98-004859 Department Of Business And Professional Regulation, Construction Industry Licensing Board vs. Lucius P. Clark Status: Closed Recommended Order on Tuesday, October 31, 2000.

Summary: Respondent assisted an unlicensed person to practice contracting, having reasonable grounds to know that the person was unlicensed. Respondent abandoned a construction project.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF BUSINESS AND )

PROFESSIONAL REGULATION, )

CONSTRUCTION INDUSTRY )

LICENSING BOARD, )

)

Petitioner, )

)

vs. ) Case Nos. 98-4859

) 99-0261

LUCIUS P. CLARK, )

)

Respondent. )

________________________________)

RECOMMENDED ORDER

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

on October 15, 1999, by video teleconference with connecting

sites at Miami and Tallahassee, Florida, and on December 9, 1999,

February 4, 2000, and Ma y 3, 2000, at Miami, Florida, before

Errol H. Powell, a designated Administrative Law Judge of the

Division of Administrative Hearings.

APPEARANCES

For Petitioner: Diane Snell Perera, Esquire

Department of Business and

Professional Regulation

401 Northwest 2nd Avenue, Suite N607

Miami, Florida 33128

For Respondent: Richard F. Hayes, Esquire

10300 Sunset Drive, No. 499

Miami, Florida 33173

STATEMENT OF THE ISSUE

The issue for determination is whether Respondent committed

the offenses set forth in the Administrative Complaints and, if

so, what penalty should be imposed.

PRELIMINARY STATEMENT

On April 27, 1998, the Department of Business and

Professional Regulation, Construction Industry Licensing Board

(Petitioner) filed a two-count Administrative Complaint

(Petitioner's Case No. 97-21762) against Lucius P. Clark

(Respondent). Petitioner charged Respondent with the following:

Count I--violating Subsection 489.129(1)(k), Florida Statutes

(1995) [sic], by abandoning a construction project in which the

contractor is engaged or under contract as a contractor; and

Count II--violating Subsection 489.129(1)(d), Florida Statutes

(1995) [sic], by knowingly violating the applicable building

codes or laws of the state or of any municipalities or counties

thereof. Respondent disputed the allegations of fact of the

Administrative Complaint and requested a hearing. On October 29,

1998, this matter was referred to the Division of Administrative

Hearings (DOAH) and assigned DOAH Case No. 98-4859.

On November 25, 1998, Petitioner filed an Administrative

Complaint (Petitioner's Case No. 98-19860) against (Respondent).

Petitioner charged Respondent with violating Subsection

489.129(1)(e), Florida Statutes (1997), by performing any act

which assists a person or entity in engaging in the prohibited

uncertified and unregistered practice of contracting, if the

certificateholder or registrant knows or has reasonable grounds

to know that the person or entity was uncertified and

unregistered. Respondent disputed the allegations of fact of the

Administrative Complaint and requested a hearing. On January 19,

1999, this matter was referred to DOAH and assigned DOAH Case No.

99-0261.

By Order dated February 5, 1999, Case Nos. 98-4859 and

99-0261 were consolidated.

At hearing, the parties agreed that Case No. 99-0261 would

be presented first. For Case No. 99-0261, Petitioner presented

the testimony of three witnesses and entered 7 exhibits

(Petitioner's Exhibits numbered 1-6 and 8) into evidence.

Respondent testified on his own behalf, presented the testimony

of one witness, and entered one exhibit (Respondent's Exhibit

numbered 1) into evidence.

For Case No. 98-4859, Petitioner presented the testimony of

four witnesses and entered 18 exhibits (Petitioner's Exhibits

numbered 1-15 and 17-19) into evidence. (Petitioner's Exhibit

numbered 18 is the same as Petitioner's Exhibit numbered 1 in

Case No. 99-0261.) Petitioner's Exhibit numbered 16 was

rejected. Respondent testified on his own behalf, presented the

testimony of one witness, and entered no exhibits into evidence.

A transcript of the hearing was ordered. At the request of

the parties, the time for filing post-hearing submissions was set

for more than ten days following the filing of the transcript.

The Transcript, consisting of four volumes, was filed on

January 7, 2000, January 13, 2000, April 3, 2000, and May 16,

2000. Respondent was granted an extension of time to file his

post-hearing submission. The parties timely filed their post-

hearing submissions, which were considered in the preparation of

this Recommended Order.

FINDINGS OF FACT

1. It is undisputed that at all times material hereto,

Respondent was licensed by the State of Florida as a Certified

General Contractor, having been issued license number CG C58099.

Respondent passed the licensing examination in August 1995.

Case No. 99-0261

2. Respondent is not a licensed roofing contractor.

3. Respondent's Certified General Contractor's license did

not and does not permit him to obtain roofing permits to perform

any type of work on roofs. Respondent's Certified General

Contractor's license number was not low enough for him to be

grandfathered in by the State to allow him to lawfully perform

roofing work with his Certified General Contractor's license.

4. On or about February 23, 1998, Delfina Valdes contracted

with Johnny Hatcher, d/b/a Hatcher's Roofing, to repair the roof

on her residence located at 18101 Northwest 32 Avenue, Miami,

Florida. They contracted for Hatcher to remove Valdes' old roof

and install a new roof at a cost of $4,000.

5. Valdes paid Hatcher $2,000 as a down payment toward the

cost of the roof's repair.

6. At no time material hereto was Hatcher a licensed

roofing contractor. Furthermore, at no time material hereto was

Hatcher's Roofing qualified by the State of Florida to perform

contracting.

7. Hatcher removed the roof from Valdes' residence. After

removing the roof, he did not perform any more work.

8. Respondent met with Valdes and represented to her that

Hatcher was working for him. Respondent further represented that

he would obtain the permit for the roofing work.

9. Respondent paid Cayetano Alfonso to obtain a roofing

permit for the work on Valdes' roof. On or about March 26, 1998,

Alfonso made application to Metropolitan Dade County, Department

of Planning, Development and Regulation for the roofing permit,

which was subsequently issued.

10. Alfonso was a Certified General Contractor who was

licensed to perform roofing work. Alfonso's Certified General

Contractor's license number was low enough for him to be

grandfathered in by the State to allow him to lawfully perform

roofing work with his Certified General Contractor's license.

11. Alfonso was not the qualifier for Hatcher's Roofing nor

was he Respondent's qualifier. Alfonso did not enter into the

contract with Valdes for repairing her roof. Alfonso was not a

party to the contract for repairing Valdes' roof.

12. An inference is drawn and a finding of fact is made

that Hatcher was not acting on behalf of Alfonso when he entered

into the contract with Valdes. An inference is drawn and a

finding of fact is made that Respondent was not acting on behalf

of Alfonso when he represented to Valdes that he would obtain the

permit for the roofing work.

13. When Respondent discovered that Hatcher had received a

$2,000 deposit from Valdes, he requested Alfonso to cancel the

permit. On or about April 20, 1998, Alfonso cancelled the

roofing permit.

14. On or about June 5, 1998, Valdes cancelled the contract

between her and Hatcher Roofing.

15. Valdes received a refund of the $2,000 from Hatcher,

through a third party, that she had paid him.

Case No. 98-4859

16. On or about April 9, 1995, Respondent entered into a

contract with Susan Casper to construct an addition to her

residence located at 17350 Northeast 12th Court, North Miami

Beach, Florida, at a cost of $38,135. Casper paid Respondent

$36,285.00 toward the cost of the addition. Respondent was not

licensed at the time that he entered into the contract.

17. On or about March 20, 1996, Respondent obtained a

permit from the Metropolitan Dade County, Department of Planning,

Development and Regulation for the work on the addition.

18. Several delays were encountered during the performance

of the work. Some of the delays resulted from changes by Casper,

which changes required approval by Metropolitan Dade County,

Department of Planning, Development and Regulation; however, most

of the delays were Respondent's own doing.

19. In October 1996, Casper paid $2,588 to Best Truss

Company for a claim of lien filed on her residence, associated

with the work being performed on her residence.

20. Respondent worked sporadically on Casper's addition

through April 1997. He would inform her at times that he was

returning but failed to return.

21. At one point, Casper's children constructed a sign in

their own handwriting, instructing Respondent to keep out and

indicating that there was no trespassing by him. The sign was

posted on the door of Casper's residence. Casper informed

Respondent that her children constructed the sign. It was

obvious that the keep out, no trespassing sign was constructed by

children. Respondent's assertion that he was kept away from

Casper's residence by the children's sign is not credible.

22. Even after the children's sign was posted on the front

door of Casper's residence, Respondent agreed with Casper to

resume work, and he did so. However, his work was sporadic.

23. In or around June 1997, Casper sought assistance from

the Metropolitan Dade County, Department of Planning, Development

and Regulation to get Respondent to complete the work. In

July 1997, Respondent obtained a window permit for the work on

Casper's residence.

24. After July 1997, Respondent ceased working on Casper's

residence. He did not provide Casper with any notice that he was

ceasing work. Respondent had no valid reason for ceasing the

work.

25. In September 1997, Casper transferred the permit for

the work on her residence from Respondent's name to her name.

26. Respondent failed to perform all the work under the

contract. Some of the work performed by Respondent or caused to

be performed by Respondent contained code violations and needed

correcting.

27. Certain work performed by Respondent or caused to be

performed by Respondent needed correcting. Wood doors, glass

block, electrical work, and a sprinkler were in need of

correction. Casper bore the expense of the corrections. The

corrective work was completed at a cost of $1,675.00.

28. The value of the work performed by Respondent on

Casper's residence was $18,272, minus the cost of the corrective

work of $1,675, which equals a total value of the work at

$16,597. This cost value includes overhead and profit. Even

though the value of the work by Respondent was $16,597, Casper

paid Respondent $36,285, a difference of $19,688.

29. Casper hired a new contractor on or about September 17,

1997, to complete the construction on her residence at a cost of

$16,350.

30. As to Case No. 98-4859, as of January 26, 1999,

Petitioner incurred a cost of $1,108.76 for the investigation and

prosecution of Respondent.

31. Petitioner previously disciplined Respondent for

violating Chapter 489, Florida Statutes (1995), including

violating Subsection 489.127(1)(k), Florida Statutes (1995),

abandonment of a construction project.

CONCLUSIONS OF LAW

32. The Division of Administrative Hearings has

jurisdiction over the subject matter of this proceeding and the

parties thereto pursuant to Section 120.569 and Subsection

120.57(1), Florida Statutes.

33. License revocation proceedings are penal in nature.

The burden of proof is on Petitioner to establish by clear and

convincing evidence the truthfulness of the allegations in the

Administrative Complaint. Department of Banking and Finance,

Division of Securities and Investor Protection v. Osborne Stern

and Company , 670 So. 2d 932 (Fla. 1996); and Ferris v.

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

34. A licensee is charged with knowing the practice act

that governs his/her license. Wallen v. Florida Department of

Professional Regulation, Division of Real Estate , 568 So. 2d 975

(Fla. 3d DCA 1990).

Case No. 99-0261

35. A business engaging in contracting must do so through a

qualifying agent licensed by Petitioner; without a qualifying

agent, a business cannot engage in contracting. Subsection

489.119, Florida Statutes (1997).

36. Section 489.129, Florida Statutes (1997), provides 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 $5,000

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:

* * *

(e) Performing any act which assists a

person or entity in engaging in the

prohibited uncertified and unregistered

practice of contracting, if the

certificateholder or registrant knows or has

reasonable grounds to know that the person or

entity was uncertified and unregistered.

37. Petitioner demonstrated that Respondent violated

Subsection 489.129(1)(e), Florida Statutes (1997).

Case No. 98-4859

38. Section 489.129, Florida Statutes (1997), provides 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 $5,000

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:

* * *

(d) Knowingly violating the applicable

building codes or laws of the state or of any

municipalities or counties thereof.

* * *

(k) 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.

39. Petitioner is dismissing Count II of the Administrative

Complaint, charging Respondent with violating Subsection

489.129(1)(d), Florida Statutes.

40. Petitioner demonstrated that Respondent violated

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

Penalty for both cases

41. As to penalty, Rule 61G4-17.001, Florida Administrative

Code, provides guidelines for violations of Section 489.129.

Rule 61G4-17.001, Florida Administrative Code, provides in

pertinent part:

The following guidelines shall be used in

disciplinary cases, absent aggravating or

mitigating circumstances and subject to other

provisions of this Chapter.

* * *

(5) 489.129(1)(e): Assisting unlicensed

person to evade provision of Chapter 489.

First violation, $500 to $2,500 fine; repeat

violation, $2,500 to $5,000 fine and

suspension, or revocation.

* * *

(11) 489.129(1)(k): Abandonment. First

violation, $500 to $2,000 fine; repeat

violation, revocation and $5,000 fine.

* * *

(20) For any violation occurring after

October 1, 1989, the board may assess the

costs of investigation and prosecution. The

assessment of such costs may be made in

addition to the penalties provided by these

guidelines without demonstration of

aggravating factors set forth in rule 61G4-

17.002.

(21) For any violation occurring after

October 1, 1988, the board may order the

contractor to make restitution in the amount

of financial loss suffered by the consumer.

Such restitution may be ordered in addition

to the penalties provided by these guidelines

without demonstration of aggravating factors

set forth in rule 61G4-17.002, and to the

extent that such order does not contravene

federal bankruptcy law.

42. As to aggravating or mitigating circumstances, Rule

61G4-17.002, Florida Administrative Code, provides in pertinent

part:

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 severity of the offense.

(4) The danger to the public.

(5) The number of repetitions of offenses.

(6) The number of complaints filed against

the licensee.

(7) The length of time the licensee has

practiced.

(8) The actual damage, physical or

otherwise, to the licensee's customer.

(9) The deterrent effect of the penalty

imposed.

(10) The effect of the penalty upon the

licensee's livelihood.

(11) Any efforts at rehabilitation.

(12) Any other mitigating or aggravating

circumstances.

43. As to repeat violations, Rule 61G4-17.003, Florida

Administrative Code, provides in pertinent part:

(1) As used in this rule, a repeat violation

is any violation on which disciplinary action

is being taken where the same licensee had

previously had disciplinary action taken

against him or received a letter of guidance

in a prior case; and said definition is to

apply regardless of whether the violations in

the present and prior disciplinary actions

are of the same or different subsections of

the disciplinary statutes.

(2) The penalty given in the above list for

repeat violations is intended to apply only

to situations where the repeat violation is

of a different subsection of Chapter 489 than

the first violation. Where, on the other

hand, the repeat violation is the very same

type of violation as the first violation, the

penalty set out above will generally be

increased over what is otherwise shown for

repeat violations in the above list.

44. Several factors should be considered as aggravating and

mitigating circumstances. Considerable monetary damage was

suffered by Susan Casper. In the instant cases, Respondent has

two complaints filed against him. Respondent has been licensed

for a short period of time. A severe penalty would adversely

affect Respondent's livelihood; however, the damage suffered by

his customers adversely affected them economically. Respondent

has been previously disciplined by Petitioner, in which one of

the charges was a violation of Subsection 489.127(1)(k), Florida

Statutes (1995), abandonment of a construction project.

45. As to costs for investigation and prosecution, the

total costs have not been computed as yet. Fairness requires

that Respondent be provided an opportunity to address the issue

of costs when the costs have been finalized, which opportunity

may be provided to Respondent at the time that Petitioner

considers the instant cases for final agency action.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is

RECOMMENDED that the Department of Business and Professional

Regulation, Construction Industry Licensing Board enter a final

order and therein:

1. As to Case No. 99-0261, finding that Respondent violated

Subsection 489.129(1)(e), Florida Statutes (1997).

2. As to Case No. 98-4859, finding that Respondent violated

Subsection 489.129(1)(k), Florida Statutes (1997), in Count I;

and dismissing Count II.

3. Revoking Respondent's license.

4. Ordering Respondent to pay restitution to Susan Casper

in the amount of $19,688.00.

DONE AND ENTERED this 31st day of October, 2000, in

Tallahassee, Leon County, Florida.

___________________________________

ERROL H. POWELL

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 31st day of October, 2000.

COPIES FURNISHED:

Diane Snell Perera, Esquire

Department of Business and

Professional Regulation

401 Northwest 2nd Avenue, Suite N607

Miami, Florida 33128

Richard F. Hayes, Esquire

10300 Sunset Drive, No. 499

Miami, Florida 33173

Rodney L. Hurst, Executive Director

Construction Industry Licensing Board

Department of Business and

Professional Regulation

7960 Arlington Expressway, Suite 300

Jacksonville, Florida 32211-7467

Barbara D. Auger, General Counsel

Department of Business and

Professional Regulation

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.