10-008075 Department Of Business And Professional Regulation, Construction Industry Licensing Board vs. Linda R. Ratliff, D/B/A Suncoast Roofing Of Polk County, Inc. Status: Closed Recommended Order on Thursday, December 30, 2010.

Summary: Respondent never completed roof so that it would pass inspection and abandoned job causing customer financial harm. Respondent misrepresented that the work was completed.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF BUSINESS AND )

PROFESSIONAL REGULATION, )

CONSTRUCTION INDUSTRY LICENSING )

BOARD , )

)

Petitioner , )

)

vs. ) Case No. 10 - 8075

)

LINDA R. RATLIFF, d/b/a )

SUNCOAST ROOFING OF POLK )

COUNTY, INC. , )

)

Respondent . )

)

RECOMMENDED ORDER

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

by video teleconference at sites in Lakeland and Tallahassee,

Florida, on October 29, 2010, be fore J. D. Parrish, a designated

Administrative Law Judge of the Division of Administrative

Hearings.

APPEARANCES

For Petitioner: Thomas Campbell, Esquire

Assistant General Counsel

Department of Business and

Professional Regulation

1940 North Monroe Street

Tallahassee, Florida 32399

For Respondent: Kevin P. Cox, Esquire

117 East Lake Avenue, Suite C

Auburndale, Florida 33823

STAT EMENT OF THE ISSUE S

The issues in this case are whether Respondent, Linda

Ratliff, d/b/a Suncoast Roofing of Polk County, Inc.

(Respondent), violated provisions of Chapter 489, Florida

Statutes (2009) , 1 as alleged in the Administrative Complaint

dated Jun e 21, 2010, issued by Petitioner, Department of

Business and Professional Regulation, Construction Industry

Licensing Board (Petitioner or Department), and, if so, what

penalties should be imposed.

PRELIMINARY STATEMENT

Petitioner filed a seven - count Admi nistrative Complaint

against Respondent that alleged specific violations of

Chapter 489, Florida Statutes , in connection with a roofing

contract for a consumer named Ray Noble. At the hearing,

Petitioner voluntarily dismissed one count , but presented pro of

as to other alleged violations. More specifically, Petitioner

maintained that Respondent had committed mismanagement or

misconduct in the practice of contracting , that caused financial

harm to a customer in violation of S ubs ection 489.129(1)(g)2 . ,

Flor ida Statutes. Petitioner claimed Respondent had abandoned a

construction project , in which the contractor was engaged or

under contract , as a contractor in violation of

S ubs ection 489.129(1)(j), Florida Statutes. Petitioner argued

Respondent had committ ed fraud or deceit in the practice of

contracting in violation of S ubs ection 489.129(1)(l), Florida

Statutes, and had failed to obtain proper inspections on the

project in violation of S ubs ection 489.129(1)(o), Florida

Statutes. Finally, Petitioner averre d Respondent was

incompetent or committed misconduct in the practice of

contracting in violation of Subsection 489.129(1)(m), Florida

Statutes . Respondent timely challenged all material factual

allegations of the Administrative Complaint and requested an

administrative hearing in connection with the matter.

The case was forwarded to the Division of Administrative

Hearings (DOAH) for formal proceedings on August 20, 2010. The

case was scheduled for hearing , and the parties were afforded an

opportunity to e xchange witness lists and exhibits prior to the

hearing.

At the hearing, Petitioner presented testimony from Herman

Blom, d eputy b uilding o fficial for the City of Lakeland; Elden

Stover, a building inspector for Lakeland; and Ray Noble, the

property owne r for whom Respondent was to install a new roof.

PetitionerÓs Exhibits A through H were admitted into evidence.

Respondent testified in her own behalf and offered additional

testimony from her son, Johnny Ratliff (identified in the record

as J. Ratliff).

The T ranscript of the proceeding was filed with DOAH on

November 12, 2010. The parties were afforded ten days from the

filing of the transcript within which to file proposed

recommended orders. PetitionerÓs Proposed Recommended Order was

filed on Novemb er 19, 2010, and has been considered in the

preparation of this Recommended O rder. Respondent did not file

a proposed order.

FINDINGS OF FACT

1. Petitioner is the state agency charged with regulating

the practice of contracting , pursuant to Section 20.16 5, Florida

Statutes, and Chapters 455 and 489, Florida Statutes.

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

the allegations of this case, a certified roofing contractor,

license number CCC 058307. RespondentÓs license is currently in

Ðproba tion, activeÑ status.

3. RespondentÓs address of record is 2023 Shoreland Drive,

Auburndale, Florida 33823.

4. Linda Ratliff , individually , is the licensed, primary

qualifying agent for Suncoast Roofing of Polk County, Inc.

(Suncoast). J. Ratliff works in the family business , and has

done so for approximately 17 years.

5. As the primary qualifying agent for Suncoast, Linda

Ratliff is responsible for the supervision of all operations of

the business. Such operations include, but are not limited to,

fi eld work at contract sites, financial responsibility for the

entity, and all contractual obligations of the company. In this

case, the only contractual obligation in dispute is in relation

to a contract between Respondent and Ray and Loretta Noble.

6. On or about February 25, 2009, Respondent entered into

a contract (the contract) with Ray and Loretta Noble. The

contract described the work to be performed. The address for

the property was identified as 1021 and 1023 Brunell Road,

Lakeland, Florida. The Noble property was a duplex , and the

contract required the owner to pay $6,8 00.00 Ðwhen finish with

work.Ñ

7. The terms of the contract specified that Respondent

would: remove the old, flat roofing; replace felt with glass

base; fix any rotten wood; reco ver the roof with 1.5 Iso Board

installation and Rubber Bitumen; replace roof stacks with new

stacks; obtain the permit; torch down Bitumen; install 12 - year

manufacturer warranty on shingles, 12 years on Rubber Bitumen,

15 TPO; provide a five - year warranty on labor; clean - up and haul

off all trash from roof; roll yard with magnetic roller; provide

professional job supervision, and re - shingle the front of the

apartment.

8. Respondent applied for and received a building permit

for the Noble contract on or about February 27, 2009.

Thereafter, Respondent proceeded with work on the property.

9. On or about March 3, 2009, Respondent requested payment

from Mr. Noble regarding completion of the roof. J. Ratliff,

acting in his capacity as an agent for Responden t, represented

to Mr. Noble that the job was finished and that payment was due

and owing. Based upon Mr. RatliffÓs representations, Mr. Noble

believed that the roof had passed inspection , and that the roof

had been installed as presented in the contract. Accordingly,

Mr. Noble paid Respondent the full contract price for the job.

10. Unbeknownst to Mr. Noble, the new roof did not pass

inspection. In fact, the roof never passed inspection.

Initially, Respondent failed to perform minor work to e nsure

that the roof was water tight. For each deficiency identified

by a city inspector, Respondent returned to the job site and

made minor repairs.

11. Ultimately, the job could not pass inspection due to

the placement of air - conditioning units on the roof of t he

structure. Respondent did not remove the units prior to

installing the new roofing system. In order to assure a water -

tight roof, the units would have needed to be removed so that

roofing materials could be place underneath. Afterward, the

units woul d have to be re - positioned on the roof. Instead,

Respondent sealed around the existing air conditioners as best

as could be done , but RespondentÓs work did not prevent water

from intruding below.

12. After a series of failed inspections, on or about

Jul y 7, 2009, city officials, Respondent, and the property owner

met at the job site to determine what could be done to cure the

roof problems. City officials advised the property owner that

the air - conditioning units would need to be moved to allow the

inst allation of roofing material and re - set afterwards.

Mr. Noble did not want to incur the cost of the additional

project.

13. Respondent also refused to correct the job so that it

could pass inspection. Respondent advised Mr. Noble that it

would cost an additional $800.00 to have a licensed person

remove the units and re - set them. Respondent and Mr. Noble

reached an impasse and neither would compromise. Respondent

never returned to the job site , and did not obtain an acceptable

inspection for the work p erformed.

14. Eventually, Mr. Noble had another company re - roof the

structure and incurred an additional $7,400.00 in roofing

expense s .

15. Respondent did not refund any of Mr. NobleÓs money ,

nor did Respondent honor the terms of the contract. The roof

failed not fewer than seven inspections and several of the

failures were unrelated to the issue associated with the air -

conditioning units.

16. The investigative costs for this case totaled $325.90.

17. Respondent has prior disciplinary action against th e

license , as noted in PetitionerÓs Exhibit C.

18. RespondentÓs claim that an additional licensee would

have been required to remove the air - conditioning units and re -

set them , is not mitigation of the circumstances of this case.

Respondent had the optio n of not undertaking a project that

required the removal of the air - conditioning units , in order to

assure a water - tight result. As the licensed party, Respondent

knew or should have known how to install a water - tight roofing

system.

CONCLUSIONS OF LAW

19. DOAH has jurisdiction over the parties to and the

subject matter of this proceeding. §§ 120.569 and 120.57, Fla.

Stat.

20. Section 489.129, Florida Statutes, provides in

pertinent part:

(1) The board may take any of the following

actions against any certificate holder 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 vi olation 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 busi ness

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:

* * *

(c) Violating any pr ovision of chapter 455.

* * *

(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 abando ned 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 re funds the excess funds within 30 days

after the date the job is abandoned; or

* * *

(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 i f 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.

* * *

(l) Committing fraud or dece it in the

practice of contracting.

* * *

(2) If a registrant or certificate holder

disciplined under subsection (1) is a

qualifying agent or financially responsible

officer for a business organization and the

violation was performed in connecti on with a

construction project undertaken by that

business organization, the board may impose

an additional administrative fine not to

exceed $5,000 per violation against the

business organization or against any

partner, officer, director, trustee, or

memb er if such person participated in the

violation or knew or should have known of

the violation and failed to take reasonable

corrective action.

(3) The board may specify by rule the acts

or omissions which constitute violations of

this section.

(4) In recommending penalties in any

proposed recommended final order, the

department shall follow the penalty

guidelines established by the board by rule.

The department shall advise the

administrative law judge of the appropriate

penalty, including mitigating a nd

aggravating circumstances, and the specific

rule citation.

21. Section 489.1195, Florida Statutes, provides in part:

(1) A qualifying agent is a primary

qualifying agent unless he or she is a

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.

22. S ubs ection 455.227(1)(a), Florida Statutes, provides

that making misleading, deceptive, or fraudulent representations

in or related to the practice of the licenseeÓs profession is

grounds for disciplinary action.

23. Petition er has the burden to establish the allegations

in the Administrative Complaint by clear and convincing

evidence. Dep ' t of Banking & Fin . v. Osborne Stern & Company ,

670 So. 2d 932 (Fla. 1996); Ferris v. Turlington , 510 So. 2d 292

(Fla. 1987).

24. Clear and convincing evidence is an Ðintermediate

standard.Ñ To meet this burden of proof, Petitioner must

present more than a Ðpreponderance of the evidenceÑ but less

than Ðbeyond and to the exclusion of a reasonable doubt.Ñ See

In re Graziano , 696 So. 2d 744 (Fla. 1997).

25. Clear and convincing evidence as a level of proof

entails both a qualitative and quantitative standard. The

evidence must be credible, the memories of the witnesses must be

clear and without confusion, and the sum total of the evidence

must be of sufficient weight to convince the trier of fact ,

without hesitancy. See Dep ' t of Children & Families v. F.L. ,

880 So. 2d 602, 614 (Fla. 2004); Matrix Employee Leasing and

FCIC/First Commercial Claims Service v. Sharon Pierce , 985 So.

2d 631 (F la. 1st DCA 2008).

26. In this case, Petitioner has presented evidence to

violations of law. All of the alleged conduct dealt with the

contract between Respondent and Ray and Loretta Noble. In no

particular order, the following conclusions are made:

A. Respondent through employee, J. Ratliff, made

misleading and deceptive representations to Ray Noble.

Specifically, J. Ratliff led Mr. Noble to believe that the roof

had passed inspection , when it had not. J. Ratliff led

Mr. Noble to believe that the ro of would pass inspection , when

it could not.

B. Respondent abandoned the job when city officials

advised the roof could not pass inspection , unless the air -

conditioning units were removed and the roof re - surfaced

underneath the air - conditioning units.

C . Ray and Loretta Noble paid for a new roof for the

structure twice.

D. Respondent obtained the required permit for the roofing

job , but did not achieve a successful inspection. Implicit in a

requirement for inspection is the verification that the work

performed will pass inspection.

E. Respondent did not competently perform the roofing work

for the consumer since the roof would not pass inspection.

27. Petitioner has established by clear and convincing

evidence that Respondent's conduct in this case constitutes a

violation of state law and the rules governing roofing

contractors.

28. Linda R. Ratliff is individually responsible for the

business entity licensed through her qualifications. Her son,

J. Ratliff, acted on behalf of the business entity. J. Ratliff

misrepresented the status of the work performed under the

contract. The roof was not completed ; i t could not pass

inspection. If J. Ratliff had assessed the roof correctly ,

Mr. Noble would have known from the outset of the transaction

that t he air - conditioning units would have to be removed and

returned in order to achieve a water tight seal under them.

J. Ratliff led Mr. Noble to believe it was not necessary to make

the additional expenditure since the sealing around the air -

conditioning u nits would be acceptable. Clearly, it was not.

Additionally, when c ity officials advised Respondent , regarding

what would be required to pass inspection, Respondent walked off

the job. As the licensed entity that pulled the permit for the

job, Responden t should have completed the job and achieved a

successful inspection. The debate of who would pay for the

additional expenses would have been resolved as contemplated in

the contract.

29. For purposes of this order, Counts I and IV of the

Administrativ e Complaint are, in essence, the same violation.

It is found that Petitioner has established by clear and

convincing evidence that Respondent made misleading and

deceptive , or committed deceit in the practice of contracting in

violation of law , as alleged in Counts I and IV of the

Administrative Complaint.

30. Additionally, Petitioner established by clear and

convincing evidence that Respondent abandoned the job without

just cause , or failed to complete the work without just cause

for 90 consecutive day s. Respondent did not complete the roof ,

and failed to work the job after June 16, 2009. On that date ,

the inspection noted that seams were not properly lapped and

sealed. Respondent never returned to complete the job despite

the inspection failure in J uly 2009. The abandonment and

subsequent financial injury to the customer establishes the

violations set forth in Counts II and III of the Administrative

Complaint.

31. Counts VI and VII are deemed cumulative and repetitive

of the same violations stated elsewhere. The factual basis for

all violations stem from the single contractual relationship

between Respondent and Ray and Loretta Noble.

32. As to the appropriate penalty for the violations noted

above, it is determined that RespondentÓs past histor y of

disciplinary actions must be considered in the recommendation of

an appropriate penalty. Probation and administrative fines

imposed in the past have not resulted in correction to

RespondentÓs business practice. In reaching the recommendation

below, due consideration has been given to the provisions of

Florida Administrative Code Chapter 61G4 - 17.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is RECOMMENDED that a final order be entered finding

Respondent guilty of violating the provisions of law found in

Counts I, II, III, IV, VI, and VII. Based upon the guidelines,

past disciplinary actions against the Respondent, and a totality

of the circumstances, it is further recommended that an

administrative fine in the am ount of $5000.00 be imposed for the

violations noted above. Also, it is recommended that

RespondentÓs license be suspended for six months. Finally, it

is recommended that Respondent be required to reimburse

Petitioner for the investigative and other cost s incurred in

this case to the full extent allowed by law.

DONE AND ENTER ED this 30th day of December , 2010 , in

Tallahassee, Leon County, Florida.

S

J. D. PARRISH

Administrative Law Judge

Division of Administrative Hearin gs

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399 - 3060

(850) 488 - 9675

Fax Filing (850) 921 - 6847

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 30th day of December , 20 10 .

ENDNOTE

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

otherwise indicated.

COPIES FURNISHED :

Thomas Hugh Campbell, Esquire

Department of Business and

Professional Regulation

1940 North Monroe Street, Suite 42

Tallahassee, Florida 32399

Kevin P. Cox, Esquire

117 East Lake Avenue, Suite C

Auburndale, Florida 33823

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 hav e 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.