Judges: J. LAWRENCE JOHNSTON
Agency: Department of Business and Professional Regulation
Latest Update: Sep. 07, 1988
Summary: Respondent falsely stated he was licensed roofer while license inactive. Also, gross negligence and incompetence. Respondent's father guilty of loaning license to son.
87-2662STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
DEPARTMENT OF PROFESSIONAL ) REGULATION, )
)
Petitioner, )
)
vs. ) CASE NO. 87-2662
)
HOWARD E. MONTGOMERY, )
)
Respondent. )
) DEPARTMENT OF PROFESSIONAL ) REGULATION, )
)
Petitioner, )
)
vs. ) CASE NO. 87-2991
)
TERRY L. MONTGOMERY, )
)
Respondent. )
)
RECOMMENDED ORDER
Before J. Lawrence Johnston, Hearing Officer, Division of Administrative Hearings.
Jack Larkin, Esquire, of Tampa, for Petitioner. Howard E. Montgomery, of Tampa, pro se.
Terry L. Montgomery, of Brandon, pro se.
Final hearing in this case was held in Tampa on June 9, 1988. The issue was whether the respondents, Howard E. Montgomery and Terry L. Montgomery, are guilty, as charged in administrative complaints filed against them by the Petitioner, the Department of Professional Regulation (DPR), of various violations of the law applicable to building contractors. In Case No. 87-2662, the DPR charged that Howard Montgomery violated Section 489.129(1)(m), Florida Statutes (1987)(gross negligence, incompetence, misconduct, fraud, or deceit in the practice of contracting). In Case No. 87-2991, the DPR charged that his son, Terry Montgomery, violated that section, as well as Section 489.129(1)(j)(failure to renew a license and working with an inactive license) and (failure to discharge supervisory duty as qualifying agent), Florida Statutes (1987)
Factually, the DPR alleged essentially that Howard loaned his license to his son, Terry, whose license was inactive, that Terry represented himself to be a licensee and entered into a contract on behalf of his construction company to build a residence, that Howard exercised no supervision over the construction
and that, due to deficiencies in Terry's supervision over the construction project, the construction, especially the roof, was seriously substandard.
After the hearing, the parties ordered the preparation of a transcript and were given ten days from the filing of the transcript to file proposed recommended orders. The transcript was filed on July 25, 1988, making proposed recommended orders due by August 4, 1988. However, by unopposed motion, the respondents asked for and were given until August 8, 1988, for the parties to file their proposed recommended orders, making this Recommended Order due on or before September 7, 1988. Explicit rulings on the parties' proposed findings of fact may be found in the attached Appendix To Recommended Order, Case Nos. 87- 2662 and 87-2991.
FINDINGS OF FACT
At all times material, the respondent, Howard E. Montgomery, was a licensed contractor having been issued license number CG C010122 by the State of Florida.
At all times material, the respondent, Terry L. Montgomery, Howard's son, was a licensed contractor having been issued licenses numbered CB C012474 and CP C039916 by the State of Florida.
On or about December 29, 1983, Mr. and Mrs. Chamberlain entered into a construction contract with Terry L. Montgomery, for Terry Montgomery Building Contractors, to build the Chamberlains a house at 6702 - 113th Avenue in Temple Terrace. The cost of construction under the contract was $62,900.
At all times during the negotiation of that contract and at the time of the signing of that contract, Terry L. Montgomery represented that he had a license to build homes in the State of Florida. The contract itself states that Terry L. Mongomery is a building contractor and State-certified.
In fact, at the time he negotiated and signed the Chamberlain contract, and through October, 1985, Terry Montgomery's license was inactive, not having been renewed as required.
When it came time to pull a building permit on the Chamberlain job, Terry asked his father, Howard, to use the latter's license to pull the permit since Terry's license had not been renewed and was inactive. The older Montgomery agreed.
On or about February 23, 1984, Howard authorized Terry to pull permits from the City of Temple Terrace in his name, and Terry pulled a permit for the Chamberlain job at 6702 - 113th Street, Temple Terrace, in Howard's name and listing Howard as the contractor.
Construction proceeded without any supervision being exercised by Howard until problems developed during construction, including problems with the roof.
During preparation for installation of the roof trusses, Terry did not assure that the trusses were marked so that the left side of the trusses, as manufactured, consistently was the left side of the trusses, as installed, as a contractor responsible for construction of a roof using pre-manufactured trusses should do. The trusses were supposed to be symmetrical. But, as commonly occurs during manufacture, although within manufacturing tolerances (and
therefore not interfering with installation of the ridge cap), the trusses were not exactly symmetrical. Because Terry did not mark the trusses and some were installed "backwards" there roof exhibited a "rolling" or "wave" effect.
Because the roof design called for a large expanse of unbroken roof surface, especially on the front half of the house, the "rolling" or "wave" effect was magnified and unacceptable.
In addition, the construction drawings Terry Montgomery followed did not clearly show a support beam across the entrance area in the front of the house, as it should have to be structurally sound. The contractor had a responsibility to know that the construction, without a support beam in that location, would be insufficient and to so advise the Chamberlains. Instead, Terry ordered excessively cantilevered trusses to be manufactured for that portion of the roof and installed the trusses without a support beam. The construction was inadequate, and the roof eave sagged in that location.
In addition, some of the wood decking supporting the roofing material was nailed one to another without underlying support from a truss or structure connected to a truss. In these relatively isolated locations, the wood decking sagged.
In isolated places on the roof, some of the roof shingles were nailed in only three places, instead of the manufacturer's specified four, and some were nailed incorrectly or in incorrect places on the shingle, according to the manufacturer's specifications. As a result, some of the shingles began to curl and fray within months of delivery of the home to the Chamberlains.
Flashing, particularly ion the area of the chimney, was not installed correctly, resulting in leaks that had to be fixed.
In June and July, 1984, Howard Montgomery became involved in troubleshooting construction problems, including problems with the roof. He met with the Chamberlains, observed construction, investigated complaints on the Chamberlains' "punch-lists," including roof leaks, and assured the Chamberlains that Terry would correct the noted deficiencies to the Chamberlains' satisfaction.
The construction contract provided that all work on the Chamberlains' house would be completed in a professional manner. The contract also provides for an all-inclusive one-year warranty.
The closing took place on October 18, 1984. At the closing, Terry Montgomery agreed that he would honor his one-year warranty and after closing provide the Chamberlains with a chimney cap.
The problems that developed with the roof during construction continued during the warranty period. The shingles began to curl and fray within six months after occupancy, the "rolling" or "wave" effect to the roof remained, and there were leaks around the chimney area and the clere story area.
Beginning in November, 1984, right after they had moved in and right after the first rain, Mrs. Chamberlain tried to call Howard Montgomery at his home and former place of employment and attempted to call Terry Montgomery by leaving messages on his machine.
Terry Montgomery went to the Chamberlain residence sometime in November, 1984, right after they moved into the house because, after the first rain, the leaks were obvious.
When Terry Montgomery went to the residence in November, 1984, he looked at the leaks and said that he did not have the tools with him that day to fix them and that he would come back.
When Terry Montgomery did not return, Mrs. Chamberlain continued to call him, and he finally returned in February, 1985, and did some caulking.
In response to a May 22, 1986, letter from the Chamberlains, Terry Montgomery returned to the house sometime in August, 1986, with a hammer and caulking gun.
On several occasions, Terry Montgomery indicated that he would have some professionals look at the roof, but he never did.
During the conversations between Mrs. Chamberlain and Terry Montgomery, Terry Montgomery took the position that he was there just to fix the leaks, that the appearance of the roof did not have anything to do with the leaks, that the "rolling" of the roof and the shingles lifting had nothing to do with the leaks, that the truss problem did not have anything to do with the leaks, and that he was not going to fix those items. He was relying on his version of the settlement, at closing, of the dispute between him and the Chamberlains concerning the $2,500 the Chamberlains had withheld from the contract price. This dispute eventually was submitted to the state circuit court for resolution, resulting in a judgment which is now on appeal.
Howard Montgomery took the position that he was not responsible for his son's work, despite having loaned his license to his son, but that he gratuitously offered to help resolve problems Terry was having during construction. He, too, was of the view that the parties had resolved their disputes at closing and that, after closing, he had no further responsibility and Terry's responsibility was to fix leaks and put on a chimney cap.
In August or September, 1986, the Chamberlains attempted to get bids to repair the roof. They contacted at least four roofing contractors for bids. The roofing contractors that responded indicated that it would cost a substantial sum to correct the problems and that, even if the problems were corrected, they could not give the Chamberlains a warranty for the work.
As a result of the leaks in the roof, there was damage to drywall and staining around the chimney, in the foyer area and underneath the clere story windows.
Because of a defect in the construction of the roof, the wall in the interior of the house under the clere story window bows out about three degrees.
CONCLUSIONS OF LAW
Section 489.129(1), Florida Statutes. (1987), provides in pertinent part:
The board may revoke, suspend, or deny
the issuance or renewal of the certificate or registration of a contractor and impose an
administrative fine not to exceed $5,000, place a contractor on probation, or reprimand or censure a contractor if the contractor, or if the business entity or any general partner, officer, director, trustee, or member of a business entity for which the contractor is a qualifying agent, is found guilty of any of the following acts:
* * *
(j) Failure in any material respect to comply with the provisions of this act.
* * *
(m) Upon proof that the licensee is guilty of fraud or deceit or of gross negligence, incompetency, or misconduct in the practice of contracting.
Terry Montgomery violated Section 489.129(1)(m) in two respects: first, he falsely represented to the Chamberlains that he was a licensed contractor when, in fact, his license was on inactive status; second, his performance of the Chamberlain contract was grossly negligent and exhibited incompetence in several areas of roof construction. As to the latter, Terry Montgomery's failure to fix roof leaks in a manner satisfactory to the Chamberlains under the warranty he gave them is a matter more properly decided in the courts; however, the roof construction itself--including installation of the trusses, failure to notify the Chamberlains of the need for a support beam over the entrance area, and the rest--is grounds for discipline under this section regardless whether Terry Montgomery performed his "warranty."
Howard Montgomery violated Section 489.129(1)(m) by loaning his license to his son. While the circumstances would tend to mitigate discipline to be imposed, they do not alter the misconduct in the practice of contracting in which Howard Montgomery willingly engaged.
As for Section 489.129(1)(j), Florida Statutes (1987), Section 489.119(1), Florida Statutes (1987), provides that a licensee such as Terry Montgomery, who qualified Terry Montgomery Building Contractors, must be:
legally qualified to act for the business organization in all matters
connected with its contracting business and [have] authority to supervise construction undertaken by such business organization.
Section 489.105(4), Florida Statutes (1987), provides:
"Qualifying agent" means a person who possesses the requisite skill, knowledge, and experience, and has the responsibility, to supervise, direct, manage, and control the contracting activities of the business entity with which he is connected; who has the responsibility to supervise, direct, manage and control construction activities on a job which he has obtained the building permit; and whose technical and personal qualifications have been determined by
investigation and examination as provided in this act, as attested by the department.
The law is clear that Sections 489.119(1) and 489.105(4) impose on qualifying agents for a contractor the statutory duty to supervise the contractor's work. Complete failure to supervise the contractor's work is, therefore, a violation. See Hunt v. Dept. of Prof. Reg., 444 So.2d 997 (Fla. 1st DCA 1983); Alles v.
Dept. of Prof. Reg., 423 So.2d 624 (Fla. 5th DCA 1982). Sections 489.119(1) and 489.105(4) do not form the basis of a separate violation for simple negligence in supervising a construction job under Section 489.129(1)(j), Florida Statutes (1987). But inadequate supervision will subject a qualifying agent to discipline under Section 489.129(1)(m) if it is incompetent or grossly negligent, as found in this case.
In addition, Terry Montgomery clearly failed to comply with Chapter 489, in violation of Section 489.129(1)(j), by practicing contracting without an active license. See Sections 489.115 and 489.117(1), Florida Statutes (1987).
Rule 21E-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 the other provisions of this Chapter.
* * *
(7) 489.115: Contracting with a delinquent license. First violation, letter of guidance; repeat violation, $250 to $750 fine.
* * *
(11) 489.129(1)(m): Misconduct by
failure to reasonably honor warranty. First violation, $250 to $750 fine; repeat violation, $500 to $1500 fine and one year suspension.
* * *
(18) 455.227(1)(a): Fraud, deceit, misleading, or untrue representations. First violation, $500 to $1500 fine; repeat violation, revocation.
489.129(1)(m): Gross negligence, incompetence, and/or misconduct, fraud or, deceit.
Causing no monetary or other harm to licensee's customer, and no physical harm to any person. First violation, $250 to $750 fine; repeat violation, $1000 to $1500 fine and 3 to 9 month suspension.
Causing monetary or other harm to licensee's customer, or physical harm to any person. First violation, $500 to $1500 fine; repeat violation, $1000 to $5000 fine and suspension or revocation.
* * *
(21) The absence of any violation from this Chapter shall be viewed as an oversight, and shall not be construed as an indication that no penalty is to be assessed.
Rule 21E-17.002, Florida Administrative Code, provides:
Circumstances which may be considered
for the purposes of mitigation or aggravation of penalty shall include, but are not limited to, the following:
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.)
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.
The severity of the offense.
The danger to the public.
The number of repetitions of offenses.
The number of complaints filed against the licensee.
The length of time the licensee has practiced.
The actual damage, physical or otherwise, to the licensee's customer.
The deterrent effect of the penalty imposed.
The effect of the penalty upon the licensee's livelihood.
Any efforts at rehabilitation.
Any other mitigating or aggravating circumstances.
Rule 21E-17.003, Florida Administrative Code, provides:
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 (i) regardless of the chronological relationship of the acts underlying the various disciplinary actions, and (ii) regardless of whether the violations in the present and prior disciplinary actions
are of the same or different subsections of the disciplinary statutes.
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.
Rule 21E-17.004, Florida Administrative Code, provides:
Where the above guideline states that
the first violation shall be dealt with by letter of guidance, this is premised upon the assumption that the violation being discussed is the only violation for which probable cause exists. Where said assumption is not accurate, and there is probable cause on other violations in the same or other cases being concurrently considered, then the "letter of guidance" violations shall normally be charged by administrative complaint, and in such cases the portion of the penalty dealing with said violations shall be a reprimand.
Rule 21E-17.005, Florida Administrative Code, provides:
Where several of the above violations shall occur in one or several cases being considered together, the penalties shall normally be cumulative and consecutive.
Rule 21E-17.007, Florida Administrative Code, provides:
Probation may also be assessed in any
case where, in the board's opinion, it is advisable for the public welfare, in order to assure that the licensee operates properly and within the law in the future, to require the licensee to report to the Board periodically, or to otherwise serve a probationary period.
RECOMMENDATION
Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Construction Industry Licensing Board enter a final order: in Case No. 87-2662, holding Howard E. Montgomery guilty violating Section 489.129(1)(m), Florida Statutes (1987), and imposing a $1,000 fine; and in Case No. 87-2991, holding Terry L. Montgomery guilty of violating Section
489.129(1)(j) and (m), Florida Statutes (1987), reprimanding him for the violations, and imposing on him a $2,500 fine.
RECOMMENDED this 7th day of September, 1988, in Tallahassee, Florida.
J. LAWRENCE JOHNSTON Hearing Officer
Division of Administrative Hearings The Oakland Building
2009 Apalachee Parkway
Tallahassee, Florida 32399-1550
(904) 488-9675
Filed with the Clerk of the Division of Administrative Hearings this 7th day of September, 1988.
APPENDIX TO RECOMMENDED ORDER, CASE NOS. 87-2662, 87-2991
To comply with Section 120.59(2), Florida Statutes (1987), the following explicit rulings are made on the petitioner's proposed findings of fact (the respondents not having filed any):
1.-2. Accepted and incorporated.
3.-7. Accepted and, to the extent necessary, incorporated.
8. Accepted but outside the administrative complaints and unnecessary.
9.-11. Accepted and incorporated.
12. Unnecessary.
13.-16. Accepted and incorporated.
17. Accepted but unnecessary.
18.-19. Accepted and, to the extent necessary, incorporated.
Accepted and incorporated.
Rejected in part. It was not proven that either of the Montgomerys cut the trusses and left them cut.
Others who later worked on the roof may have done it. Otherwise, accepted and incorporated.
Rejected in part. It was proven that Terry was contacted within the warranty period but not that Howard was.
Accepted and incorporated.
24.-25. Rejected in part. It was not proven that she called Howard. Accepted and incorporated as to Terry.
26.-29. Accepted and incorporated.
30.-32. Accepted. As to Howard, unnecessary. As to Terry, incorporated to the extent necessary.
33.-34. Accepted and incorporated.
35.-36. Rejected in part. Terry fixed the leaks temporarily. In time, leaks started again. Leaks resumed in September, 1986, during Hurricane Elena. Otherwise, accepted but unnecessary.
37.-41. Accepted and incorporated.
42.-43. Accepted and incorporated to the extent necessary.
Accepted but subordinate to facts found.
Rejected in part. The specifics of Howard's promise are reflected in the Findings of Fact. Otherwise, accepted and, to the extent necessary, incorporated.
Accepted and, to the extent necessary, incorporated.
Unnecessary. (It was not proven that Terry did not install a chimney cap, just that the Chamberlains had a new one put on.)
Accepted but irrelevant (since it included the chimney cap and perhaps other work not directly related to Terry's work) and unnecessary.
Subordinate to facts found.
Subordinate and unnecessary. 51.-53. Subordinate to facts found.
Irrelevant and unnecessary.
Subordinate and unnecessary.
Subordinate to facts found.
Rejected as not proven. All spacings were 24" except one 29 1/2" and one 26 1/2". The evidence was that the Southern Building Code maximum separation is 32".
58.-59. Subordinate to facts found
Accepted but unnecessary.
Rejected.
Accepted and incorporated. 63.-64. Subordinate and unnecessary.
65. Rejected as to Howard. As to Terry, accepted and incorporated.
66.-68. Accepted and incorporated.
Subordinate to facts found.
Cumulative.
71.-72. Accepted and incorporated.
COPIES FURNISHED:
Jack Larkin, Esquire 806 East Jackson Street Tampa, Florida 33602
Howard E. Montgomery Post Office Box 5334 Tampa, Florida 33675
Terry E. Montgomery Post Office Box 681 Brandon, Florida 33511
Fred Seely, Executive Director Construction Industry Licensing Board Post Office Box 2
Jacksonville, Florida 32201
Bruce D. Lamb, Esquire General Counsel
Department of Professional Regulation
130 North Monroe Street Tallahassee, Florida 32399-0750
Docket for Case No: 87-002662
Orders for Case No: 87-002662
| Issue Date |
Document |
Summary |
|
Sep. 22, 1989 |
Agency Final Order
|
|
|
Sep. 07, 1988 |
Recommended Order
|
Respondent falsely stated he was licensed roofer while license inactive. Also, gross negligence and incompetence. Respondent's father guilty of loaning license to son.
|
