The Issue Whether the Respondent aided and abetted an unlicensed contractor by obtaining a permit for a roofing job performed by the unlicensed contractor; Whether the work on the job failed to fully comply with the local building codes; Whether the Respondent gave a guarantee on the job and thereafter failed to reasonably honor the guarantee; and Whether Respondent failed to properly supervise the job site activity.
Findings Of Fact At all times material to this action, Respondent was licensed by the Construction Industry Licensing Board as a registered roofing contractor, holding License No. RC0030450. Carol Kilgore is the daughter of Beula Relihan, who owns a rental home located at 207 East Selma in Tampa, Florida. Mrs. Relihan is 86 years old, and for several years Mrs. Kilgore has been managing the property. In early 1987, Mrs. Kilgore was involved in obtaining estimates to replace the roof at the rental home. After obtaining estimates from contractors listed in the yellow pages, which Mrs. Kilgore felt to be high, Mrs. Kilgore responded to an advertisement for roofing work located in the Money Saver. She called the number listed in the advertiser, talked to Leroy Rison, and asked him to come to the house and give her an estimate. On or about February 26, 1987, Leroy Rison and his nephew, Gary Terrell, visited Mrs. Kilgore after looking at the job site, and wrote out an estimate for replacing the roof of $1,650.00. Mr. Terrell wrote the proposal which reflected the work to be done, the price, and the proposed beginning and finishing date. However, before any contract was entered into, Mrs. Kilgore discovered that neither Rison or Terrell were licensed contractors. She explained that she wanted only a licensed contractor who could pull the permit to perform the work. Although Mr. Terrell and Mr. Rison are willing to work for a homeowner if the homeowner will obtain the permit, Mrs. Kilgore insisted that she wanted a licensed contractor. Therefore, Mr. Rison recommended the Respondent, and later called the Respondent to advise him of the job. The next day, February 27, 1987, Respondent met Mrs. Kilgore and wrote a contract proposal on a form with a printed heading "MacDill Roofing", to which in handwriting was added "& Services." Respondent operates under the name of, and is the qualifying agent for, MacDill Services. The contract prepared by the Respondent merely copied the proposal submitted by Terrell and Rison, including the same price and the same misspelled words. The contract was accepted and signed by Ms. Kilgore's mother. Mrs. Kilgore paid Respondent $650.00, with the balance to be paid upon successful completion of the contract. Work was scheduled to begin the following day, Saturday, February 28, 1987 and be completed by Monday, March 2, 1987. The following Saturday work began. Respondent obtained the permit for the job, and apparently purchased the materials and had them delivered. Leroy Rison worked on the job and hired the laborers. Gary Terrell also worked on the job. One of the men Rison hired, Earl, worked for a roofing company during the week but did not have a license. Mr. Rison could not remember the name of any of the other men who worked on the job. Leroy Rison was not an employee of MacDill Roofing or MacDill Services, but he had worked for Respondent on other occasions. Although Respondent contends that he went by the job site on three or four occasions, staying at the job site between 1 and 2 hours on each occasion, his testimony is not credible. Charles Doty, who was the tenant in the rental home, had received a leg injury which forced him to stay home during this entire period of time. The only time Mr. Doty was gone was for an hour and half on Saturday to attend a therapy session. Mr. Doty never saw Respondent on the job site, although he had heard Respondent's name mentioned by Mr. Rison. Mrs. Kilgore also visited the job site on several occasions and she never saw the Respondent at the job site. Respondent simply did not supervise the job site activities. On March 3, 1987, the roof was scheduled for final inspection by the building department. Mrs. Kilgore went to the house to wait for the building inspector. After several hours, she left to get a soft drink. She was gone only five minutes, but when she returned, she discovered that the building inspector had come and gone, and a "green tag", indicating that the house had passed inspection, had been left on the porch. Mrs. Kilgore was very upset because she felt that the roofing work had not been done properly. She went to the building supervisor at City Hall and asked him if he could send the inspector back to the house so that she could point out the problems. The building supervisor agreed to send the inspector back to the house. The building department inspector was Terry Scott. On March 3, 1987, Mr. Scott had approximately 20 or 25 inspections to do. When he first went to the house he just looked around quickly and left a green tag. He admitted that a thorough inspection was only done if a homeowner complained. When Mr. Scott returned to the house on March 3, 1987, he still did not do a thorough inspection. However, he did issue a "red tag" which listed certain deficiencies that would have to be corrected before the roof could pass inspection. The red tag required that the contractor "replace bad wood where needed and install drip-edge where needed." Normally, when a red tag is issued, the contractor corrects the deficiency and calls for another inspection. That did not occur in this case. On April 9, 1987, Inspector Scott met Mr. Park at the job-site to discuss problems with the roof. On that day, a more thorough inspection was performed. Another red tag was issued and the following deficiencies were noted: "Bad wood not replaced--Wall flashing not properly installed. Flashing around chimney not proper--Felt under drip-edge." Respondent did not correct these deficiencies and never called for another inspection. The permit expired without the roof being approved by final inspection. Although not all the deficiencies noted in the inspection constitute code violations, the Tampa Building Code does require that rotten wood be replaced and the contract specified that the rotten decking would be replaced. Nevertheless, after Respondent completed the job, rotten wood remained in place. The replacement of the rotten wood was noted in both red tags. Respondent never attempted to correct this deficiency. On the day the property initially passed inspection, March 3, 1987, Respondent called Mrs. Kilgore and requested the remaining $1,000 owed on the contract price. Mrs. Kilgore refused to pay the Respondent since she was dissatisfied with the work and the first red tag had issued. At some point, apparently after the red tag issued in April, Respondent decided that he was not going to get any more money from Mrs. Kilgore. Other than asking for the money on March 3, 1987, Respondent has not attempted to collect the remainder of the money from Ms. Kilgore; however, he has also not attempted to correct the code violations and other deficiencies. Since Respondent did not collect the remainder of the money owed, Respondent did not pay Leroy Rison, and Mr. Rison did not pay the laborers who performed the work. As the contractor on this job, Respondent had full responsibility for ensuring that the work was done properly and that the roof passed final inspection. Respondent failed to supervise the work on the job, and the re- roofing was not done in a workmanlike manner. In essence, Respondent abdicated his responsibilities as the contractor on the job, and allowed the work to be performed by unsupervised unlicensed persons. The roofing material used was supposed to be fiberglass shingle guaranteed for 20 years. There was no evidence presented that something other than the material specified was used or that the shingles were not installed in accordance with the manufacturer's specifications. The roof did not leak after the work was completed. No evidence relating to a guarantee, other than the guarantee related to the shingles, was presented. Respondent has previously been disciplined by the Construction Industry Licensing Board. On September 10, 1986, a 61 paragraph Administrative Complaint was filed against Respondent which alleged, among other things, willful violation of local law; failure to qualify a firm through which he was operating; gross negligence, incompetence, misconduct, fraud, or deceit in the practice of contracting; failure to discharge supervisory duties as a qualifying agent; and aiding and abetting an unlicensed person to evade the provisions of Chapter 489. On March 26, 1987, Respondent signed a stipulated settlement with the Department of Professional Regulation admitting to all the allegations set forth in the Administrative Complaint. The stipulated disposition was that Respondent's licensure would be suspended for two years and indefinitely thereafter until an administrative fine in the amount of $3,000 was paid. The stipulation was adopted by Final Order of the Construction Industry Licensing Board rendered June 9, 1987.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered revocation of Respondent's license as a registered roofing contractor. DONE and ORDERED this 25th day of October, 1988, in Tallahassee, Florida. DIANE A. GRUBBS 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 25th day of October, 1988. APPENDIX The following constitutes rulings on the Petitioner's Proposed Findings of Fact. 1.-4. Accepted, generally except the date of February 26, 1987 appears to be the appropriate date, rather than February 7, 1987, in that the estimate from Larry Rison was obtained one day before the contract was entered into with Respondent. Accepted, generally. Accepted as true, but unnecessary and irrelevant, since Rison and Terrell did not enter into a contract for the job. 7.-14. Accepted. 15. Accepted as true; however, the last two sentences were considered unnecessary. 16.-19. Accepted, generally. First sentence accepted, sentences two and three rejected as irrelevant to the issues in this case. Rejected as redundant and for the reasons set forth under Proposed Finding of Fact No. 6. First sentence rejected as not supported by the evidence, second sentence accepted, except as to Respondent's intent. Third and fourth sentences accepted in general. COPIES FURNISHED: Belinda H. Miller, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 Francis A. Park 6109 South MacDill Avenue Tampa, Florida 33611 Lawrence A. Gonzalez Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 Bruce D. Lamb, Esquire General Counsel Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 Fred Seely Executive Director Construction Industry Licensing Board Department of Professional Regulation Post Office Box 2 Jacksonville, Florida 32201
Findings Of Fact Respondent has been licensed as a registered roofing contractor at all times relevant to this proceeding. His license number is RC0042041. On August 30, 1982, Respondent contracted with the Julien P. Benjamin Equipment Company of Jacksonville, Florida, for the rental of an asphalt kettle. Respondent executed this contract in the name of his roofing and remodeling business. When Respondent failed to return the kettle or make rental payments, the equipment company filed a complaint with the State Attorney. Respondent subsequently entered a plea of guilty to the charge of Grand Theft, second degree, and was placed on 18 months probation, by order of the Duval County Circuit Court dated May 16, 1983. Respondent returned the kettle and paid the rental fees in March 1983.
Recommendation Based on the foregoing, it is RECOMMENDED: That Petitioner enter a Final Order suspending Respondent's roofing contractor's license for a period of one year. DONE AND ENTERED this 24th day of August 1984 in Tallahassee, Florida. R. T. CARPENTER 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 24th day of August 1984. COPIES FURNISHED: Charles F. Tunnicliff, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Mr. Rex Alaniz 23 Seatrout Street Ponte Verde Beach, Florida 32082 James Linnan, Executive Director Construction Industry Licensing Board Post Office Box 2 Jacksonville, Florida 32202 Mr. Fred M. Roche, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301
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.
Findings Of Fact 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 Respondent is not a licensed roofing contractor. 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. 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. Valdes paid Hatcher $2,000 as a down payment toward the cost of the roof's repair. 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. Hatcher removed the roof from Valdes' residence. After removing the roof, he did not perform any more work. 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. 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. 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. 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. 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. 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. On or about June 5, 1998, Valdes cancelled the contract between her and Hatcher Roofing. Valdes received a refund of the $2,000 from Hatcher, through a third party, that she had paid him. Case No. 98-4859 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. 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. 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. 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. Respondent worked sporadically on Casper's addition through April 1997. He would inform her at times that he was returning but failed to return. 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. 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. 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. 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. In September 1997, Casper transferred the permit for the work on her residence from Respondent's name to her name. 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. 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. 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. Casper hired a new contractor on or about September 17, 1997, to complete the construction on her residence at a cost of $16,350. 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. 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.
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: As to Case No. 99-0261, finding that Respondent violated Subsection 489.129(1)(e), Florida Statutes (1997). 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. Revoking Respondent's license. 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 (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 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
The Issue The issue for determination is whether Arthur Signore committed the offenses set forth in the administrative complaints and, if so, what action should be taken.
Findings Of Fact At all times material hereto, Arthur Signore (Respondent) was licensed by the Department of Business and Professional Regulation, Construction Industry Licensing Board (Petitioner) as a certified general contractor. He received his license in 1969, qualifying Deluccia Construction. Respondent was issued license number CG CA01004. Subsequently, in 1976, Respondent qualified Construction By Scott (CBS). He was issued license number CG CB01004. At all times material hereto, Respondent has been the qualifier of CBS, and the sole owner and president of CBS. At all times material hereto, Respondent's belief was that Petitioner permitted a general contractor to use his/her license to obtain building permits for construction projects for which the general contractor had no contracts through the business that he/she qualified. Respondent practiced his belief frequently by applying for and obtaining building permits for construction projects for which companies or individuals other than CBS had contracts. Collins Job (Case No. 97-1436) Sometime after Hurricane Andrew in 1992, Respondent made an oral agreement with Harold Bader to go into partnership with Bader and form a construction company, with Respondent qualifying the company. Respondent provided his name, his company's name (CBS), and his license number to Bader in order for the qualifying documents to be completed and submitted to the Petitioner. However, the company was not formed and the qualifying documents were never submitted. At no time material hereto was Bader licensed by the Petitioner to engage in the practice of contracting. Respondent knew or should have known that Bader was not licensed by the Petitioner. In March 1994, Thomas Sherry of American Building Industries, Inc. (ABI), began negotiating with Maria and Wayne Collins, husband and wife, for the remodeling of their home, located at 7417 SW 140th Court, Miami, Florida. On March 24, 1994, the Collins entered into a contract with ABI for the remodeling of their home at a cost of $12,500. Bader was the owner of ABI. Sherry was a salesperson for Bader. Sherry provided the Collins with a business card which showed, among other things, ABI's name, address and telephone number, and license number. The license number on the business card was Respondent's license number. All business cards were provided to Sherry by Bader. At no time material hereto, did Sherry talk with or meet Respondent. The records of the Metropolitan Dade County, Building and Zoning Department reflect, among other things, Respondent's name, his company's name (CBS) and license number on the building permit application for the construction to the Collins' home. However, the address listed for Respondent and his company was the address for ABI. Further, the said records reflect, among other things, that aforementioned information provided, as to Respondent, was used to obtain the building permit. Respondent did not complete the permit application for the building permit to remodel the Collins' home. The Collins paid $6,875 to ABI. Any and all checks were made payable to ABI. No money for the construction on the Collins' home was paid to or received by Respondent. In May 1994, problems developed on the job site between the Collins and ABI. The work performed by ABI failed numerous inspections. Mr. Collins wanted to talk with Respondent who was listed as the contractor on the permit and requested Bader to contact Respondent. Bader refused, indicating to Mr. Collins that all communication should be with him (Bader). Finally, in August 1994 the Collins fired ABI after more problems had developed. At that time ABI had completed some of the work. On August 29, 1994, Mr. Collins met with Respondent at Respondent's place of business. Prior to the meeting, Mr. Collins had called Respondent numerous times regarding his problems with ABI and Bader and requesting assistance from Respondent. Each time Respondent denied having any knowledge of the work being performed. When Mr. Collins met with Respondent, Mr. Collins discussed the problems that he had experienced with ABI and Bader. Respondent continued to deny knowing anything about the construction project but agreed to send his employees to examine the job and determine what could be done, if anything. The following day two of Respondent's workers came to the Collins' home and examined the work completed and the work remaining. Subsequently, Respondent contacted Mr. Collins. Respondent indicated to Mr. Collins that he could complete the job for $5,000. Mr. Collins refused to pay the additional monies since it would extend the remodeling cost beyond the contracted cost and since he was now directly paying the subcontractors. At no time did Respondent or his business (CBS) have a contract with the Collins. Until being contacted by the Collins, Respondent had no knowledge that Bader used his name, business name and license number to contract with the Collins and to obtain the building permit for the remodeling of their home. However, prior to being contacted by the Collins, Respondent had been contacted by other persons who had contracts with ABI, who had been informed by Bader that Respondent was the contractor for their jobs, who had problems with ABI, and who wanted assistance from Respondent. Furthermore, the building permits for the construction jobs of those persons reflected Respondent and Respondent's company as the contractor. At no time material hereto was Bader or ABI licensed by the Petitioner to engage in the practice of contracting. Respondent knew or should have known that neither Bader nor ABI was licensed by the Petitioner to engage in the practice of contracting. Respondent was placed on notice of their unlicensed activity after the contacts by the homeowners prior to the contact by the Collins. Even with the knowledge of the homeowners' complaints prior to the Collins' complaints, at no time did Respondent notify Bader to stop using his (Respondent's) name, company's name and license number. Further, at no time did Respondent notify the Metropolitan Dade County, Building and Zoning Department of Bader's misuse of his (Respondent's) name, company's name, and license number or to no longer issue permits to ABI under his (Respondent's) name, company and license. Walsh Job (Case No. 97-1435) In the Fall of 1995, Patrick and Susan Walsh entered into an oral agreement with John Petracelli for an addition to and the remodeling of their home, located at 761 Glen Ridge Road, Key Biscayne, Florida. On October 16, 1995, the Walshes entered into a verbal agreement with Petracelli for an engineer to produce a set of plans at a cost of $2,250 for the construction to their home. The Walshes paid Petracelli the $2,250 on October 16, 1995. On December 7, 1995, the Walshes entered into a written agreement with Petracelli for the construction work on their home at a cost of $84,000. Pursuant to this written agreement, the Walshes paid Petracelli $16,800 on December 7, 1995. Petracelli contacted Respondent and requested Respondent to be the contractor for the construction work on the Walshes' home. Respondent and Petracelli had met one another previously when Petracelli was a salesperson for Bader. Petracelli informed Respondent that he (Petracelli) had already told the Walshes that Respondent was the contractor. To the contrary, Petracelli had not informed the Walshes that Respondent was involved in the construction to their home. Respondent agreed to be the contractor but informed Petracelli that, until a set of plans was approved by the Village of Key Biscayne Building Division (Building Division), he could not provide Petracelli with a cost figure for the construction work. Petracelli informed Respondent that the plans were being prepared, but did not inform Respondent that the Walshes had paid for the preparation of the plans. Respondent agreed further to submit the completed plans to the Building Division for a "dry run" only. After the dry run, Respondent would provide a cost figure for the construction work. A dry run is a process in which a contractor, who has a complicated job which requires an engineer, submits a set of plans, together with an application for a building permit, to the Building Division for approval. The plans may be subject to several modifications requested by the Building Division before they are approved. As a result, the contractor does not know the estimated cost of a job until the plans have gone through the requested modifications, if any, and approved by the Building Division. After the plans are approved by the Building Division, the contractor is notified to come to the Building Division and sign for and obtain the building permit. Pursuant to the agreement between Respondent and Petracelli, on or about December 11, 1995, Respondent completed an application for a building permit for the addition to and the remodeling of the Walshes' home and gave it to Petracelli. The application reflected, among other things, CBS (Respondent's company) as the contractor, and Respondent as the qualifier. Respondent provided the application to Petracelli for the dry run process only. Further, Respondent reiterated to Petracelli that, once the plans were approved by the Building Division, he (Respondent) would meet with the Walshes and agree on a cost for the construction work on their home and that, after agreeing on the cost he (Respondent) would sign for and obtain the building permit for the construction to begin. Respondent was not aware that Petracelli and the Walshes had a signed agreement for the construction work. Petracelli submitted the plans, along with the permit application, to the Building Division for approval. The plans were modified several times to meet the approval of the Building Division, but were never approved. The Building Division considered the plans submitted to be substandard. Since no plans were approved, no building permit was issued. On or about January 3, 1996, the Walshes met at the Building Division with some of the Building Division's officials, Petracelli, and the engineer who prepared the plans. As a result of the meeting, among other things, the Walshes were able to review the permit application and discovered that Respondent, not Petracelli, was licensed and the contractor for the construction work; concluded that the engineer's work was considered so substandard by the Building Division that any modification produced by the engineer would not be approved by the Building Division; and determined that they no longer wanted Petracelli to perform the construction work on their home. Within 24 hours of the meeting, the Walshes telephoned Petracelli and terminated his services. Also, the Walshes requested the return of all of the monies paid to Petracelli by them; however, Petracelli did not return any of their money. At no time material hereto was Petracelli licensed by the Petitioner to engage in the practice of contracting. Respondent knew or should have known that Petracelli was not licensed by the Petitioner. At no time material hereto did Respondent or his company (CBS) have a contract with the Walshes. At no time material hereto did Respondent have any communication or contact with the Walshes. Biscayne Kennel Club Job (Case No. 97-2998) The Biscayne Kennel Club (BKC), located at 320 NW 115th Street, Miami Shores, Florida, was a track for greyhound racing. On October 30, 1995, the last race was run at BKC. In February 1996, the BKC sold its Pari-Mutuel license. On or about December 11, 1996, the BKC, by and through its representative, Carl Spitzer, entered into a written contract with Cuyahoga Wrecking Corporation (CWC), by and through its representative, Thomas Schwab, for, among other things, the removal of asbestos and the demolition and removal of BKC's grandstand structure and viewing area. The contract was prepared by Schwab, who had 25 years of experience in the demolition business, with 20 years of that experience in the State of Florida. All contract negotiations were between Schwab and Spitzer. At no time was the President and CEO of BKC, Kay Spitzer, involved in the contract negotiations. As to cost, the contract provided at Article 4 that the cost was $37,500 and that the $37,500 was "dedicated to the removal of the described ACM." Further, Article 4 provided that the "balance of the work to be paid for by the sale of the ferrous and non-ferrous metals by the contractor." In addition, the contract provided in Article 7 that, among other things, all permits were included in the contract price and that BKC and the "contractor" would share "equally all the proceeds of the non-ferrous metals minus whatever costs are incurred bringing it to market." The contract did not restrict or prohibit CWC from engaging the services of any individual or subcontractor to perform the work required in the contract. The grandstand structure and viewing area were one structure. Attached to the roof of the structure was a small building which was used by BKC personnel for viewing the races. The roof was the highest part of the structure, except for the small building. The distance from ground level to the top of the roof was 69 feet and 10 inches; and the top of the small building was approximately 15 feet higher than the top of the roof. CWC contracted with Sal's Abatement to perform the asbestos removal. Schwab was licensed by Dade County, Florida, as a specialty contractor. He was notified that the work for the BKC job was outside the scope of his license and that a contractor, licensed by the Petitioner, was required for the BKC job. Schwab contacted Respondent to be the general contractor. Schwab had worked with Respondent before on other, but smaller, jobs. Respondent agreed to be the general contractor in return for a percentage of the contract. Per the agreement, Respondent would obtain the necessary permits, provide the equipment necessary for the demolition, and supervise the workers on the job. On March 6, 1997, Respondent completed an application for a building permit with Miami Shores Village, Florida, for the demolition of the BKC grandstand. The application reflected Respondent's company (CBS) as the contracting company and Respondent as the qualifier. Carl Spitzer signed the permit application on behalf of BKC. On March 17, 1997, a building permit (permit number 41084) was issued by the Village of Miami Shores for the demolition of BKC's grandstand. On April 29, 1997, the cost of the permit, $566.50, was paid. At no time material hereto was Schwab or CWC licensed by Petitioner to engage in the practice of contracting. Respondent knew or should have known that neither Schwab nor CWC were licensed by Petitioner. At no time did a contract exist between Respondent or his company with BKC for the demolition job. Respondent supervised CWC's preparation of the grandstand for demolition. In preparing the grandstand for demolition, Respondent and Schwab met at the site at least 3 times to discuss the demolition and its progress. On May 16, 1997, the grandstand was scheduled to be demolished. On the morning of May 16th, as Schwab was leaving BKC, Respondent arrived. Shortly thereafter, the grandstand accidentally collapsed--the beams supporting the roof of the grandstand failed, and the roof collapsed. Two of CWC's workers were killed and three were seriously injured. After the collapse, BKC contracted with another company, Omega Contracting, to complete the demolition job. The Petitioner submitted documents reflecting that its costs of investigation and prosecution of the complaints against Respondent, excluding costs associated with attorney's time, to be $1,017.25. On May 22, 1997, pursuant to an Emergency Suspension Order, on May 22, 1997, the Petitioner suspended Respondent's license. Respondent has no prior disciplinary action taken against him by the Petitioner.
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: Dismissing all counts in Case Nos. 97-1435 and 97-1436. Finding that Arthur Signore violated Subsections 489.129(1)(c), (e), and (j), 489.1265(3), and 455.227(1)(a), Florida Statutes (1995). Revoking Arthur Signore's certified general contractor's license. Requiring Arthur Signore to pay all reasonable costs of investigation and prosecution associated with the Department of Business and Professional Regulation's investigation and prosecution of the charges set forth in the Administrative Complaint of Case No. 97-2998.3 DONE AND ENTERED this 13th day of January, 1998, 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 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 13th day of January, 1998.
The Issue Whether Respondent violated provisions of Chapter 75-489, Laws of Florida, as amended, as more specifically alleged in Administrative Complaint dated February 10, 1992.
Findings Of Fact At all times relevant hereto Respondent was licensed by Petitioner as a certified building contractor having been issued license C-608, and was qualifying agent for Bay City Builders, Inc. Bay City Builders, Inc., entered into a contract to add four bedrooms and two baths to a residence in Dunedin, Florida, being used as an Adult Congregate Living Facility (ACLF) (Exhibits 1 and 2), at a price of $32,000. The contract provided, inter alia, that the contractor would provide all permits and fees directly associated with the project. Upon signing the original contract on September 26, 1991, the owner paid Bay City Builders $3200 (Exhibit 3). On October 8, 1991, the owner paid Bay City Builders an additional $7200 (Exhibit 3) when the plans were presented to the owner. Prior to the issuance of the permit for this project, Bay City Builders poured the footing for the building addition. The permit application was signed by Respondent. After entering into the contract, Bay City Builders found there was an impact fee involved, the project was never completed and was subsequently abandoned. Bay City Builders prepared a second contract for this project which increased the price to $41,789 (Exhibit 5) and presented this to the owner who did not accept the new contract. Respondent admits that he was the qualifying contractor for Bay City Builders, and the permit was pulled under his license, but contends he had nothing to do with the financial arrangements between Bay City Builders and the owner. Respondent was paid a flat fee by Bay City Builders for obtaining permits under his license for work Bay City Builders contracted to perform. He occasionally visited the sites where work was being performed by Bay City Builders. Bay City Builders is not licensed. The permit for the ACLF addition was applied for on November 1, 1991, but was not issued by the City of Dunedin until February 13, 1992 (Exhibit 6). It could have been picked up any time after November 30, 1991. On September 5, 1991, Bay City Builders entered into a contract with an owner living in Seminole, Florida, to replace the roof over a rear porch of this residence for a total price of $900. (Exhibit 8) This was a flat roof, and the initial intent was to replace the tar and gravel roof with tar and gravel. At the time construction started on September 11, 1991, the person doing the installation used a rubberized roof, which was satisfactory to the owner and gave the owner a 5 year unconditional warranty. Respondent's license does not authorize him to reroof an existing building, and no permit was applied for to perform this job. No certified roofer was engaged to do this reroofing, the rubberized compound applied to the roof was improperly applied and the roof started leaking when the first rain came. Workers from Bay City Builders came to the residence several times to attempt to patch the leaks, but the leaks persisted. Ultimately, the owner had to employ a qualified roofing contractor to redo the roof. While Bay City Builders was attempting to stop the leaks, the ceiling over the porch was also ruined and had to be replaced. In his testimony, Respondent admitted that he was the sole qualifying contractor for Bay City Builders, that his function was to give Bay City Builders a price estimate for the work intended, including the ACLF addition, but the owner of Bay City Builders entered into a contract for $5000 less than Respondent's estimate for the ACLF. Respondent also acknowledged that Bay City Builders, acting under Respondent's license, entered into contracts for some 150 jobs, but that Respondent was told or learned of only 60 of these projects. Respondent was paid a fixed fee by Bay City Builders for each permit obtained, and he prepared estimates of cost.
Findings Of Fact At all times relevant hereto, respondent, James S. Stroz, held registered roofing contractor license number RC 0034849 issued by petitioner, Department of Professional Regulation, Florida Construction Industry Licensing Board. He was first licensed in November, 1979, and at that time qualified under the name of Stroz Roofing. A change in status application was later filed to qualify Stroz Roofing, Inc., 13696 Exotica Lane, West Palm Beach, Florida. Although licensed as a roofing contractor, respondent's firm only performs work on wood shakes or shingles. He does not do hot roofs or flat roofs, which is another speciality in the roofing business. While working for a roofing firm in1979, Stroz became acquainted with Lacy Davis, an unlicensed individual who specialized in flat roof work. When Stroz started his own roofing company in 1983, he began contracting out the flat roof work to other licensed roofing contractors. Lacy Davis learned of this and approached Stroz offering his services on the flat roof work. Stroz knew Davis was unlicensed and would not initially hire him, but Davis gave him a business card of Henry Haywood, a licensed roofing contractor in Palm Beach County and explained he and Haywood were partners and that the work and permitting would be done under Haywood's license. In actuality, Haywood had not authorized Davis to use his business cards, or topull permits under his name. Indeed, Haywood had no knowledge of Davis' activities. Without verifying the truth of Davis' representations, and accepting them instead at face value, Stroz agreed to hire Davis to perform his flat roof work. Between January 20, 1983 and September 30, 1984, Stroz performed some twenty-one jobs using Davis for the flat roof work. At all times, Stroz was under the impression that the work was being done under Haywood's license and that his activities were lawful. Stroz made all checks for the work payable to Lacy Davis or Lacy Davis Roofing. He did this because Davis told him he frequently had difficulty reaching Haywood to cash the checks, and because the business bank account was in Davis' own name. A few of the checks carried a notation at the bottom that payment was for work by Haywood Roofing, but most made no reference to Haywood. Stroz pulled all permits on their jobs reflecting that Haywood Roofing was the licensed contractor. Of the twenty invoices given by Davis to Stroz for the twenty-one jobs, only four were on invoices printed with Haywood's name. The remainder had various other names including "Lacy Davis Roofing," "Lacy Davis" and "Lacy Davis and Benny Guy Roofing Contractors." None of these were licensed as roofing contractors by petitioner. In June, 1984, a member of Davis' crew was injured and it was discovered Davis had no insurance. Stroz's insurance paid the claim, but an investigation ultimately determined that Davis was unlicensed and had no authority to act on Haywood's behalf. This led to the issuance of the administrative complaint herein. Respondent has fully cooperated with petitioner, and in fact voluntarily disclosed one job with Davis that petitioner's investigation had failed to uncover. He admits he was negligent in not checking out the representations of Davis, but he never intended to violate the law. No consumer was harmed in any way by Davis' work, and there are no complaints concerning the quality of the jobs in question.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that Respondent be found guilty as charged in the administrative complaint, and that he be fined $500 to be paid within thirty days from date of the final order rendered in this proceeding. DONE and ORDERED this 2nd day of July, 1985, in Tallahassee, Florida. DONALD R. ALEXANDER Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, FL 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 2nd day of July, 1985.
The Issue Whether the respondent committed the violations alleged in the Administrative Complaint, and, if so, the penalty which 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 of Business and Professional Regulation is the state agency responsible for investigating and prosecuting complaints made to the Department for violations of the requirements of chapter 489, part I, Florida Statutes. Sections 489.131(7)(e) and 455.225, Fla. Stat. Pursuant to section 489.129(1), the Construction Industry Licensing Board ("Board") is the entity responsible for imposing discipline for the violations set out in that section. At all times material to this case, Mr. Cote was a certified general contractor operating under License Number CGC006199 issued by the Construction Industry Licensing Board. Mr. Cote currently holds this license, and he has been a licensed general contractor since 1973. At all times material to this case, Mr. Cote was the licensed qualifying agent for JLC Enterprises, Inc. On January 12, 1995, Noel Mais, on behalf of Noel Mais Roofing, contracted with Judith Braun to re-roof property she owned located at 8914 Northwest 26th Court, Coral Springs, Florida. The contract price was $7,000.00, with $3,000.00 required as a down-payment, $3,000.00 to be paid after the roof was dried in, and $1,000.00 to be paid on completion of the project. Neither Mr. Cote nor JLC Enterprises, Inc., was a party to this contract. In late January, 1995, Mr. Mais approached Mr. Cote and requested that he apply for the necessary building permit from the City of Coral Springs. He provided to Mr. Cote a workers' compensation waiver and exemption, a Certificate of Insurance for general commercial liability insurance, and a Certificate of Competency issued by Broward County, Florida, with an expiration date of August 31, 1995. Mr. Mais also told Mr. Cote that he had submitted all of the papers necessary to register his Broward County Certificate of Competency with the state but had not yet received his registration. Mr. Cote relied on the documents and the representations of Mr. Mais regarding his registration status with the state. On or about February 1, 1995,1 Mr. Cote submitted an application to the City of Coral Springs for a building permit to re-roof property owned by Ms. Braun and located at 8914 Northwest 26th Court, Coral Springs, Florida, naming JLC Enterprises, Inc., as the contractor and identifying the estimated cost of the project at $7,000.00. Mr. Mais gave Mr. Cote $300.00 when he applied for the permit. Mr. Cote used $150.00 of this money to pay the permit application fee and $60.00 to pay for two re- inspections which had to be done on the roof. On or about February 17, 1995, the City of Coral Springs issued Permit Number 95-443.2 Mr. Mais commenced work on the project a few weeks after the contract was signed, but before Mr. Cote applied for the permit. According to Ms. Braun, Mr. Mais started "like gangbusters" and quickly stripped the old tiles off of the roof and applied the tar paper. After Mr. Cote agreed to apply for the permit, he told Mr. Mais not to work on the project until the permit was issued. According to Mr. Cote, Mr. Mais returned to work the day after the permit was issued and, the "next day," the job failed inspection because the nail spacing was not consistent with the new code. Mr. Mais re-nailed the roof according to code, but it failed re-inspection because the flashing was not painted. This was done, and the job passed a second re-inspection. Mr. Cote looked in on the job a couple of times after this and saw that nothing was being done. He contacted Mr. Mais and asked why he was not working on the project, and Mr. Mais told him that he was waiting for Ms. Braun to give him some money so he could buy the tiles. When Ms. Braun called Mr. Cote and complained that no tile had been delivered, he went to Mr. Mais's home and insisted that he "get some tile on that roof." The next day, Mr. Mais brought a load of tiles and piled them on the roof.3 Ms. Braun paid Noel Mais the $3,000.00 down-payment specified in the contract by a check dated January 12, 1995, the day the contract was executed. Then, notwithstanding the payment schedule stated in the contract, Ms. Braun paid Mr. Mais $3,000.00 by check dated January 25, 1995. She paid Mr. Mais the remaining $1,000.00 due under the contract by checks dated March 28 and 31, 1995, and April 13, 1995. After receiving full payment, Mr. Mais abandoned the job, and, when Ms. Braun told Mr. Cote she had paid Noel Mais in full for the job, Mr. Cote refused to finish the work because he had not received any portion of the payment. In November, 1995, Ms. Braun contracted with R. J. Chambers Roofing, Inc., to complete the work on her roof for $4,500.00. The work was completed, and she paid Mr. Chambers the contract price. The evidence presented by the Department is sufficient to establish that Mr. Cote knew that Mr. Mais was not registered with the State of Florida as a roofing contractor and that Mr. Cote stated on the permit application that his company, JLC Enterprises, Inc., was the contractor for the Braun re-roofing job even though he was not a party to the contract.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Construction Industry Licensing Board issue a Final Order finding that Jacques Cote violated section 489.129(1)(e) and (n), Florida Statutes; imposing an administrative fine in the total amount of $1,000.00, consisting of a $500.00 fine for each of the two violations; assessing the costs of investigating and prosecuting the violations; and requiring Mr. Cote to make restitution to Judith Braun in the amount of $1,000.00. DONE AND ENTERED this 6th day of May, 1997, in Tallahassee, Leon County, Florida. PATRICIA HART MALONO Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 6th day of May, 1997.
The Issue The issue in this case is whether the Construction Industry Licensing Board should discipline the Respondent, Ysidro Cid Fernandez, on the basis of the charges alleged in the Administrative Complaint which the Petitioner, the Department of Professional Regulation, filed against him on November 30, 1987.
Findings Of Fact The Respondent, Ysidro Cid Fernandez, is licensed as a certified roofing contractor in the State of Florida, holding license number CC-C029602. The Respondent's license was in effect at all times referred to in these Findings of Fact. On or about March 15, 1986, an employee of Sunshine Solar and Roofing, a roofing company for which the Respondent acted as qualifying agent, entered into a contract with Fred Chambers to re-roof a house Chambers owned at 5871 64th Terrace North, Pinellas Park, Florida. The house was a small house, with not more than 1000 square feet of living area, and the contract was to re-roof the entire house for $600 plus tax ($31.50). The shingles to be used were to be 20-year shingles. The contract also provided: "Install on front F/S [far side] 8' long 5" wide T/G [tongue in groove] board." The Respondent's company did the work in April, 1986. Chambers paid the full amount of the contract, $200 down and the balance on or about May 1, 1986. Despite the re-roof, the roof still leaked where it did before the work was done. When Chambers called for warranty repair work, the Respondent refused until Chambers paid what the Respondent said was the cost of extra work the Respondent claimed Chambers had had the Respondent's workers do. The Respondent first came to the opinion that extra work had been done after he received invoices from his supplier indicating that his employees had ordered 1600 square feet of shingles for the job. The Respondent asserted that the contract called for only the front far side of the roof to be replaced. He bases this interpretation of the contract on the language quoted in the last sentence of Finding 2, above. The Respondent claimed that 1600 square feet was twice as much shingle as would be needed to re-roof half of the existing roof. Regardless whether the Respondent's employees ordered too much shingle for the Chambers job, or where the extra shingle might have gone, if not on the Chambers roof, the contract provided for the entire Chambers roof to be replaced for the contract price. The Respondent was not justified in demanding additional money before doing warranty work. The City of Pinellas Park, Florida, the governmental entity with jurisdiction over the Chambers job, required that a building permit be obtained before commencing the Chambers re-roofing construction. The City of Pinellas Park also required inspections of the Chambers re-roofing job. The Respondent claimed to have timely obtained a building permit for the Chambers job and, in testimony at final hearing, detailed an elaborate story about how he went about getting one. But the Respondent's own evidence, in the form of late-filed Respondent's Exhibit 2, establishes that he did not apply for the building permit until December 17, 1987, after receiving notice through the November 30, 1987, Administrative Complaint in this case, that the Department was charging him with failure to obtain a building permit for the job. Not having obtained a building permit, the Respondent did not call for the required inspections for the job. The evidence did not prove that the Respondent was grossly negligent or incompetent in estimating the cost of the Chambers job. First, the evidence did not prove that the job was seriously underestimated; to the contrary, the evidence tended to show that the Respondent's employees ordered more material than needed for the job. (When this came to the Respondent's attention, he unfairly blamed Chambers for having his employees do extra work not called for by the contract.) Second, the Respondent had nothing to do with the cost estimate on the job. The Respondent's price per square foot of roof area was fixed; he depended on his employees to accurately measure the size of the roof being priced. There is no evidence how the Respondent went about training his employees to measure a roof for purposes of a cost estimate. The Respondent has been disciplined by the Construction Industry Licensing Board once before. He received a reprimand in August, 1987, for failure to obtain a building permit.
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 suspending the Respondent's license for one year and fining the Respondent $2,500. RECOMMENDED this 25th day of July, 1989, in Tallahassee, Florida. J. LAWRENCE JOHNSTON Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 25th day of July, 1989. APPENDIX TO RECOMMENDED ORDER, CASE NO. 88-0570 To comply with the requirements of Section 120.59(2), Florida Statutes (1987), the following rulings are made on the Petitioner's proposed findings of fact (the Respondent not having filed any): Rejected in part (the Respondent's name is not Thomas L. Jackson); otherwise, accepted and incorporated. Accepted and incorporated. Rejected in part; the evidence did not prove that the roof was unfinished or that the roof was done correctly or that the work was done incorrectly, only that it leaked after the work was done. 4.-6. Accepted and incorporated. Rejected as not proven by the evidence. (See 3., above.) Accepted and incorporated. COPIES FURNISHED: David Bryant, Esquire 13014 North Dale Mabry Suite 315 Tampa, Florida 33618 Ysidro Cid Fernandez 2700 North McDill Avenue Suite 204 Post Office Box 4726 Tampa, Florida 33607 Ysidro Cid Fernandez 8109 Rivershore Drive Tampa, Florida 33604 Fred Seely, Executive Director Department of Professional Regulation Construction Industry Licensing Board Post Office Box 2 Jacksonville, Florida 32201 Kenneth Easley, Esquire General Counsel Department of Professional Regulation Northwood Centre 1940 North Monroe Street Suite 60 Tallahassee, Florida 32399-0729
The Issue Does the unsatisfied civil judgment in ABC v Millman et al, Case Number 50 2008 CA 006245 XXXX MB relate to practice of Respondent’s profession, thus establishing that Respondent, Harris M. Millman, violated section 489.129(1), Florida Statutes,(2009)? If he committed the violation, what penalty should be imposed?
Findings Of Fact The Construction Industry Licensing Board has certified Millman as a General Contractor and a Roofing Contractor under the authority of Chapter 489, Florida Statutes. In 2009 and 2010, he held license numbers CGC l1522 (General) and CCC 1327057 (Roofing). Millman’s licenses are presently inactive. Millman has actively practiced the licensed professions of general contractor and roofing contractor in Florida since 1977. The Department and its predecessor agencies have never taken any disciplinary action against him. At all times material to this proceeding, Affiliated was a Construction Qualified Business in the State of Florida, certified under Chapter 489, Florida Statutes, holding license number QB45287. Millman was the Primary Qualifying Agent for Affiliated under Chapter 489, Florida Statutes, at all times material to this proceeding. On December 26, 2005, Millman signed a credit application with American Builders and Contractors Supply Company, Inc., d/b/a ABC Supply Co. Inc. (ABC), on behalf of Affiliated. Millman listed his Certified General Contractor’s License (CGC 011522) on the credit application and personal guarantee Although Millman provided his General Contractor’s license number on the application, ABC did not require a license number. The application indicates that the account is related to “low and steep slope roofing.” The account was for the purchase of roofing materials and supplies. On December 29, 2005, Millman signed a personal guarantee of the Affiliated account with ABC. Millman’s personal guarantee made him personally liable for Affiliated’s obligation to pay ABC. ABC granted the application and opened a line of credit for Millman and Affiliated. Millman and Affiliated used the account to purchase roofing supplies on credit. They purchased and paid for over $800,000 worth of supplies from 2006 into 2009. This is separate from the goods and materials that were the subject of the lawsuit described below. Most of the materials and supplies that Affiliated purchased on the ABC account were for specific roofing projects. But some, as Millman acknowledged in his testimony, were to maintain roofing materials in the Affiliated warehouse. He used these on small jobs and to supplement materials purchased for larger, specific jobs. All the goods and materials purchased related to Millman’s practice of the roofing contracting profession. In 2007 Millman and Affiliated started having financial difficulties. Millman’s business began failing. The failure of a lender that took over a construction project it was financing resulted in the lender not paying Millman for approximately $500,000 worth of his company’s work. This contributed to Millman’s business failure. In addition to Millman’s problems paying ABC, his landlord was evicting him. Millman worked hard during these difficulties to meet his obligations to ABC. He liquidated his Individual Retirement Account and his life savings to make sure he paid for all charges for supplies used for specified customers. He did this to protect customers from the risk of liens being placed on their properties. Millman advised ABC that he was being evicted from his warehouse. He told ABC that the warehouse contained materials obtained with his line of credit that had not been paid for. Millman did not have the ability to return the materials to ABC. As eviction neared, he urged ABC to retrieve the materials before eviction. ABC did not act to retrieve the materials. The landlord evicted Millman. What happened to the materials is not known. On March 4, 2008, ABC sued Millman and Affiliated in the Circuit Court of the Fifteenth Judicial Circuit in and for Palm Beach County, Florida. ABC sought payment for goods and materials purchased on the account and delivered to Millman and Affiliated between January 31, 2007, and January 31, 2008. The court assigned the action Case Number 50 2008 CA 006245 XXXX MB. The goods and materials for which ABC sought payment were roofing goods and materials. They included roofing felt, roofing cement, shingles, plywood, lumber, roofing nails, lead sheets, insulation, roof tile cement, lead boots for pipes, roofing paint, asphalt, and galvanized roof edging. Much, although not all, of the material was delivered to roof tops. Many invoices for the material describe the roof for which the material is intended by height and pitch. The goods and materials related to Millman’s profession of roofing contractor. On June 17, 2008, barely three months after ABC filed suit, Millman entered into a Stipulation for Payment with Judgment upon Default with ABC. Millman agreed in the Stipulation for Payment with Judgment upon Default, that both he as an individual and Affiliated are indebted to ABC in the amount of $45,617.02. This amount included interest, attorney’s fees, and costs. The stipulation included a schedule of eight payments starting with a payment of $2,500.00 on May 30, 2008, and ending with a payment of $22,720.02 on December 30, 2008. Millman made payments from January 1, 2007, forward, even during and after the collection litigation. Millman made over $16,000.00 of those payments. But he did not make all of them. As Millman made payments, he took care to designate payments for supplies allocated to a specific customer and job. He did this to protect his customers from liens and to make sure that documents he signed attesting that supplies for specific jobs had been paid for were honest and correct. On August 3, 2009, the court rendered a Final Judgment After Stipulation in ABC’s collection action. The court adjudged that ABC recover $29,617.02 together with interest at the rate of 11 percent per annum accruing from May 31, 2008, from Affiliated and Millman, jointly and severally. The judgment is for debt incurred relating to Millman’s practice of his licensed profession of roofing contracting. It is not related to Millman’s licensed profession of general contracting. ABC continued to actively pursue collecting the judgment. It garnished Millman’s bank account with Bank Atlantic and obtained $662.61. Millman and Affiliated have not fully satisfied the judgment within a reasonable period of time. The Department incurred $216.00 in costs for the investigation and this action.
Recommendation Based on the foregoing Findings of Fact and Conclusion of Law, it is recommended that the Department of Business and Professional Regulation, Construction Industry Licensing Board, enter a final order finding that Respondent, Harris M. Millman, violated Section 489.129(1)(q), Florida Statutes, and imposing the following penalties: Payment of an administrative fine of $500.00 within 180 days of entry of the final order. Payment of costs of investigation and prosecution in the amount of $216.00 within 180 days of entry of the final order. DONE AND ENTERED this 27th day of August, 2010, in Tallahassee, Leon County, Florida. S JOHN D. C. NEWTON, II Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 27th day of August, 2010.
