had been discontinued or were still available.

7. McElroy apparently and reluctantly acquiesced to the

Capri Pinto Blend tiles, and the tiles valued at $4,837.20 were

delivered to McElroy's residence on or about June 30, 2005.

However, Respondent did not return to install the tiles and has

done no work on McElroy's house since May 26, 2005, i.e., prior

to the new tiles being ordered.

8. In October 2005, Respondent apparently picked up the

Capri Pinto Blend tiles from McElroy's home pursuant to

instructions from McElroy. Another hurricane was approaching,

and McElroy was worried that the tiles may blow off the roof

where they were stacked. At final hearing McElroy testified

that the last time he saw Respondent was when the Capri Pinto

Blend tiles were removed from his property. However, in the

chronology of events in McElroy's complaint to Petitioner, which

McElroy testified was true and accurate, there is no mention of

the tiles being removed. This inconsistency was not cleared up

at final hearing.

9. In February 2006, McElroy hired a second contractor to

"finish" his roof. However, at that time, McElroy decided to

upgrade to a metal roof. The cost of the upgraded roof was

$25,200, which included some roof preparation in addition to

what Respondent had previously done and the cost of the new

metal roof.

10. There was no testimony as to the value of the services

that Respondent provided to McElroy before Respondent ceased

working at the McElroy's residence, but it is clear that

extensive work was done. It is also clear that Respondent did

not complete the job by installing the Capri Pinto Blend tiles

and did no work on the job since May 2005 (except for picking up

the tiles in October 2005).

11. Petitioner submitted an affidavit indicating that the

total investigative cost of this case to Petitioner, excluding

costs associated with any attorney's time for DBPR Case

No. 2006-003419, was $297.83. The hearsay affidavit was not

corroborated by other competent evidence.

12. On November 8, 2004, Respondent entered into a

contract with Larry Mesler to re-roof Mesler's residence located

in Punta Gorda, Florida. The roof had been damaged by a

hurricane during the previous year. The copy of the contract

entered into evidence is essentially unreadable, but the parties

stipulated that a contract existed between them. The contract

price was $30,000, of which amount Mesler paid $20,000 (a

$10,000 down payment and $10,000 more when the roof tiles were

ordered). The down payment covered the removal and disposal of

the old tiles, as well as the "hot mopping" process. The second

payment covered the purchase and delivery of the tiles for

Mesler's roof. The final $10,000 was apparently to cover the

cost of installing the new tiles, but there was no clear

evidence presented at final hearing as to that fact.

13. In April 2005, roof tiles for the project were

delivered to Mesler's residence. Mesler was concerned about the

number of broken tiles, but no evidence was presented to

indicate there were insufficient tiles to complete the job.

14. It took until July 7, 2005, for a building permit to

be obtained for commencement of the roofing work. This was

during a period of time that numerous roof repair jobs were

going on following Hurricane Charley, which had hit the area in

2004.

15. The roof tiles were installed by Respondent, but it is

unclear from the evidence as to how much of the job was

completed. The testimony at final hearing was extremely sketchy

as to whether Respondent installed some or none of the tiles.

It is clear, however, that the job was not completed to Mesler's

satisfaction. Mesler was unsuccessful in his attempts to

contact Respondent to finish the job.

16. At some point Mesler hired another contractor and paid

him $16,550 to complete the roofing job. That amount included

purchase of additional tiles, but the contract, as well as

Mesler's testimony, is unclear as to how much tile was ordered

or the extent of the additional work. Nor is the testimony

clear as to when Respondent last performed work on Mesler's

home.

17. Petitioner submitted an affidavit indicating that the

total investigative cost of DBPR Case No. 2006-006820 to

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

was $351.07. The hearsay affidavit was not corroborated by

other competent evidence.

CONCLUSIONS OF LAW

18. The Division of Administrative Hearings has

jurisdiction over the parties and subject matter of this

proceeding pursuant to Section 120.57, Florida Statutes (2009).

19. Petitioner is the state agency charged with regulating

the practice of contracting pursuant to Section 20.165 and

Chapters 455 and 489, Florida Statutes (2009).

20. Pursuant to Section 489.129, Florida Statutes (2005),

the Board is empowered to revoke, suspend, or otherwise

discipline the license of a contractor who is found guilty of

any of the grounds enumerated in Subsection 489.129(1), Florida

Statutes (2005).

21. Petitioner has the burden of proving by clear and

convincing evidence the allegations against Respondent.

§ 120.57(1)(j), Fla. Stat. (2009); 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).

22. Evans Packing Co. v. Department of Agriculture and

Consumer Services , 550 So. 2d 112, 116, fn. 5 (Fla. 1st DCA

1989), provides the following guidance regarding the clear and

convincing evidence standard:

That standard has been described as

follows: [C]lear and convincing evidence

requires that the evidence must be found to

be credible; the facts to which the

witnesses testify must be distinctly

remembered; the evidence must be precise and

explicit and the witnesses must be lacking

in confusion as to the facts in issue. The

evidence must be of such weight that it

produces in the mind of the trier of fact

the firm belief of conviction, without

hesitancy, as to the truth of the

allegations sought to be established.

Slomowitz v. Walker , 429 So. 2d 797, 800 (Fla. 4th DCA 1983).

23. The Administrative Complaint alleges that Respondent

is guilty of violating Subsections 489.129(1)(j) and (m),

Florida Statutes (2005), which provide, in pertinent part, as

follows:

(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 or registration, 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 . . . or business organization

for which the contractor is a primary

qualifying agent . . . is found guilty of

any of the following acts:

* * *

(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 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.

24. Petitioner has proven by clear and convincing evidence

that Respondent violated Subsections 489.129(1)(j) and (m),

Florida Statutes (2005), i.e., that Respondent abandoned the

McElroy contract and/or committed incompetency or misconduct in

the practice of contracting. The testimony concerning this

matter was incomplete, disjointed, and confusing. It is not

precise and explicit, nor is it distinctly remembered. It is

clear, however, that Respondent did not fully complete the roof

project for some reason. It is further clear that McElroy paid

for tiles that were not used on his roof, and those tiles were

removed from his property. Further, it is clear Respondent did

no work on the project from May 2005 until October 2005, a

period of well over 90 days.

25. Petitioner has not proven by clear and convincing

evidence that Respondent violated Subsections 489.129(1)(j)

and (m), Florida Statutes (2005), by abandoning the Mesler

project or by committing incompetency or misconduct in the

practice of contracting. The evidence is clear that Respondent

performed work pursuant to the contract between the parties. It

is also clear Mesler was not happy with the work and that Mesler

hired another contractor to work on his roof after giving up on

Respondent. However, the evidence is neither clear nor

convincing as to whether Respondent abandoned the project or did

substandard work.

26. While an action might be warranted concerning

repayment by Respondent for a portion of the funds paid by

McElroy and/or Mesler, there is insufficient evidence to warrant

sanctions against Respondent as set forth in the Administrative

Complaint.

27. Florida Administrative Code Rule 61G4-17.001, sets

forth guidelines for establishment of monetary fines and

penalties for disciplinary cases. It states in pertinent part:

(1) The following guidelines shall be used

in disciplinary cases, absent aggravating or

mitigating circumstances and subject to the

other provisions of this Chapter.

* * *

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

Abandonment. First violation, $500.00 to

$2,000.00 fine.

28. There is no evidence that Respondent had any other

violations in his past concerning the abandonment of a project.

There were no aggravating factors, but the existence of

hurricanes causing extensive work for Respondent and like-

situated individuals are a mitigating factor.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is:

RECOMMENDED that a final order be entered by Petitioner,

Department of Business and Professional Regulation, Construction

Industry Licensing Board:

1. Finding that Respondent, Victor Harris, d/b/a Victor's

Roofing Company, Inc., of the Florida Keys, abandoned the

McElroy project and imposing an administrative fine in the

amount of $1,000; and

2. Dismissing the Administrative Complaint against

Respondent as to the Mesler project.

DONE AND ENTERED this 6th day of January, 2010, in

Tallahassee, Leon County, Florida.

R. BRUCE MCKIBBEN

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 6th day of January, 2010.

COPIES FURNISHED :

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

Sorin Ardelean, Esquire

Department of Business and

Professional Regulation

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

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.