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.
The Issue Whether Respondent committed the offenses alleged in the Administrative Complaint and the penalties, if any, that should be imposed.
Findings Of Fact Petitioner is a licensing and regulatory agency of the State of Florida charged with the responsibility and duty to prosecute administrative complaints pursuant to Chapters 455 and 489, Florida Statutes. At all times pertinent to this proceeding, Respondent was licensed as a certified building contractor and a certified roofing contractor, having been issued license numbers CC C027427 and CB C023123. At all times pertinent to this proceeding, MCI was a corporation engaged in roofing contracting, and Respondent was its qualifying agent. A re-roofing job by MCI on the shared roof of two townhouses located at 105 and 106 Woodland Road, the Village of Palm Springs, Florida (the Village), is at issue in this proceeding. These two townhouses are part of a building consisting of four townhouses. All four townhouses have a shared roof. Essentially, the work by MCI was to re-roof half of the entire roof. At the times material to this proceeding Lawrence Gauer owned the townhouse at 105 Woodland Road (Gauer townhouse) and RCM owned the townhouse at 106 Woodland Road (RCM townhouse). Both townhouses are within the permitting jurisdiction of the Village. Mr. Malt, Respondent's brother, owns RCM. Mr. Malt is a certified general contractor, developer, and real estate broker. Mr. Malt has extensive experience building townhouses, having built over 4,000 dwelling units, including the townhouses where the work at issue in this proceeding occurred. Mr. Malt also owns the company that manufactured the engineered pre-stressed concrete structural members that served as the foundation for the roof at issue in this proceeding. Mr. Malt is not a licensed roofing contractor, and his general contractor’s license does not authorize him to perform roofing work. In the fall of 1998, Mr. Malt determined that the RCM townhouse should be re-roofed. Mr. Malt contacted the owners of the other three townhouses to determine whether they wanted to re-roof their portions of the shared roof. Mr. Gauer decided to have his part of the shared roof re-roofed with Mr. Malt, but the owners of the other two townhouses declined. At all times material to this proceeding, Respondent authorized Mr. Malt to act as an agent for MCI. On January 7, 1999, MCI contracted with Mr. Gauer and with RCM to perform the work at issue in this proceeding. Mr. Gauer signed the contract in his capacity as owner of his townhouse. Mr. Malt signed the contract on behalf of RCM as owner of its townhouse. Mr. Malt also signed the contract on behalf of MCI in his capacity as its agent. The total amount of the contract was $5,000, with each owner (Mr. Gauer and RCM) being responsible for payment of $2,500. The contract required each owner to pay $1,250 upon execution of the contract with the balance due within five days ". . . of completion (inspection by the Village . . .)". On or about January 7, 1999, Mr. Gauer paid $1,850 to MCI. There was no explanation as to why Mr. Gauer paid more than the contract required on that date. Respondent's license number did not appear in the contract, and the contract did not contain a written statement explaining the rights of consumers under the Construction Industries Recovery Fund. On January 13, 1999, Mr. Malt, as agent for MCI, applied to the Village for the requisite building permits for the subject work. On January 13, 1999, the Village issued two separate permits, one for each townhouse, authorizing the re- roofing work contemplated by the subject contract. Each permit reflected that the valuation of the work was $2,500. Consistent with the applicable building code, the Village's building department issued a notice with each permit that because the roof was flat, the roof had to provide positive drainage to prevent the ponding of water or the roof had to be constructed of specific water retaining material. Mr. Malt, as agent for MCI, hired the crew that performed the roofing work at issue in this proceeding. At all times material to this proceeding, Mr. Malt supervised the roofing crew that worked on the two townhouses. Prior to beginning work on the roof, Mr. Malt checked weather forecasts for the area. On January 13, 1999, the roofing crew removed the existing roofing material from the roof. At the end of the workday, the crew covered the exposed roof with plastic sheeting commonly referred to as Visqueen. For a flat roof, the accepted standard in the roofing industry is to remove only as much roofing material as can be replaced with finished roofing material the same day. A plastic sheeting such as Visqueen is inadequate to protect an exposed flat roof from a heavy rainfall. The failure to adequately protect the exposed roof on January 13, 1999, constituted negligence. On the night of January 13, 1999, an unexpected heavy rainfall event occurred. As a consequence of the rainfall and the inadequately protected roof, substantial amounts of rainfall intruded in both townhouses, causing extensive damage. The work crew spent most of January 14, 1999, cleaning up following the rain event the previous day. As of Friday, January 15, 1999, the roof was still exposed. On that date, MCI installed a base coat of hot asphalt and insulation, which was inadequate to waterproof the flat roof. At the end of the workday, the roofing crew covered the roof with Visqueen and left for the weekend. On January 16, 1999, additional heavy rains occurred. Again, as a consequence of the rainfall and the inadequately protected roof, substantial amounts of rainfall intruded in both townhouses, causing additional damage to both townhouses. The failure to adequately protect the exposed roof constituted negligence. Mr. Gauer's homeowner's insurance company paid his policy limits for emergency services and repairs to his townhouse. The repairs were completed on or about February 19, 1999. Mr. Gauer subrogated his rights against MCI to his insurance company. There was a civil action pending by the insurance company against MCI at the time of the final hearing based on the subrogation rights. Mr. Gauer's homeowner's insurance did not cover damages to his or Mr. Poitivent's personal property. The value of those losses was not established. During the week beginning January 18, 1999, MCI installed new roofing material on the roof. In doing so, the roofing crew covered the clothes dryer vent for each townhouse with roofing material. As a result, Mr. Gauer's clothes dryer did not vent properly, and he paid an independent contractor $250.00 to inspect and clean out the dryer vent. MCI promptly corrected the deficient work after Mr. Gauer told Mr. Malt that his dryer vent had been covered during the re-roofing. The accepted standard in the roofing industry is that roof vents are not to be covered over without some specific instruction to do so. MCI's failure to adhere to that standard constituted negligence. MCI asserted that it completed the roofing work in 1999. At the times pertinent to this proceeding, Craig Johns was a building inspector for the Village. Mr. Johns inspected the subject roof on the following dates in 1999: June 15, July 15, August 12, and August 30. Following each inspection, Mr. Johns found that the roof did not pass inspection. Among other deficiencies, Mr. Johns found that the roof did not provide positive drainage, which was required for a flat roof covered in asphalt. 2/ As of the final hearing, MCI had not obtained a passing final inspection from the Village's building department. Mr. Malt established that Respondent had just cause to believe that MCI had completed all work on the project in 1999. Consequently, Respondent is not guilty of abandoning the work within the meaning of Section 489.129(1)(k), Florida Statutes (1997). As of June 15, 2001, Petitioner's costs of investigation and prosecution in this case, excluding costs associated with attorney's time, totaled $794.23. 3/
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner enter a final order finding Respondent guilty of the violations alleged in Counts I, II, V, and VI of the Administrative Complaint. The recommended penalty for the violation alleged in Count I is an administrative fine in the amount of $100. The recommended penalty for the violation alleged in Count II is an administrative fine in the amount of $100. The recommended penalty for the violation alleged in Count V is an administrative fine in the amount of $500. The recommended penalty for the violation alleged in Count VI is an administrative fine in the amount of $500. It is further recommended that the final order require Respondent to pay Mr. Gauer restitution in the amount of $250. It is further recommended that the final order require Respondent to pay investigative costs in the amount of $794.23. DONE AND ENTERED this 5th day of November, 2001, in Tallahassee, Leon County, Florida. CLAUDE B. ARRINGTON 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 5th day of November, 2001.
The Issue Whether Respondent should be disciplined for failure to comply with provisions of Florida law?
Findings Of Fact Respondent, George F. Garrard, is licensed as a registered roofing contractor holding State of Florida license number RC 0045805. On May 14, 1986, Respondent entered into a contract with Ronald Skinner to reroof a house located at 2226 Eudine Drive, in Jacksonville, Florida. The contract provided that Respondent would: "Tear off the entire roof to sheeting. Haul off all debris. Install 5 ply-build-up roof. New metal edging." In exchange for the work, the contract called for Respondent to receive $1100.00, $600.00 to be paid in advance for materials and $500.00 to be paid upon completion of the job. 2. Mr. Skinner paid Respondent the $600.00 advance for materials and work on the roof began the following day. While the work on the roof was in progress, Mr. Skinner conducted periodic inspections and noticed that the felt had buckled up. Mr. Skinner asked Respondent how he was going to fix the felt and Respondent said that he could fix the felt by cutting out the buckled parts and patching the felt. Mr. Skinner responded that he had a patched roof before and did not want another; he wanted a new roof. Respondent promised he would fix the problem. Prior to the work being completed, Respondent made a telephone call to Mr. Skinner and asked for payment of the remaining balance on the contract in order to purchase the materials needed to finish the job. Mr. Skinner agreed to meet John T. Garrard (Respondent's son) at the house and pay the balance. Respondent authorized Mr. Skinner to pay John T. Garrard. When Mr. Skinner arrived at the house, John T. Garrard and another person were unloading rocks from a pick-up truck and placing the rocks in a pile on the carport roof. Mr. Skinner paid John T. Garrard $500.00 and John T. Garrard wrote "Paid in Full" on the face of the contract and signed his name. A few minutes after Mr. Skinner left the house, John T. Garrard and the other person also left the house. Two or three days later, Mr. Skinner returned to the house. He noticed that no further work had been done. The rocks which had been unloaded from the pickup truck were still in a pile on top of the carport. Mr. Skinner was afraid the weight of the rocks would damage the carport so he spread the rocks on the roof. There were not enough rocks to cover the whole roof. Also, the rocks were loose because no tar had been spread on the roof to hold the rocks in place. Mr. Skinner contacted Respondent or someone in his household several times, and Respondent assured him he would finish the job. No further work was done on the roof by Respondent. Mr. Skinner last contacted Respondent by letter dated January 26, 1987, wherein he asked that Respondent finish the job since he had been paid in full. On the date of the hearing, the roofing job had not been completed. The rocks were still insufficient to cover the entire roof, no tar had been spread to hold the rocks in place, and the felt was still buckled in various places. Respondent never obtained a building permit for the reroofing job.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner enter a final order finding Respondent guilty of violating Sections 489.129(1)(d) and (k), Florida Statutes, and imposing a fine of $2,000 on Respondent. DONE and ENTERED this 30th day of March, 1988, in Tallahassee, Florida. JOSE A. DIEZ-ARGUELLES 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 30th day of March, 1988. COPIES FURNISHED: David L. Swanson, Esquire Department of Professional Regulation 120 North Monroe Street Tallahassee, Florida 32399-0750 George F. Garrard 4622 Tabernacle Place, East Jacksonville, Florida 32207 Fred Seely Executive Director Construction Industry Licensing Board Post Office Box 2 Jacksonville, Florida 32201 William O'Neil, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750
The Issue The issues are based upon an administrative complaint brought by the State of Florida, Department of Professional Regulation against Phillip E. Sheffield, Respondent. In particular, Respondent is said to have violated the building code of the City of Jacksonville, Florida by failing to obtain a building permit before commencing construction work related to a roofing project and building the roof to a slope that was contrary to that local building code. For violations of the City of Jacksonville building code, Respondent is said to have violated Section 489.129(1)(d), Florida Statutes, by willful or deliberate violation and disregard for the applicable building code of the municipality. Finally, Respondent is said to have violated Section 489.113(3), Florida Statutes by failing to subcontract roofing work.
Findings Of Fact Respondent, Harry Clinton Brackin, is a licensed registered roofing contractor holding license number RC0045880. Respondent was licensed at all times material to this action. Respondent is the owner and licensee for Brackin Roofing Company. Sometime around February 20, 1987, Respondent entered into a contract with Mrs. Arebelle S. Hughes, an elderly woman, to re-roof her house and remodel the front porch of her home located in Vernon, Florida. In addition to the work performed pursuant to the contract, there were verbal construction agreements between Mrs. Hughes and Respondent for the remodeling of the back porch, removing and closing out windows, replacing and framing doors, placing molding in the kitchen and various other carpentry repairs. Ms. Hughes asked Respondent to perform the additional work because she was well satisfied with the roofing job done by Respondent and she was unable to find a licensed contractor willing to come to Vernon and perform the work she wanted done. Respondent, in fact, informed Ms. Hughes he was not a contractor and in his opinion she needed a contractor. However, Ms. Hughes still wanted Respondent to do the additional work for the above reasons. Later, Mrs. Hughes became very dissatisfied with the quality of Respondent's remodeling work and advised the Respondent of her complaints. However, the evidence disclosed that her complaints were not well communicated and Respondent did generally try to meet Ms. Hughes' requests. None of Respondent's work constituted a hazardous condition and no evidence was offered which indicated an actual building code violation. The Respondent has not corrected the work. Mr. Harold Benjamin, an expert in the area of general contracting, reviewed the contract, the job site, the Respondent's license, and the pertinent Florida Statutes. Mr. Benjamin's expert opinion was that the Respondent's contracting job with Mrs. Hughes definitely exceeded the scope of Respondent's roofing license. Mr. Benjamin added that the carpentry work itself demonstrated an unfitness in the area of carpentry contracting and that Respondent's work did not in some respects meet the minimum carpentry standards for the industry. However, Respondent's work was not so bad as to constitute gross negligence in the area of contracting. This is particularly true since Respondent disclosed to Ms. Hughes that he was not a contractor and that the work she wanted done should be performed by one. Respondent's duty was thereby limited to a duty to perform reasonably given his abilities. Respondent did meet that duty. Respondent was disciplined for the same type of violation in 1986.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That the Department of Professional Regulation, Construction Industry Licensing Board impose an administrative fine of $2,500.00. DONE and ORDERED this 5th day of December, 1988, in Tallahassee, Florida. DIANE CLEAVINGER 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 5th day of December, 1988. APPENDIX TO RECOMMENDED ORDER, CASE NO. 88-2721 The facts contained in paragraphs 1, 3, 4, 6, 7 and 9 of Petitioner's Proposed Findings of Fact are adopted in substance, in so far as material. The facts contained in paragraphs 2 and of Petitioner's Proposed Findings of Fact are subordinate. The facts contained in paragraph 8 of Petitioner's Proposed Findings of Fact are adopted except as to the finding pertaining to gross negligence which is rejected. COPIES FURNISHED: Elizabeth R. Alsobrook, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 Harry Clinton Brackin Route 1, Box 2470 Chipley, Florida 32428 Bruce D. Lamb, Esquire General Counsel Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 Fred Seely, Executive Director Department of Professional Regulation Construction Industry Licensing Board Post Office Box 2 Jacksonville, Florida 32201
The Issue The issue for consideration was whether Respondent's license as a registered roofing contractor should be disciplined because of the misconduct alleged in the Administrative Complaint filed herein.
Findings Of Fact At all times pertinent to the issues contained herein, Respondent, Bruce D. Gayton, was licensed as a roofing contractor in Florida under license number RC0030867, but at the time of the misconduct alleged herein, the license was delinquent and invalid. Respondent's license was placed on delinquent status for non-renewal when it expired on June 30, 1987 and was considered invalid until reinstated in April, 1988. The Petitioner, Construction Industry Licensing Board, (Board), is the state agency responsible for the licensing of contractors in this state. On August 27, 1987, John M. Mack and his wife contracted with Respondent, doing business as Roofing Enterprises, to replace the roof on their 70 year old house in Clearwater. The contract called for Respondent to remove the old roof, replace all rotten wood, and install fiberglass shingles as well as all other actions part thereof, including cleanup. For this, the Macks agreed to pay Respondent $2,930.00 to be paid one- third at commencement, one-third when dried in, and the balance due upon completion. The term "dried in" means to cover the roof base with felt and secure it so as to prevent moisture incursion. This constitutes the subsurface for the final roof surface. The contract did not provide a completion date. Respondent guaranteed his work for five years. Respondent started work on September 9, 1989 and was paid the first $1,000.00 by check. He started tearing off the existing roof and five days later, when only one quarter of the existing roof had been removed, requested the second installment of the contract price. Mr. Mack was out of town at the time, but Mrs. Mack gave him a second $1,000.00 check. At that time, far less than one third of the project had been completed. After that second payment was made, Respondent did "minimal work" on the project. He would appear at the job only intermittently and when he did, would leave after only a short while. When Mr. Mack asked about this, Respondent indicated it was too hot to work after 11:00 in the morning. He also complained that because the sub-roof was made of hard, old white pine, it was very difficult to remove the old nails. For several days in early November, 1987, Respondent did not show up for work and Mack's efforts to reach him by phone were unsuccessful. He finally filed a complaint with both the Better Business Bureau and the Department of Professional Regulation. Finally, on November 14, 1987, Respondent came to the work site and left after two hours indicating he had a meeting with other contractors on other jobs. The next day, when Respondent did not show up, Mr. Mack went to his house whereupon Respondent stated he had spent most of the $2,000.00 the Macks had given him on other projects and to pay his workers and did not have enough funds to finish the job. Mr. Archer, the only employee to work on the Mack property has not been paid at all for his work. Nonetheless, Mr. Mack instructed Respondent to do what he could with what was left and when that was gone, he would pay the balance. Though Respondent had previously indicated to Mr. Mack that he had secured all required permits, the day after the above discussion, he stated he had not done so and left the job site to get it without doing any work that day. Over the next 11 days, Respondent spent a total of 20 hours on the job. On November 17, 1987 it rained and because the roof was not secure, water leaked into the house. The following day, Respondent did not arrive for work until 10:00 AM. On November 19, 1987, when Mr. Mack called the lumber yard from which Respondent had ordered the shingles, he was told they were scheduled for delivery COD and were on their way. When they arrived, Mr. Mack refused to accept them and pay for them because he had already paid Respondent $2,000. Respondent, when told of this development, agreed to borrow the money for them from his brother but was unable to do so, and in order to get the job finally done, Mr. Mack agreed to pay approximately $200.00 for them. They were ultimately delivered. The next day, Respondent telephoned Mr. Mack and said he was coming to the site and would stay until the job was done. However, he did not get there until after 10 and left at 3:30 PM with the job incomplete. At 8:00 AM the following morning, Respondent again called Mr. Mack and reported he did not have enough money for the required flashings. He indicated he would come to work and finish up the shingling, but did not show up at all that day. On the day after, Respondent came with his wife who worked with him for a short while. On this occasion, Mack gave Respondent some more money for supplies, but Respondent left again before the job was complete. Respondent neither showed up for work nor called on both the next two days, but on the following day, November 25, 1987, he finally finished up the job except for the gravel roof on the rear house and the front part of the main house. Because the Macks had a tenant in the rear house who they did not want disturbed, they did not permit Respondent to work there, but he did finally finish up the front of the main house roof and the work that was accomplished was done satisfactorily. There was, however, an unused chimney on the main house which Respondent should have removed and roofed over. Instead, he improperly attempted to roof around it and since he was unable to make the area water tight, it resulted in severe leakage into the house which caused damage to several ceilings and some furniture. Throughout the entire course of the work, Respondent applied improper pressure to the Macks. He repeatedly threatened to file for bankruptcy and not complete the work, prompting the Macks to pay him before contractually called for. At the time for final payment, when Mr. Mack indicated he wanted to have the job checked before making that last payment, Respondent became angry and walked off. He has not been seen or heard from since. As a result of Respondent's failure to properly manage his funds and accomplish the job in a timely and professional manner, the Macks have sustained substantial damage to their property and have had to expend additional funds to get the work done properly. Respondent should have identified the unused chimney at the time he bid for the job and provided for its removal. If this would cost more, he should have so indicated. His failure to identify the problem and correct it constitutes negligence since it is impossible to properly roof around such an obstruction without leaks. Based on the information available to him, Mr. Verse, the Department's expert, concluded Respondent was guilty of gross negligence because: He was required to get a permit for this project and failed to do so, He was required to request inspections of the project as it progressed and failed to do so, He took an unreasonable amount of time to complete the job, (roofs are usually replaced in an expedient manner because re-roofing generates exposure of the house and contents to weather conditions), He failed to properly place the felt and thereafter cover it with the final coat in a timely manner (qualified roofers recognize that felt is insufficient roofing to prevent leaking), He diverted funds from this project to others for which they were not intended, He failed to properly supervise his employees, He did not complete the work called for under the contract, He failed to honor his warranty, and He failed to properly remove the old chimney as a part of the re-roofing process. With the exception of the failure to complete the job which was caused by Mr. Mack's refusal to allow Respondent to complete the roofing project on the gravel roof, Respondent's actions as outlined herein constituted gross negligence. In addition, he violated existing local law by failing to get a permit and have the required inspections made; he failed to perform in a timely manner; he diverted funds; he abandoned the job without it being completed; and he failed to honor his warranty.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is, therefore: RECOMMENDED that Respondent, Bruce D. Gayton's, license as a registered roofing contractor be suspended for three years under such provisions for reinstatement as may be deemed appropriate by the Board, and that he be fined $1,000.00. RECOMMENDED this 11th day of August, 1989 at Tallahassee, Florida. ARNOLD H. POLLOCK 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 11th day of August, 1989. COPIES FURNISHED: Elizabeth R. Alsobrook, Esquire Department of Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792 Bruce D. Gayton 15010 113th Avenue #32 Largo, Florida 34644-4305 Fred Seely Executive Director Construction Industry Licensing Board Post Office Box 2 Jacksonville, Florida 32201 Kenneth A. Easley, Esquire General Counsel DPR 1940 North Monroe Street Tallahassee, Florida 32399-0792 =================================================================
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.
The Issue At issue in this proceeding is whether Respondent committed the offense set forth in the Administrative Complaint and, if so, what penalty should be imposed.
Findings Of Fact Preliminary matters At all times material hereto, Respondent, Carlos Morejon, was licensed by Petitioner, Department of Business and Professional Regulation, Construction Industry Licensing Board (Department), as a certified building contractor and as a registered residential contractor, having been issued license numbers CB C056745 and RR 0066530, respectively.3 In early 1993, following the landfall of Hurricane Andrew, Respondent and Sergio Casiano, a family friend, resolved to "start a company" to engage in contracting. At the time, Casiano was not certified or registered to engage in contracting, a circumstance known to Respondent; however, he apparently had years of experience in the construction trade. Conversely, Respondent, although certified and registered, was lacking in experience. According to Respondent, both he and Casiano would bid or contract jobs, and Casiano (variously described by Respondent as his field manager, superintendent, supervisor, or foreman) would actually oversee the construction, subject to Respondent's supervision "as much as my abilities" allowed.4 The Moreno job Pertinent to this case, Henry and Ester Moreno own, and have owned since approximately 1986, a single-family residence located at 8361 Southwest 47th Street, Miami, Dade County, Florida. As sited, the home is located in unincorporated Dade County. In early October 1993, the Morenos were driving in their neighborhood when they observed a house being re-roofed with a clay roof tile of a color and style they wanted installed on their home. The Morenos stopped and inquired of the owner regarding the contractor, and the owner advised them he would have the contractor contact them. That evening, Casiano telephoned the Morenos and arranged to meet with them at their home. At the meeting, the Morenos explained that they wanted to replace their existing shingles with clay roof tiles, and discussed price with Casiano; however, no agreement was reached. Before he left, Casiano gave them his business card. The card identified Casiano as the "manager" of a business described as follows: C.M. STATE BUILDING CONTRACTOR ROOFING CONTRACTOR CC# 19424 / CBC # 056745 Between Respondent and Casiano, "C.M." was understood to stand for Carlos Morejon. In August 1994, the Morenos finally resolved to have their home re-roofed, and they telephoned Casiano at the telephone number displayed on his business card. Casiano met with the Morenos on or about August 26, 1994, at which time they entered into a written agreement to remove and replace their existing roofing material. The agreement named Carlos Morejon as the contractor and Henry and Ester Moreno as the owners. Type of construction was noted as residential; project location was noted as 8361 S.W. 47th Street, Miami, Florida; and the owners' telephone number was noted as (305) 226-0503. Contract price was $6,200. The agreement was signed by Mr. and Mrs. Moreno, as owners, and Sergio Casiano, as project supervisor.5 Upon execution of the agreement, and consistent with its terms, the Morenos gave Casiano a check for fifty percent of the contract price ($3,100). The check, at Casiano's direction, was made payable to his order. Under the terms of the agreement, the balance of the contract price was to be paid as the work progressed. On August 30, 1994, with information provided by Casiano regarding the Moreno project, Respondent completed and signed a permit application, and submitted it to the Metropolitan Dade County Building and Zoning Department. The application identified the job address as 8361 S.W. 47th Street; the improvement as re-roofing, with a value of $6,000; and the owners' name and address as "Henry Moreno & Esther," 8361 S.W. 47th Street, Miami, Florida, with a telephone number of 226-0503. The application was also signed by Esther Moreno, as owner. The application was approved and the permit (number 94148351) was issued on August 31, 1994.6 Consistent with the terms of the agreement, the old roof material was removed, and the roof prepared to accept the new tile; however, cement roof tile was delivered instead of clay tile as requested by the Morenos. When advised of the error, Casiano removed the cement tiles from the job site, and on January 20, 1995, ordered clay tile from Metro Roof Tile, Inc. (Metro Roof), a local manufacturer of roof tiles. The clay tile was promptly delivered and installed. Up to that date, the Morenos had paid Casiano $5,650 of the contract price,7 with the balance of $550 due on final inspection. Casiano neglected to pay Metro Roof for the clay tile installed on the Moreno property, and on February 24, 1995, Metro Roof served the Morenos with a Notice to Owner stating that it had furnished materials for improvement of the property upon the order of Casiano. Subsequently, on April 5, 1995, Metro Roof filed a claim of lien against the property for the value of the clay tiles ($1,061.42), and served a copy of the claim of lien on the Morenos. Notwithstanding the pending claim of lien, as well as the lack of a final inspection, the Morenos met with Casiano on September 11, 1995, and inexplicably tendered to him the final payment ($550) that was due under the contract. Subsequently, the last inspection of the roof noted ten to fifteen loose tiles, and the project failed inspection. On November 22, 1995, Metro Roof, having failed to receive satisfaction of its lien, filed a civil action to foreclose its lien. The Morenos were duly served with a copy of the civil action, and on December 20, 1996, a "Final Judgment for Construction Lien Foreclosure" was rendered. The amount awarded was $1,234.42, and represented principal ($1,061.42), filing fee ($129.00), and service of process fee ($44.00). The Morenos satisfied the judgment by payment of the full amount awarded. The costs of investigation and prosecution At hearing, Petitioner offered proof, without objection, that its costs of investigation and prosecution, excluding costs associated with any attorney's time, totaled $701.96, as of April 23, 1998. (Petitioner's Exhibit 10). Previous disciplinary action On March 28, 1995, Petitioner issued a Uniform Disciplinary Citation against Respondent imposing an administrative fine of $500 for failure to provide proof, in response to a random audit, of having completed all required continuing education requirements before renewing his license. (Petitioner's Exhibit 11).
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered finding Respondent guilty of the violation alleged in Count I of the Administrative Complaint, and imposing, as a penalty for such violation, an administrative fine in the sum of $1,500; assessing costs of investigation and prosecution in the sum of $701.96; ordering the payment of $1,234.32 to Henry and Esther Moreno as restitution; and requiring Respondent to furnish the Construction Industry Licensing Board with proof that the Moreno roof work has successfully passed a final inspection. It is further RECOMMENDED that the Final Order dismiss Count II of the Administrative Complaint. DONE AND ENTERED this 10th day of August, 1998, in Tallahassee, Leon County, Florida. WILLIAM J. KENDRICK 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 10th day of August, 1998.
Findings Of Fact At the times pertinent to this proceeding, Respondent was not registered, certified, or otherwise licensed to engage in contracting in the State of Florida. At the times pertinent to this proceeding, Respondent conducted business through an entity known as C. J. Home Improvement Corporation, which was also not registered, certified, or otherwise licensed to engage in contracting in the State of Florida. In 1995, Joseph Pallant was one of the owners and the manager of a commercial building located at 3700 Biscayne Boulevard, Miami, Florida. In January 1995, Mr. Pallant entered into an agreement to lease the building for a term of ten years to a non-profit organization named PWAC, an acronym for People With Aids Coalition. PWAC had an office in the adjacent block and wanted to operate a thrift shop at the subject premises. The roof on the subject building leaked. The parties agreed that Mr. Pallant would pay to replace the roof and that PWAC would thereafter be responsible for maintenance. The officers of PWAC informed Mr. Pallant that they wanted Respondent to do the roofing work. There was a conflict in the evidence as to whether Mr. Pallant knew that Respondent was unlicensed. It is clear that Mr. Pallant and Respondent knew one another prior to January 1995. Based on Mr. Pallant's testimony, which the undersigned finds credible, it is found that Mr. Pallant knew that Respondent was in the building repair business, but that he did not know Respondent was unlicensed. Respondent's assumption that Mr. Pallant knew he was unlicensed is not as credible as Mr. Pallant's direct, unequivocal testimony that he had no such knowledge. After having several conversations with Mr. Pallant by telephone and at the building, Respondent prepared a written proposal on his business form to do the work necessary to replace the roof. The proposal was submitted to PWAC. The proposal described in detail the work that would be done and the materials that would be furnished, the time frame for the work, and the price. The price was set at $6,183.00 plus $400.00 if certain additional work would have to be done on certain drains. PWAC was provided a copy of the proposal that was dated February 25, 1995. Respondent signed this proposal and affixed the corporate seal of his business entity. Under Respondent's signature was the phrase "personally individually guaranteed." At all times pertinent to this proceeding, Respondent knew that Mr. Pallant was one of the owners of the building and that he would be paying for the roofing work. On February 27, 1995, Respondent and Mr. Pallant met. Respondent gave Mr. Pallant an unsigned copy of the written proposal (dated February 27, 1995, but otherwise identical to the form given PWAC, but dated February 25, 1995). After they discussed the work, Mr. Pallant accepted the proposal and gave Respondent a check made payable to C. J. Home Improvement in the amount of $3,100.00. Respondent accepted this check and deposited the proceeds of the check in his company's bank account. Without the prior knowledge or consent of Mr. Pallant, Respondent attempted to subcontract the roofing job to a licensed roofer named Don Palmier.1 No work was started on the job. In March 1995, Mr. Pallant met with representatives of PWAC and Respondent to discuss the lack of progress. As a result of that meeting, Mr. Palmier refused to proceed with the roofing job2 and Mr. Pallant learned that Respondent was unlicensed and could not do the work. During the course of the meeting PWAC cancelled its lease. Mr. Pallant subsequently filed suit against C. J. Home Improvement for the return of the $3,100.00. Despite obtaining a final judgment for that sum plus costs and fees, the Respondent has not satisfied any portion of the judgment. As of April 23, 1998, the Petitioner's costs of investigation and prosecution in this case, excluding costs associated with an attorney's time, totaled $269.62.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner enter a final order that adopts the findings of fact and conclusions of law contained herein; finds Respondent guilty of violating the provisions of Section 489.127(1)(f), Florida Statutes, as alleged in Count I of the Administrative Complaint; dismisses Count II of the Administrative Complaint; imposed an administrative fine against the Respondent in the amount of $2,500.00; and assesses costs against Respondent in the amount of $269.62. DONE AND ENTERED this 10th day of September, 1998, in Tallahassee, Leon County, Florida. CLAUDE B. ARRINGTON 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 10th day of September, 1998
