The Issue Whether the Respondent committed the violations alleged in the Administrative Complaint dated August 23, 2007, and, if so, the penalty that should be imposed.
Findings Of Fact Based on the oral and documentary evidence presented at the final hearing and on the entire record of this proceeding, the following findings of fact are made: The Department is the state agency responsible for registering and regulating motor vehicle repair shops. See §§ 559.904, .920, and .921, Fla. Stat. Ms. Gore is the current president and sole shareholder of American Auto Glass. She is also its only employee. American Auto Glass's physical address is 873 Orchid Drive, Plantation, Florida 33317, which is Ms. Gore's residence. American Auto Glass's business records are kept at this address, and its invoices and billings to various insurance companies are prepared there. All business correspondence and payments go to Post Office Box 17484, Fort Lauderdale, Florida 33318; and its the business telephone is Ms. Gore's cell phone. American Auto Glass is a "Sub-Chapter S" corporation. Prior to June 2006, Ms. Gore and Ana Diaz jointly owned American Auto Glass; Ms. Gore purchased the business in June 2006, and Ms. Diaz has not been involved in the business since that time. American Auto Glass is an approved vendor of automobile glass replacement claims for several insurance companies, and it acts as a broker handling automobile glass replacement claims for persons insured by those insurance companies. When an insurance company receives a claim from an insured for replacement of damaged automobile glass, the insurance company assigns the claim to American Auto Glass. American Auto Glass receives the assignment either through a telephone call from the insurance company's claims department or in a facsimile transmission from a glass vendor, that is, an administrator under contract with the insurance company to sub- contract automobile glass replacement claims to other agents in the field. The insurance company or glass vendor tells its insureds that it will handle the assignment of the claims and does not refer its insureds to American Auto Glass. Rather, it advises the insureds that they will be contacted by the person who will do the work of replacing the glass. Once American Auto Glass receives the claim referral, Ms. Gore contacts an independent sub-contractor who will do the installation of the automobile glass replacement. The sub- contractors used by American Auto Glass also work for other companies. As part of the assignment, American Auto Glass receives complete information regarding the type of vehicle, the damages, and the materials that need to be replaced, which Ms. Gore transmits to the sub-contractor. The sub-contractor assigned the installation job contacts the insured and arranges an appointment with the insured to bring in the car to the sub-contractor for the replacement installation. American Auto Glass does not, at any time, have possession of the vehicles for which it arranges automobile glass replacement installations, nor does it share a business location with the sub-contractors it engages to do the automobile glass replacement installations. Some sub-contractors used by American Auto Glass for automobile glass replacement installations furnish both parts and labor. If the sub-contractor does not furnish the parts but only the labor, the sub-contractor orders the necessary parts from AGS Auto Glass Export or another parts supplier. American Auto Glass has an account with AGS Auto Glass Export. The sub-contractor picks up the necessary parts for a job, and AGS Auto Glass Export bills American Auto Glass directly for these parts. Once the glass replacement installation is completed, the sub-contractor either sends an invoice to American Auto Glass or contacts Ms. Gore and provides the vehicle information required by the insurance company and the cost of the installation. American Auto Glass bills the insurance company for the work done, and the insurance company pays American Auto Glass. American Auto Glass pays the sub-contractors for parts and labor if the sub-contractor has furnished the parts necessary for the replacement or for labor only if the sub- contractor has ordered the parts from AGS Auto Glass Export, the cost of which are billed directly to American Auto Glass. Ms. Gore adds a certain percentage to these charges when she bills the insurance company. American Auto Glass's primary sub-contractor does not furnish parts, and he has a negotiated price with American Auto Glass for each installation. American Auto Glass acts exclusively as a broker arranging with independent sub-contractors for the automobile glass replacement installations on behalf of insurance companies.2 American Auto Glass at no time has any contact with the insurance company's insureds or their vehicles. At one time prior June 2006, when Ms. Gore purchased sole interest in the business, American Auto Glass employed an "installer" who did the actual work of installing automobile glass replacements. During this time, American Auto Glass was registered with the Department as a motor vehicle repair shop. The registration expired on May 29, 2007.3 The evidence presented by the Department is not sufficient to establish that American Auto Glass is a motor vehicle repair shop whose business is motor vehicle repairs. Rather, American Auto Glass acts as a middleman between insurance companies and motor vehicle repair shops that do the actual glass replacement installation. Its only physical location is Ms. Gore's residence, and the business activities that take place at that location do not include any activities related to the actual work of motor vehicle repair.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Agriculture and Consumer Services enter a final order dismissing the Administrative Complaint filed against American Auto Glass Network, Inc. DONE AND ENTERED this 11th day of March, 2008, in Tallahassee, Leon County, Florida. S PATRICIA M. HART Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 11th day of March, 2008.
The Issue May Respondent's contracting license be revoked, suspended or otherwise disciplined? EVIDENCE AND PROCEDURE Petitioner presented the testimony of the following witnesses: Randall F. Patterson; Bob R. Pope; Roberta Ballenger; Joel A. Dean; and Victor F. Boucher. Petitioner's exhibits number one through fourteen were admitted into evidence. Respondent was not present, put on no evidence, and submitted no after- filed proposals. Petitioner filed the transcript of proceedings on October 17, 1985, and filed proposed findings of fact and conclusions of law styled "Petitioner's Proposed Recommended Order" on November 8, 1985. Although additional time for filing proposals was neither applied-for nor granted, these proposals have been considered, and are ruled on within the Appendix to this Recommended Order.
Findings Of Fact Respondent is, and at all times material to the Administrative Complaint, was a registered residential contractor in the State of Florida having been issued license number RR 0032683. On August 7, 1982 Respondent d/b/a Future Homes of America Construction Company, Inc. contracted with Victor Boucher for the construction of a single family residence at 822 Fairview Avenue, Altamonte Springs, Florida. Section 14.5 of the Fixed Price Construction Agreement provided: The owner will, as agreed to by the contractor, request the contractor to obtain payment and performance bonds, issued by a surety and in amounts acceptable to owner, guaranteeing the full performance of contractor's payment and performance obligations hereunder. (Pet. Exh. 1, Pet. Exh. 9). Article 14.5 of the construction contract required Respondent to obtain a payment and performance bond. Respondent failed to obtain a payment and performance bond. During the construction of the home, Boucher asked Respondent whether a payment and performance bond had been obtained. Boucher wanted to see the bond because he was concerned about Respondent actually finishing the project. In response to Boucher's request, Respondent indicated a bond had not been obtained; however, Respondent assured Boucher that a payment and performance bond would be obtained. On April 7, 1953 Respondent and Boucher obtained a construction loan in the amount of $54,400.00 from the American Savings and Loan Association of Florida, Winter Park, Florida. The construction loan was secured by a mortgage on the property located at 522 Fairview Avenue, Altamonte Springs, Florida. The proceeds of the construction loan were paid out in draws. American Savings and Loan Association of Florida paid the contract draws directly to Respondent. On August 29, 1953 Respondent executed an affidavit in support of final construction draw. American Savings and Loan Association of Florida required the affidavit as a precondition to making final disbursement to Respondent of the $4,338.50 remaining on the construction loan. The affidavit provided in pertinent part: 4. The undersigned swears that construction of the improvements to the PROPERTY has been fully completed in accordance with the plans and specifications therefore,...that all persons furnishing labor or materials, engaged as subcontractors or contracting directly with the owner of the PROPERTY in connection with said improvements, except the following, identified by name, address and amount due: [none known] have been paid in full and no person, firm or corporation has or holds any claim or lien against the PROPERTY for labor or material in connection with said improvements. Boucher was also required to sign the affidavit referred-to in Paragraph 5, above, in support of the final construction draw. Boucher's signature was required in support of the affidavit for final construction draw because Boucher had previously contacted the savings and loan association with regard to freezing the disbursement of construction funds. His request to freeze disbursements was made because Boucher was under the impression Respondent had moved to Miami and Boucher's attempts to contact Respondent had proven unsuccessful. Prior to executing the affidavit, Respondent told Boucher that certain subcontractors had not been paid. Nonetheless, Boucher, contrary to advice of legal counsel signed the affidavit knowing that certain subcontractors had not been paid and therefore knowing he was making a false affidavit. Respondent convinced Boucher that the final draw would be utilized to satisfy the remaining subcontractors and materialmen. Respondent's Answer pleads accord and satisfaction as an affirmative defense that Boucher agreed to pay off all bills of Overhead Door Co., Future Plumbing, Quality Fiberglass, and Patterson Well Drilling but Boucher's testimony that he, Boucher, insisted Respondent meet him to pay off all subcontractors out of the final draw and Respondent did not do so, overcomes any burden of proof problems raised by this affirmative defense. (See "Conclusions of Law.") On November 29, 1983 Patterson Well Drilling Company filed a claim of lien against Boucher's property. The claim of lien represented materials and labor furnished to Respondent in connection with the construction of the Boucher residence. The claim of lien was in the amount of $1,510.00. Although the claim of lien under oath of President Randall F. Patterson states that the services were provided between September 9 and September 12, 1983, Boucher testified that Patterson's services were actually provided prior to the August 29, 1983 execution of the affidavit in support of final construction draw. Randall F. Patterson's testimony tends to support this timeframe set out by Boucher, and although the difference in dates between Mr. Patterson's affidavit within the claim of lien and his oral testimony at formal hearing might otherwise present a credibility issue, his explanation at hearing coupled with Boucher's explanation of how he relates the dates persuade the undersigned that Patterson Well Drilling Company installed the well prior to August 29, 1983. Respondent failed to pay Patterson prior to executing the bank affidavit. Respondent also failed to pay Patterson from the funds received in the final construction draw. Boucher paid Patterson Well Drilling Company for the services represented by the claim of lien. A check substantiates that Boucher actually paid Patterson the amount of $1,562.40. Respondent contracted with Quality Fiberglass Industries to provide materials and services in connection with the construction of the Boucher residence. Respondent failed to fully reimburse Quality Fiberglass for the services and materials provided. On August 19, 1953 Quality Fiberglass Industries filed a claim of lien against the Boucher property for $219.00. Mr. Pope, Quality's representative, testified he was actually owed $325.00 and he has never been paid. Boucher testified he was required to pay the Quality Fiberglass lien prior to the closing on the home. There is no documentary evidence to reconcile this issue and in the absence of clear evidence that Boucher paid the fee, payment of the lien or the difference in amount is not proved. Overhead Door Company provided services to Respondent d/b/a Future Homes of America, Inc. in connection with the construction of the Boucher residence. On July 11, 1983 Overhead Door Company installed a garage door. Although contacted on several occasions, Respondent failed to pay Overhead Door Company $356.00 for the services provided. Overhead Door Company has not otherwise been reimbursed for the services provided. The construction plans for the Boucher home indicated a tar and gravel roof would be constructed over the patio. However, with the acquiescence of Mr. Boucher, Respondent placed rolled roofing rather than tar and gravel roofing on the patio. The construction plans were submitted in conjunction with the building permit application. According to Joel A. Dean, the county building department currently relies upon the construction plans in issuing the building permit. A contractor currently is required to notify the building department of any change or deviation from the submitted plans. This requirement enables the building department to control the type of building construction, the occupancy and use of the building, and ensures the buildings are constructed safe and watertight. Respondent did not notify the building department concerning the agreed roofing change as would be required by current requirements and requirements at the pertinent times under Section 114 of the Standard Building Code.
Recommendation That the Florida Construction Industry Licensing Board enter a final order suspending Respondent's contracting license for a period of two (2) years and imposing an administrative fine in the amount of $1,000.00, provided, however, if Respondent submits to the Board competent and substantial evidence of payment to Overhead Doors Co. of $356.00 and payment to Quality Fiberglass of $219.00, the period of suspension shall be reduced to one (1) year. DONE and ORDERED this 31st day of December, 1985, in Tallahassee, Florida. ELLA JANE P. DAVIS Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 31st day of December, 1985. APPENDIX TO RECOMMENDED ORDER, CASE NO. 84-3835 Rulings on Petitioner's Proposed Findings of Fact According To the Paragraph Number assigned by Petitioner. Accepted. Accepted. Accepted. Accepted. Accepted. Accepted. Rejected as not supported by the credible competent substantial evidence in the record as a whole as set out more fully in Finding of Fact Paragraph 9. Accepted. Accepted. Accepted. COPIES FURNISHED: W. Douglas Beason, Esquire Fred M. Roche, Secretary Department of Professional Department of Professional Regulation Regulation 130 North Monroe Street 130 North Monroe Street Tallahassee, Florida 32301 Tallahassee, Florida 32301 Michael Anguelo James Linnan 1415 West 28th Street Executive Director Apartment 4 Construction Industry Hialeah, Florida 33010 Licensing Board Post Office Box 2 Jacksonville, Florida 32202
The Issue The issues framed by the Amended Administrative Complaint are whether Mr. Chandwani was guilty of negligence in the practice of engineering with respect to drawings prepared for the renovation of a house, and whether he failed to obtain a certificate of authorization for a corporation which he owned which offered engineering services to the public.
Findings Of Fact The notice of the hearing was sent to Mr. Chandwani at the address disclosed on the Election of Rights form in which he demanded a formal hearing on the allegations made in the Administrative Complaint filed by the Department of Professional Regulation. Mr. Chandwani did not, however, appear at the hearing. Mr. Chandwani is licensed by the Board of Professional Engineers holding registration #PE0017049. Mr. Chandwani is the president of International Engineers and Builders, Inc., a Florida corporation whose Articles of Incorporation were filed with the Secretary of State on July 8, 1980. Mr. Chandwani, on behalf of International Engineers and Builders, Inc., entered into a contract on November 28, 1984, with Peter Persaud for the preparation of sealed plans for the rehabilitation of a property located at 22740 S.W. 179th Place, Miami, Florida. Mr. Persaud had purchased the property while it was in foreclosure. The property had come under the jurisdiction of the Dade County Code Enforcement Department due to defects in the structure, and Mr. Chandwani was engaged to provide drawings for the rehabilitation of the property. The plans originally delivered to Mr. Persaud by Mr. Chandwani were neither signed nor sealed. When taken to the Dade County Building and Zoning Department they were found to be deficient not only because they were not signed and sealed, but because they did not meet the criteria of the South Florida Building Code. For example, a cabana shown on the plans should not have been located on the property line. Eventually Mr. Chandwani provided signed and sealed plans, but only after a demand to do so had been made by Mr. Persaud's attorney. The testimony of James Owen Power, a consulting engineer who testified about the plans on behalf of the Board of Professional Engineers, has been accepted. The plans submitted are deficient in that they do not contain complete information on all components of the structure. For example, there is no design specified for roof trusses, nor is there any design for assembling trusses into a roof system. The plans are also confusing and contradictory in that Section A on sheet 1 of the plans appears to show a wall of a garage as part of an existing building but the plans indicate elsewhere that the garage is new, and nonexisting. There is also a confusing note with respect to a "cathedral ceiling" in the construction of the house, for there is no definition of what a cathedral ceiling is. Moreover, the drawings appear to show a level ceiling, not a cathedral ceiling. It is not clear whether the garage is to have any ceiling. Although Mr. Chandwani contracted with Mr. Persaud through International Engineers and Builders, Inc., International Engineers and Builders, Inc., has never been issued a certificate of authorization under the provision of Chapter 471, Florida Statutes.
Recommendation It is recommended that a final order be entered finding Mr. Chandwani guilty of negligence in the practice of professional engineering and of offering engineering services through an entity which does not hold a certificate of authorization, that he be reprimanded, fined $2,000 and his licensure be placed on probation for a period of two years. The fine shall be paid within sixty (60) days of the entry of the final order. DONE and ORDERED this 11th day of April, 1988, in Tallahassee, Florida. WILLIAM R. DORSEY, JR. 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 11th day of April, 1988. COPIES FURNISHED: Arjan D. Chandwani 2560 Azalea Avenue Miramar, Florida 33025 Ray Shope, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 Fred Seeley Executive Director Construction Licensing Board Department of Professional Regulation Post Office Box 2 Jacksonville, Florida 32201 William O'Neil General Counsel Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750
The Issue By its Administrative Complaint filed on January 15, 1985, the Department of Professional Regulation charged Respondent with violations of Section 489.129(1)(h)(k) and (m) Florida Statutes, relating to diversion of funds, abandonment of a construction project and gross negligence, incompetency or misconduct. The issue in this proceeding is whether any violation occurred and, if so, what disciplinary action should be taken. The Respondent generally denies the charges. At the hearing, the Petitioner presented two witnesses: Don Riordan, the home-owner; and Stephen Douglas Gates, an employee of Brooks Glass Company who did an estimate of cost of completion for the project. Four Petitioner's exhibits were admitted without objection: a check for payment by Don Riordan to A1 Ruocco, the Brooks Glass estimate, letter from William Bambach to A1 Ruocco and letter from Bob Bambach to Donald Riordan. A fifth exhibit was withdrawn. The Respondent testified on his own behalf and presented no other witnesses. His eight exhibits included the contract and a series of letters between himself and Robert Bambach. At the outset of the hearing, Petitioner moved for leave to file the testimony of Robert Bambach at a later date, due to unsuccessful attempts to serve a subpoena. The Respondent objected and the motion was denied. Petitioner waited until two days before the hearing to attempt to serve the prospective witness even though the hearing had been scheduled since June and the location of the hearing had been established for two weeks. Petitioner filed its Proposed Recommended Order on November 1, 1985; none was filed by Respondent. The proposed findings of fact have been primarily adopted herein but are addressed more specifically in Appendix A, attached to this order.
Findings Of Fact The facts in this case are virtually uncontroverted, with the exception of the months and sequences of some events. At all times material to the Administrative Complaint, Respondent was a registered building contractor holding license number RB0030112, which license qualified River's Edge Construction Company, Inc., Melbourne, Florida. On March 11, 1983 a contract was entered between Albert Ruocco, President, River's Edge Construction Co., Inc. ("Ruocco") and Don Riordan, Jr., ("Riordan") to enclose a balcony with bronze awning windows and bronze tinted glass at Riordan's townhouse residence in Melbourne Beach, Florida. Ruocco and Riordan knew each other socially as Ruocco was a neighbor of Riordan's parents. Ruocco was recommended for the job by Riordan's parents. On March 31, 1983, Riorden paid Ruocco $1300.00 or the $1853.00 contract price. Riordan testified that Ruocco was doing him a favor because it was repair work and the principal amount of money was being paid up front to avoid a cash-flow problem on materials. (T-18). The idea was to get the work done as soon as possible. (T-16). Sometime around May or June 1983, the construction started with removal of existing screening and the installation of an aluminum kick plate and posts to hold the awning window frames. Sometime later the windows were put in for the first time. The actual work on the project was done by a Mr. Bambach, rather than Ruocco. What followed the first installation was a series of misadventures culminating in a lawsuit by Riordan and an $800.00 civil judgment against Ruocco. The work was never completed. The first windows installed were clear glass rather than tinted bronze. Riordan complained to Ruocco and the windows were removed within twenty-four hours. The windows were installed again, this time with film rather than tinted glass and Riordan called Ruocco the next day. Again the windows were removed immediately. Some time passed (by now it was early August) and bronze-tinted windows were installed. However, after a rain storm it became apparent that the installation was faulty, as the structure leaked. The metal strips had been damaged from the several removals. Riordan complained the third time and the windows were removed a third time. They were never replaced. Throughout this period Riordan was dealing with Ruocco, with whom he had the contract and Ruocco was dealing with Bambach, to whom he had given $800.00 as partial payment for the work. Relations between the individuals deteriorated as months passed and the windows were still not finally installed. Riordan called Ruocco about getting the work done and was told that Ruacco was having trouble with his worker. By the end of 1983 Riordan's attorney called Ruocco and said that the money had to be refunded. In the meantime, a stand-off had developed between Ruocco and Bambach, with Ruocco insisting that the work be completed prior to final payment and Bambach insisting that he be paid prior to re- installation of the windows. Bambach had taken the windows to a glass company to be fixed. Bambach alleged in his correspondence that Ruocco did not have the money to pay him, while Ruocco alleged that he tried to meet Bambach to give him the money but Bambach didn't show up. Ruocco testified that he possibly could have installed the windows himself but was trying to get Bambach to complete the job. (T-57). He further testified that he had two other persons look at the job but they wouldn't touch someone else's work. (T-58). Sometime in early 1984 Ruocco was made to understand that Riordan was not interested in waiting any longer for the project to be finished and wanted his money back.
Recommendation On the basis of the foregoing, I recommend that the Respondent be found guilty of misconduct as provided in Subsection 439.129(1)(m) Florida Statutes, and be reprimanded in accordance with Subsection 489.129(1) Florida Statutes. DONE and ORDERED this 12th day of November, 1985, in Tallahassee, Florida. MARY CLARK, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 12th day of November, 1985. APPENDIX In accordance with Section 120.59(2) Florida Statutes, the following are recommended rulings on proposed findings of facts submitted by Petitioner in this case. The numbered paragraphs below conform to the paragraphs proposed by Petitioner. These findings are incorporated in Recommended Order, paragraph 1. These findings are incorporated in Recommended Order, paragraphs 2 and 6. These finding are incorporated in Recommended Order, paragraph 3. These findings are incorporated in Recommended Order, paragraph 5. These findings are incorporated in Recommended Order, paragraph 5. These findings are incorporated in Recommended Order, paragraph 5. These findings are incorporated in Recommended Order, paragraph 7. The findings related to the estimate of Brooks Glass Company are irrelevant. The estimate was done approximately one and a half years after the contract was entered between Riordan and Ruocco. The witness from Brooks Glass who testified about the estimate could not relate the quality of Brooks' windows to those intended by Ruocco for the project. (T. 41-43). To the extent that these findings are proposed to show the extent to which the project was left uncompleted, the fact that the windows were never re- installed was admitted by Ruocco and is reflected in Recommended Order paragraphs 4 and 5. These findings are incorporated in Recommended Order paragraphs 7 and 8. COPIES FURNISHED: Fred Roche, Seeretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Salvatore A. Carpino, Esquire General Counsel Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Douglas Beason, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Mr. Albert J. Ruocco 604 Citrus Court Melbourne, Florida 32951
The Issue Whether Petitioner is entitled to recover attorney's fees and costs against Respondent and, if so, in what amount.
Findings Of Fact In July 1995, Petitioner, Richard Glass, resigned as the Right-of-Way Administrator for the Florida Department of Transportation (FDOT), District VI, in Miami, Florida. He immediately opened his own consulting firm called, Glass Land Acquisition Service Specialists, Inc. (Glass Acquisition, Inc.) and employed his mother, Josephine Glass, as a principal in the company. In February or March 1996, FDOT awarded Glass Acquisition, Inc., a professional services contract (Contract), under which Petitioner's company would provide services related to the acquisition of property for FDOT. The Contract was executed in June 1996. Pursuant to the terms of the Contract, Glass Acquisition, Inc., would be assigned projects as they became available and at the discretion of FDOT, and up to a value of $500,000.00 without the necessity of any further bidding. Among the unsuccessful competitors for this contract were Kaiser Real Estate Services and Post, Buckley, Schuh and Jernigan, Inc. Bids or proposals submitted by competing consultants for the Contract were first reviewed by FDOT's technical review committee. Richard Lineberger was a member of that committee which reviewed the bids or proposals submitted by Glass Acquisition, Inc., Kaiser Real Estate Services, and Post, Buckley, Schuh and Jernigan, Inc. At the time that Lineberger served on the technical review committee, he was living with Martha Budney, but they were not married. At the time the aforementioned bids or proposals were being reviewed and considered by FDOT, Martha Budney was a real estate appraiser who shared office space with Glass Acquisition, Inc. Ms. Budney was not associated with Glass Acquisition, Inc. However, Ms. Budney owned her own company and Richard Glass was a vice-president of Ms. Budney's company. When the final decision at FDOT on the Contract award was made, Gus Pego was employed by FDOT as Director of Operations. When the FDOT was reviewing bids or proposals relevant to the Contract, Gus Pego's brother was married to Richard Glass' sister. During the first half of 1996, Richard Glass was hired by the Turnberry Group to represent them in negotiations with FDOT for the acquisition of certain properties. These negotiations required the services of an appraiser. Martha Budney was the appraiser selected or hired to represent the property owners. For providing these appraisal services, Ms. Budney was paid by FDOT. During these negotiations, Ms. Budney and Petitioner shared office space. Richard Lineberger represented FDOT in the negotiations between the Turnberry Group and FDOT. While these negotiations were taking place, Ms. Budney and Mr. Lineberger were living together. In light of Petitioner's recent employment with the FDOT, the professional relationship of Petitioner and Ms. Budney, the personal relationship of Ms. Budney and Mr. Lineberger, and the "in-law" relationship between Gus Pego and Petitioner, some former and current FDOT employees were concerned that the Contract award to Glass Acquisition, Inc., was improper. They believed that these various relationships created a conflict of interest. In July 1996, after the Contract was awarded to Glass Acquisition, Inc., Jackie Yanks Gonzalez, a former FDOT employee and an employee of Kaiser Real Estate Services, contacted Maria Lopez, an acquisitions agent for FDOT who was working on the Turnberry Group Project. Ms. Gonzalez told Ms. Lopez that her employer was concerned because of the appearance of nepotism in the award of the $500,000.00 Contract to Glass Acquisition, Inc. Moreover, after the Contract was awarded, an anonymous telephone call was made to FDOT to complain about the Contract award. An inquiry into the matter by the FDOT in Tallahassee, Florida concluded that there was no impropriety in the awarding of the Contract to Glass Acquisition, Inc. Notwithstanding the finding of the FDOT that there was no impropriety in the awarding of the Contract to Glass Acquisition, Inc., several individuals, both former and current FDOT employees (the Group) remained concerned that the award of the Contract was improper. Although some of these individuals, particularly current FDOT employees, believed or suspected that there was some impropriety in the Contract award, they declined to press forward with the matter for fear of retaliation. One member of the Group, Maria Lopez, eventually became acquainted with Respondent, Eileen Moran. At that time and at all times relevant to this proceeding, Respondent was employed as an investigator with the Real Estate Section of the Florida Department of Business and Professional Regulation (DBPR). Prior to Respondent's employment with DBPR, she had been employed by the FDOT. Respondent's employment with the FDOT terminated in March 1992, after she was fired. Subsequently, Respondent filed a civil action in federal court against FDOT. Respondent prevailed in that matter. Ms. Lopez and other members of the Group approached Respondent for assistance in filing complaints with the Ethics Commission against several former and current FDOT employees. Ms. Lopez provided Respondent with information Lopez thought was relevant to the Group's belief that the Contract award to Glass Acquisition, Inc., was improper. At the time Ms. Lopez provided this information to Respondent, Ms. Lopez believed it was true, either based on her personal knowledge of its truth or on her belief that she obtained the information from reliable sources. That information included: That Richard Lineberger was living with Martha Budney. That Martha Budney was sharing office space with Richard Glass. That Petitioner was an officer in Martha Budney's corporation. That Petitioner had hired Martha Budney to do appraisal work with the Turnberry Group. That Richard Lineberger was representing FDOT in the Turnberry Group negotiation process. That Gus Pego was an "in-law" of Richard Glass. That Gus Pego's "in-law" relationship with Petitioner made Petitioner's mother, Josephine Glass, Gus Pego's mother-in-law. (Respondent interpreted the "in-law" relationship between Gus Pego and Petitioner as meaning Gus Pego was married to Glass' sister.) That Petitioner was asked by Jose Abreu to resign from FDOT because of his actions in spreading a rumor about an alleged affair between Mr. Abreu and Ms. Lopez. Relying upon the above information provided by Maria Lopez and others, Respondent drafted and sent a letter to Bonnie Williams, the Executive Director of the Ethics Commission, requesting an investigation into these alleged conflicts of interest and nepotism. In the process, she repeated the above representations of fact made by Maria Lopez and others in the Group. In the letter dated July 31, 1996, to Ms. Williams, Respondent specifically requested that the Ethics Commission investigate the Contract award by FDOT to Glass Acquisition, Inc. Respondent noted that Richard Glass was formerly employed by FDOT as District Right-of-Way Administrator, but had been asked to resign from that position in July 1995. Respondent's letter stated that she was a former FDOT employee, having left FDOT in March 1992. According to Respondent's letter, "It is my understanding from individuals who were also employed by FDOT at the time that Petitioner was asked to resign due to malfeasance." Moreover, in the letter, Respondent stated that she believed the Contract was wrongfully awarded to Richard Glass and such award was in violation of Sections 112.3135, 112.3185(6), Florida Statutes. Section 112.3135, Florida Statutes, addresses the employment of relatives by public agencies; Section 112.3185(6), Florida Statutes, prohibits agency employees from procuring contractual services for his agency from any business entity of which a relative is an officer, partner, director or proprietor or in which such officer or employee or his or her spouse or child, or any combination of them, has a material interest. Respondent's letter to the Ethics Commission stated that her allegation that the Contract had been wrongfully awarded to Glass was based on the following facts: The principals of Glass Land Acquisition Service Specialist, Inc., include Richard Glass and his mother Josephine Glass. They employ Martha Budney, who was also formerly employed by FDOT at District VI in Miami. Richard Lineberger, who was employed by FDOT as Deputy Right-of-Way Administrator, sat on the Selection Committee which evaluated on which submitted bids on this contract. Mr. Lineberger has been romantically involved with Martha Budney for quite some time. Gustavo Pego, who is currently employed by FDOT as Director of Operations, awarded this contract to Glass Land Acquisition Service Specialist, Inc. Mr. Pego is married to Richard Glass' sister. Richard Glass is his brother-in-law and Josephine Glass is his mother-in-law. Respondent sent copies of the original Complaint regarding Richard Glass to Kaiser Real Estate Services; Post, Buckley, Schuh & Jernigan, Inc.; and, Sandra Gonzalez Levy, an Ethics Commissioner. The reason Eileen Moran provided copies to the aforementioned firms was that she considered them "interested parties." At the time Respondent sent the letters to Kaiser Real Estate Services and Post, Buckley, Schuh, and Jernigan, Inc., she was unaware that the Complaint was confidential. After receiving Respondent's letter, the Ethics Commission propounded seven written questions to Eileen Moran requesting more details about the various allegations involving Petitioner. Respondent answered each question as best she knew and based on information provided to her by Maria Lopez and others in the Group. Three of the seven questions propounded to Respondent by the Ethics Commission involved the issue of nepotism. These questions asked whether any of Richard Glass' relatives had been appointed, hired, promoted, and advanced at FDOT during the time Petitioner worked there; if such appointments, hires, promotions or advancements occurred, whether Petitioner had the authority to make such hires or promotions and whether Glass actually appointed, hired, promoted or advanced his relatives; and, if Glass had no such authority, did he have the authority to recommend such appointment, hiring, promotion, or advancement of his relatives and, if so, did he exercise the "recommending authority" in regard to his relatives. In a letter to the Ethics Commission dated October 21, 1996, Respondent answered the questions described in paragraph 20 above. In her response, Respondent indicated that both Linda Glass, Richard's sister, and Jean Polacek, Richard's mother-in- law, were promoted during his tenure at FDOT and that Richard Glass did not have the direct authority to promote these relatives, but was in a position to recommend that these relatives be promoted. Respondent wrote that, "The individual providing this information believes that [Petitioner] recommended these promotions, but did not observe him making said recommendation." Wayne Maxwell was authorized to investigate the allegations in the Complaint on behalf of the Ethics Commission. Mr. Maxwell considered the issue relating to the conditions of Richard Glass' termination from FDOT to be irrelevant to his inquiry and made no inquiries on this issue. During the course of the Ethics Commission investigation, Wayne Maxwell determined that it was Gus Pego's brother, not Gus Pego, who was married to Richard Glass' sister. Wayne Maxwell was told by FDOT management that the $500,000.00 Contract had not been in existence at the time that Richard Glass was the Right-of-Way Administrator at FDOT, District VI. Moreover, it was found that Mr. Glass had not been involved in the development of the Contract during his employment with FDOT. Wayne Maxwell found no conflict of interest or violations of the anti-nepotism law because none of the relationships between Gus Pego, Richard Glass, Richard Lineberger, and Martha Budney qualified as "relatives" under Section 112.3135, Florida Statutes. Wayne Maxwell incorporated his factual findings in a report, which was forwarded to the Advocate. Based on these findings, the Commission's Advocate recommended that there was no probable cause to support any of the allegations brought by Respondent. This recommendation was accepted by the Ethics Commission. The Ethics Commission did not find conflicts of interest between Richard Glass, Gus Pego, Richard Lineberger, and Martha Budney in the award of the $500,000.00 Contract or the negotiations with the Turnberry Group. Mr. Glass contends that Respondent's Complaint contained the following four false statements: (1) Mr. Glass had been asked to resign for malfeasance; (2) Mr. Glass promoted or aided in the promotion of his sister, Susan Glass; (3) Mr. Glass' sister was married to Gus Pego, an FDOT employee; and, (4) Josephine Glass, Richard Glass' mother, was the mother-in-law of Gus Pego. Petitioner does not challenge the Respondent's statement that Gus Pego awarded this Contract to Glass Acquisition, Inc. All of the statements in paragraph (28) above, alleged to be false, were, in fact, found to be incorrect. With regard to the circumstances of Petitioner's leaving his employment with FDOT, there is no evidence that Petitioner was forced to resign for malfeasance. Rather, Petitioner's official personnel file reflects a positive employment record and excellent ratings during his twelve-year tenure with FDOT. Neither Ms. Lopez nor Respondent ever reviewed Mr. Glass' personnel file. However, based on Ms. Lopez's personal conversations with FDOT, Mr. Abreu and others, and a confidential memo written to Ms. Lopez, she believed that Petitioner had been forced to resign because of malfeasance. Ms. Lopez conveyed this belief to Respondent, who in turn, included this information in her letter to the Ethics Commission. However, in reporting this information in her Complaint, Respondent stated that she was not employed at FDOT when Petitioner resigned and that she obtained this information from other individuals. Next, although it was established that Mr. Glass' sister was employed by FDOT, it was determined that her name was Linda Glass, not Susan Glass as Respondent had stated in her Complaint. More significantly, the investigation revealed that while Linda Glass had been promoted while at FDOT, Richard Glass had not advocated her for such promotions. The other statements in Respondent's Complaint, alleged to be false relate to the in-law relationship between Petitioner and Gus Pego. In the Complaint, it was alleged that Josephine Glass was Gus Pego's mother-in-law by virtue of his being married to Richard Glass' sister. The Ethics Commission's investigation revealed that this was not the case. Instead it was Gus Pego's brother who was married to Richard Glass' sister. Thus, Josephine Glass was not Gus Pego's mother-in-law. Nonetheless, there was, in fact, a remote "in-law" relationship between the individuals. Respondent believed that the existence of any familial relationship created a potential conflict of interest in the awarding of the Contract. On the contrary, the investigator for the Ethics Commission viewed these relationships as too remote to consider them relatives under the applicable law. While each of the statements in paragraph 28 above and contained in Respondent's Complaint were determined to be incorrect, the statements were not known to be incorrect or false when made by Respondent. Rather, the statements were made in reliance on information conveyed to Respondent by Ms. Lopez and others whom Respondent deemed to be reliable. Petitioner consulted with Charles Rowe, an attorney, at his office shortly after receiving the Complaint and the amendments thereto. During this consultation, Mr. Rowe recommended that Respondent represent himself. Petitioner took Mr. Rowe's advice and during all proceedings before the Ethics Commission, Petitioner appeared pro se. No attorney filed an appearance to defend Petitioner nor did any attorney contact Wayne Maxwell or any other member of the staff of the Ethics Commission involved in the investigation in order to discuss testimony, evidence, witnesses or legal issues raised during the investigation. However, Petitioner and Mr. Rowe collaborated on a letter that Petitioner planned to send to Kaiser Real Estate Services and Post, Buckley, Schuh and Jernigan, Inc., regarding Respondent's July 31, 1996, letter to the Ethics Commission. Petitioner later decided not to send the letter. Moreover, although Petitioner was representing himself in this matter, he consulted with Mr. Rowe before each meeting with Wayne Maxwell and in regard to the hearing in Tallahassee, Florida, before the Ethics Commission. Sometime after the determination by the Ethics Commission that no probable cause existed based upon its investigation of Eileen Moran's complaints, Mr. Rowe presented Petitioner with a bill for $700.00 for legal services rendered. Richard Glass has never paid this bill. Richard Glass attended the January 22, 1998, Ethics Commission meeting in Tallahassee, Florida, which considered the Advocate's recommendation of no probable cause. Although he had been invited to attend prior to going to the meeting, Petitioner knew that a no probable cause recommendation would be made before the Ethics Commission. Nonetheless, Petitioner attended the meeting and in doing so, incurred the following costs: $240.00 for an airline ticket to Tallahassee; $12.50 for parking; $38.68 for a rental car; and, $10.49 for lunch. Mr. Glass testified that he had expended sixty-five hours of his own time to defend this matter and stated that he is entitled to be paid $83.07 per hour, his current hourly rate.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that a Final Order be entered finding that Respondent, Eileen Moran, is not liable for attorney's fees and costs and dismissing the Petition for Attorney's Fees. DONE AND ENTERED this 4th day of January, 1999, in Tallahassee, Leon County, Florida. CAROLYN S. HOLIFIELD Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 4th day of January, 1999. COPIES FURNISHED: Charles R. Rowe, Esquire 1310 North Krome Avenue Homestead, Florida 33030 Charles G. White, Esquire 2250 Southwest Third Avenue Suite 150 Miami, Florida 33129 Eric Scott, Esquire Office of the Attorney General The Capitol, Plaza Level 01 Tallahassee, Florida 32399-1050 Phil Claypool, General Counsel Commission on Ethics 2822 Remington Green Circle Post Office Drawer 15709 Tallahassee, Florida 32317-5709 Kerrie Stillman, Complaint Coordinator Commission on Ethics 2822 Remington Green Circle, Suite 101 Post Office Box 15709 Tallahassee, Florida 32317-5709
The Issue The issue is whether Respondent's license as a certified residential contractor should be disciplined for the reasons given in the Administrative Complaint.
Findings Of Fact Based upon all of the evidence, the following findings of fact are determined: When the events herein occurred, Respondent, Brent Somers Graham, was licensed as a certified residential contractor having been issued license no. CR C056809 by Petitioner, Department of Business and Professional Regulation, Construction Industry Licensing Board (Board). Respondent was the licensed qualifying agent for G C Construction, Inc., whose business address is not of record. At the present time, Respondent's license is in a delinquent status. In late 1995, a major hurricane struck the Panhandle section of Florida and damaged the home of Katherine M. Cook, who lived at 741 Miracle Strip, Mary Esther, in Okaloosa County, Florida. Among other things, the hurricane lifted an 78-foot porch off of her home, and a tree fell through its roof. On January 18, 1996, Cook accepted a proposal by Respondent to repair the damage to her home for $9,000.00. A description of the work to be performed by Repondent is found on Petitioner's Exhibit 2, and it includes replacing a 78-foot by 12-foot screen porch and its roof, and other related work. Cook paid Respondent $2,700.00 as a down payment on the job on January 19, 1996. On February 8, 1996, Respondent made application for a building permit with the City of Mary Esther (City). After receiving a permit, he then commenced to work on the repairs, mostly by himself but occasionally with the assistance of a few other helpers. When the job was supposedly completed in March 1996, Cook paid Respondent another $6,200.00, or a total of $8,900.00, pursuant to the parties' agreement. Within a short time, Cook noticed that the porch roof was sagging and falling in. Efforts to reach Respondent were futile since he had disconnected his telephone and apparently left the area. She then asked that an inspector for the City, Neil Sasnett, to make an inspection of her home. Sasnett quickly discovered that Respondent had never called for an inspection by the City, although the City Code required that he do so and Cook had paid for one. This omission constituted a violation of the local building code. It can be inferred from the evidence that, given the poor workmanship on the project, as described below, the violation was intentional, especially since a licensed contractor would be expected to be aware of this requirement. Sasnett found numerous deficiencies in the work just completed by Respondent, including rafters that were notched to less than 4 inches about 3 feet inside the load bearing wall, a header on the outside bearing wall that was jointed in between the upright posts, and roofing metal panels improperly sealed. These deficiencies resulted in an unsafe roof in an uplift condition and one that would be dangerous to walk on. Because Cook lived on the Gulf of Mexico, and her home was subject to windy conditions, these deficiencies were especially egregious. All of the foregoing deficiencies constituted violations of the local building code. Cook was forced to hire a second contractor to repair the porch since Respondent had left the area. For this additional work, Cook paid an additional $15,975.00, including $3,000.00 to tear out the faulty work previously performed by Respondent. At hearing, the second contractor described Respondent's work as "very poor" and "substandard." Given this consideration, and the deficiencies described by the City's inspector, it is found that the faulty work constituted incompetency in the practice of contracting on the part of Respondent. Throughout this process, Respondent refused to contact Cook or return to her home to make the needed repairs. After the complaint was issued by the Board, however, he telephoned Cook. Although he then offered to repair the porch, which had been repaired by another contractor some 18 months earlier, his main concern was that his license might be in jeopardy because of her complaint. There is no record of Respondent having been previously disciplined by the Board. Therefore, it is fair to infer that these offenses were the first committed by Respondent.
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 finding that Respondent is guilty of the violations described in Counts I through IV of the Administrative Complaint. For those violations, it is recommended that Respondent's license be revoked, and that he be required to pay Katherine M. Cook $11,900.00 as restitution for her costs incurred in her dealings with Respondent. DONE AND ENTERED this 9th day of February, 1999, in Tallahassee, Leon County, Florida. DONALD R. ALEXANDER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 9th day of February, 1999. COPIES FURNISHED: John O. Williams, Esquire Maureen L. Holz, Esquire 355 North Monroe Street Tallahassee, Florida 32301 Brent Somers Graham 6156 White Oak Drive Flowery Brand, Georgia 30542 Rodney Hurst, Executive Director Construction Industry Licensing Board 7960 Arlington Expressway, Suite 300 Jacksonville, Florida 32211-7467 Lynda L. Goodgame, General Counsel Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792
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.
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
