06-000125PL Department Of Business And Professional Regulation, Construction Industry Licensing Board vs. George Wallace Million Status: Closed Recommended Order on Thursday, April 20, 2006.

Summary: Respondent abandoned the roofing project. Recommend an administrative fine and restitution.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF BUSINESS AND )

PROFESSIONAL REGULATION, )

CONSTRUCTION INDUSTRY LICENSING )

BOARD , )

)

Petitioner , )

)

vs. ) Case No. 06 - 0125PL

)

GEORGE WALLACE MILLION , )

)

Respondent . )

)

RECOMMENDED ORDER

On March 8, 2006, an administrative hearing in this case

was held by videoconference between Tallahassee and Fort Myers,

Florida, before William F. Quattlebaum, Administrative Law

Judge, Divisi on of Administrative Hearings.

APPEARANCES

For Petitioner: Brian Patrick Coats, Esquire

Department of Business and

Professional Regulation

1940 North Monroe Street, Suite 42

Tallahas see, Florida 32309

F or Respondent: Michael F. Kayusa, Esquire

Post Office Box 6096

Fort Myers, Florida 33911

STATEMENT OF THE ISSUE S

The issue s in the case are whether the allegations of the

Administrative Complaint are correct, and , if so, what penalty

should be imposed.

PRELIMINARY STATEMENT

By Administrative Complaint dated October 26, 2005, the

Department of Business and Professional Regulation (Petitioner)

alleged that George Wallace Million (Respondent) violat ed

various statutes related to the practice of contracting. The

Respondent disputed the allegations and requested a formal

administrative hearing. The Petitioner forwarded the matter to

the Division of Administrative Hearings.

At the hearing, the Petitio ner presented the testimony of

one witness and had E xhibits 1 through 5, 8, and 10 through 23

admitted into evidence. The Respondent testified on his own

behalf, presented the testimony of three witnesses, and had

E xhibits numbered 1 through 3 admitted in to evidence.

The one - volume T ranscript of the hearing was filed on

March 21, 2006. The Petitioner filed a Proposed Recommended

Order.

FINDINGS OF FACT

1. At all time material to this case, the Respondent was a

certified contractor doing business as "A Quality Roofing of

Southwest Florida, Inc.," holding license number CCC 056383

issued by the Florida Construction Industry Licensing Board.

2. On or ab out May 6, 2004, the Respondent, doing business

as A Quality Roofing of Southwest Florida, Inc., subm itted two

proposals to Randy Whidden for roofing projects at the Whidden

residence located at 1718 Richmond Avenue, Lehigh, Florida. On

or about May 10, 2004, Mr. Whidden accepted the proposals and

signed the contracts.

3. One of the contract s was for a project identified as

"Flat Reroof , " in which a single - layer fiberglass sheet was to

be installed over a flat roof deck attached to the Whidden

residence at a cost of $1,200.

4. The other contract was for a project identified as

"Metal Roof - Over , " in wh ich a metal roof was to be installed

over the pre - existing shingle roof covering the Whidden

residence at a cost of $13,000.

5. S ubs ection 489.1425(1), Florida Statutes (2005) ,

requires that construction contracts in an amount exceeding

$2,500 include not ice of the Florida Homeowners' Construction

Recovery Fund. The Metal Roof - Over contract should have, but

did not, contain the required notice.

6. Both contracts required that a deposit of one - third the

contract total be provided at commencement with th e balance due

upon completion of construction.

7. On or about May 21, 2004, a single deposit of $5,000

was paid by check from Mr. Whidden to the Respondent.

8. Mr. Whidden believed that the job would be completed

within seven days from the delivery of materials to the work

site.

9. The Flat Reroof project commenced and was completed

without issue.

10. During approximately the last week of May, some of the

materials for the Metal Roof - Over were delivered to the Whidden

house, and work on the Metal Roof - Over commenced around the

beginning of June 2004.

11. Initial work on the project did not meet Mr. Whidden's

expectations. Portions of the roof were scratched and damaged

by the ladders used by the Respondent's employees who were

installing the ro of.

12. Mr. Whidden was also displeased by the fact that the

Respondent's employees scattered construction materials and

debris around the Whidden property. Mr. Whidden had offered to

permit the materials to be stored on his driv eway during the

constru ction. P hotos taken by Mr. Whidden (or by his wife in

his presence) displayed metal panels and other construction

materials scattered in various parts of the Whidden property for

a time sufficient to permit vegetation growth to occur around

the debris .

13 . Mr. Whidden expressed his unhappiness with the state

of the project to the Respondent, and a dispute occurred as to

who bore responsibility for the damaged metal panels.

Mr. Whidden asserted that the damage was caused by the

installation process used b y the Respondent's employees. The

Respondent asserted that the damage was a manufacturing defect

and that touch - up paint would remedy the problem, a solution

with which Mr. Whidden disagreed.

14. Work on the Metal Roof - Over project continued

sporadically through June 2004. At some point in late June or

early July, work on the project ceased. Water leaks began to

occur during July rains, and the interior of the Whidden

residence was damaged by the leaks.

15. The materials initially delivered to the wo rksite were

insufficient to complete the job. The Respondent did not obtain

the remainder of the materials until mid - August , at

approximately the same time that Hurricane Charley struck the

area . The hurricane damag ed other homes in the area , and work

on the Whidden project did not resume .

16. A meeting occurred in August 2004, with Mr. Whidden,

the Respondent, and a county roofing inspector present. At the

meeting, the participants agreed that within approximately one

week, the leaks in the Whidden s tructure would be repaired, and

that the remainder of the roof project would be completed within

three we eks. After the meeting, some roof leaks were repaired,

but otherwise work on the roof did not res ume.

17. One apparent reason for the delay was a co ntinuing

disagreement centered on replacement of missing shingles from

the existing roof. Mr. Whidden asserted that the Respondent's

salesman promised that shingles missing from the existing roof

would be replaced prior to the installation of the metal. The

contract for the Metal Roof - Over project does not address

replacement of shingles on the existing roof.

18. By letter to Mr. Whidden dated September 7, 2004, the

Respondent provided an explanation for the delay and stated that

the project would be c ompleted according to the contract,

including replacement or repair of missing or damaged materials.

19. By letter to the Respondent dated September 8, 2004,

Mr. Whidden disagreed with the Respondent's assertions and

requested that the project be comple ted by November, stating

"[t]hen I will look at it and decide what to do."

20. On an unidentified date in September 2004, an employee

of the Respondent arrived to apply paint to some scratched

roofing panels, found the roofing job was incomplete, and left

the property. Mr. Whidden believed that the employee would

advise the Respondent that the roofing job remained unfinished.

21. By letter to the Respondent dated November 2, 2004,

Mr. Whidden noted that although the "major leaks" were repaired

by mid - S eptember, the job remained unfinished. Mr. Whidden

wrote that he believed that the Respondent was "in no way able

to provide a professional grade roofing system for my home" and

requested that the Respondent refund his deposit, "pay for the

damages to my home, pay to tear down the part of the roof you

installed as well as the shingle roof, and pay for all repairs

due to rotten wood." Mr. Whidden wrote that he would "pay a

professional contractor to install a new roof."

22. In early November 2004, Mr. Whi dden contacted another

roofing contractor to obtain various estimates on the metal roof

project, including an estimate of $12,000 to remove the

partially - installed metal and the existing shingle roof system,

replacement of wood rot , and installation of fel t paper. An

estimate to install a new metal roof ranged from $11,500 to

$19,500, depending on the type of metal system desired.

23. At some point, the figure of $20,000 was identified as

the cost to perform the work requested by Mr. Whidden. By

letter t o Mr. Whidden dated November 9, 2004, the Respondent

declined to pay $20,000. The letter stated that the job would

either be finished pursuant to the contract, or that the $5,000

deposit would be refunded , and the Respondent would "remove and

dry - in the m etal roof and remove any metal panels or trash that

was left in your yard."

24. By letter to Mr. Whidden dated November 12, 2004, the

Respondent stated that the job would be finished pursuant to the

contract, and that additional work could require additio nal

charges.

25. By letter to the Respondent dated November 14, 2004,

Mr. Whidden demanded that the roof be "replaced all the way down

to the rot." Mr. Whidden referenced information he had obtained

about the Respondent's business and personal life, an d wrote

"the only time I want to see you . . . on my property is with a

local inspector present. Any other time I will have you

arrested for trespassing." The letter concluded by advising the

Respondent to send his reply to a local law firm representing

Mr. Whidden.

26. By letter to Mr. Whidden dated November 15, 200 4 ,

Frank Manor, the general manager of the Respondent's company ,

informed Mr. Whidden that he had assumed the responsibility for

resolving the situation. Mr. Manor suggested several option s,

the first being total removal and replacement of the unfinished

metal roof at no additional cost. A second option proposed was

to remove the partially installed metal roof as well as the

underlying shingle roof at an additional cost of $4,500, with

any wood rot repair being billed based on time and material

costs. The letter suggested that any funds required be held in

escrow by the Respondent's attorney until such time as the work

was completed.

27. By letter to Mr. Whidden dated November 18, 200 4 ,

Frank Manor advised that work was tentatively scheduled to begin

on November 22, 200 4 , and that Mr. Manor hoped to "touch base"

with Mr. Whidden prior to that date.

28. By letter to Mr. Whidden's attorney dated November 22,

200 4 , Frank Manor advised th at work had been scheduled to begin

on that date, but there had been no confirmation by Mr. Whidden

as to his agreement , and the Respondent was uncertain how to

proceed.

29. Mr. Whidd e n filed a complaint with the Department of

Business and Professional Regulation (DBPR) which resulted in

negotiations to resolve the dispute. By undated letter to the

Respondent apparently sent January 21, 2005, Mr. Whidden

restated his complaints regarding the Respondent , and again

demanded that the entire roof be replace d, including the

underlying shingles, or that the Respondent refund the deposit

and pay damages identified by Mr. Whidd e n's attorney.

30. By letter to the Respondent dated August 3, 2005,

Mr. Whidden noted that he was unhappy with the resolution of the

co mplaint he filed with DBPR and had forwarded his complaints to

various other agencies. He also stated that he intended to file

suit against the Respondent unless the Respondent agreed to one

of two options proposed in the letter. The options were

present ed as follows:

You can either:

Show up to my house in the next ten days,

replace all of the metal, and finish my job,

get an inspection, and do a quality job.

Deduct my $1,000.00 insurance deductible

from the remaining balance that would be due

at complet ion. You will be paid what you

are owed and I will have a full warranty.

(By the way, my roof leaks right now around

the vent stacks)

Or:

Pay me my $5,000 deposit back, pay the

$12,000.00 it will take to remove your

shoddy work and get the roof back read y for

metal, pay my $1,000 insurance deductible

(from the $10,000.00 you did in damage to my

home) and I will go away.

31. By letter to the Respondent dated August 29, 2005,

Mr. Whidden noted that there has been no response to his

August 3rd letter, an d again asked for a reply. In the letter

Mr. Whidden asserted that the Respondent "has access to my

property as a jobsite during normal business hours as long as

there is a current permit allowing A Quality Roofing to do work

on my home." Mr. Whidden fur ther wrote , " I want my roof

finished per contract."

32. The Respondent did not complete the work identified on

the Metal Roof - Over contract. No work of substance occurred on

the Metal Roof - Over project after July 2004.

CONCLUSIONS OF LAW

33. The Div ision of Administrative Hearings has

jurisdiction over the parties to and the subject matter of this

proceeding. § 120.57, Fla . Stat . (200 5 ).

34. The Petitioner has the burden of proving by clear and

convincing evidence the allegations set forth in the

A dministrative Complaint against the Respondent. Department of

Banking and Finance v. Osborne Stern and Company , 670 So. 2d 932

(Fla. 1996); Ferris v. Turlington , 510 So. 2d 292 (Fla. 1987).

In this case, the burden has been met.

35. Section 489.129, Flo rida Statutes (2005) , provides in

part as follows:

489.129 Disciplinary proceedings. --

(1) The board may take any of the following

actions against any certificateholder or

registrant: place on probation or reprimand

the licensee, revoke, suspend, or den y the

issuance or renewal of the certificate,

registration, or certificate of authority,

require financial restitution to a consumer

for financial harm directly related to a

violation of a provision of this part,

impose an administrative fine not to exceed

$10,000 per violation, require continuing

education, or assess costs associated with

investigation and prosecution, if the

contractor, financially responsible officer,

or business organization for which the

contractor is a primary qualifying agent, a

fina ncially responsible officer, or a

secondary qualifying agent responsible under

s. 489.1195 is found guilty of any of the

following acts:

* * *

(i) Failing in any material respect to

comply with the provisions of this part or

violating a rule or lawful order of the

board.

(j) Abandoning a construction project in

which the contractor is engaged or under

contract as a contracto r. A project may be

presumed abandoned after 90 days if the

contractor terminates the project without

just cause or without proper notification to

the owner, including the reason for

termination, or fails to perform work

without just cause for 90 consecut ive days.

* * *

(m) Committing incompetency or misconduct

in the practice of contracting.

36. Section 489.1425, Florida Statutes (2005) , requires

that contractors notify property owners of the Florida

Homeowners' Construction Recovery Fund, and provides as follows:

489.1425 Duty of contractor to notify

residential property owner of recovery

fund. -

(1) Any agreement or contract for repair,

restoration, improvement, or construction to

residential real property must contain a

written statement expl aining the consumer's

rights under the recovery fund, except where

the value of all labor and materials does

not exceed $2,500. The written statement

must be substantially in the following form:

FLORIDA HOMEOWNERS' CONSTRUCTION

RECOVERY FUND

PAYMENT MA Y BE AVAILABLE FROM THE FLORIDA

HOMEOWNERS' CONSTRUCTION RECOVERY FUND IF

YOU LOSE MONEY ON A PROJECT PERFORMED UNDER

CONTRACT, WHERE THE LOSS RESULTS FROM

SPECIFIED VIOLATIONS OF FLORIDA LAW BY A

LICENSED CONTRACTOR. FOR INFORMATION ABOUT

THE RECOVERY FU ND AND FILING A CLAIM,

CONTACT THE FLORIDA CONSTRUCTION INDUSTRY

LICENSING BOARD AT THE FOLLOWING TELEPHONE

NUMBER AND ADDRESS:

The statement shall be immediately followed

by the board's address and telephone number

as established by board rule.

(2)(a) Upon finding a first violation of

subsection (1), the board may fine the

contractor up to $500, and the moneys must

be deposited into the recovery fund.

(b) Upon finding a second or subsequent

violation of subsection (1), the board shall

fine the contra ctor $1,000 per violation,

and the moneys must be deposited into the

recovery fund.

37. The evidence establishes that the Respondent failed to

include the required statement in the contract for the Metal

Roof - Over project and thereby violated S ubs ection 489.129(1)(i)

and Section 489.1425, Florida Statutes (2005) .

38. The evidence establishes that the Respondent violated

S ubs ection 489.129(1)(j), Florida Statutes (2005) , by abandoning

the project. The evidence establishes that the Whidden Metal

Roof - O ver project commenced at about the beginning of June 2004.

After July 2004, no work of substance occurred on the project ,

and the roof project was not completed.

39. The evidence fails to establish that there was just

cause for the abandonment. The Re spondent suggested in part

that the impact of Hurricane Charley explained the delay in the

project; however, the evidence fails to support the assertion.

Insufficient materials were delivered at commencement of the

project, and therefore the project could not have been completed

by August 2004 despite the impact of the hurricane. Once

materials were available in August 2004, the Respondent failed

to resume work on the project. The fact that other area homes

had storm - related roof damage does not excuse t he Respondent's

non - performance at the Whidden property, where roof leaks were

also occurring.

40. At no time did the Respondent provide notice to

Mr. Whidden that work was being terminated. At hearing, the

Respondent implied that Mr. Whidden's letter o f November 14,

2004 (wherein he stated that he did not want the Respondent on

his property without being accompanied by a local inspector) ,

prevented completion of the job; yet the November 15 letter to

Mr. Whidden from the Respondent's general manager cle arly

establishes that Mr. Whidden's letter was not interpreted in

such manner at the time. In any event, beyond a continuing

exchange of correspondence and sporadic meetings at the job

site, no work of substance was completed on the roof after

July 2004 , other than in September when some leaks were

repaired.

41. The evidence establishes that the Respondent violated

S ubs ection 489.129(1)(m), Florida Statutes (2005) , by committing

incompetency or misconduct in the practice of contracting by

abandoning the p roject, by failing to maintain worksite

conditions in a proper manner, and by failing to timely complete

the roof resulting in water intrusion at the Whidden home.

42. Pursuant to S ubs ection 455.2273(1), Florida Statutes

(2005) , the Petitioner has adopt ed disciplinary guidelines which

govern the penalty imposed in this case. The administrative law

judge is bound by such guidelines, including consideration of

mitigating or aggravating circumstances upon which the

recommended penalty is based. § 455.2273 (5), Fla . Stat . (2005) .

43. Florida Administrative Code Rule 61G - 17.001 provides

in relevant part as follows:

61G4 - 17.001 Normal Penalty Ranges.

(1) The following guidelines shall be used

in disciplinary cases, absent aggravating or

mitigating circumstan ces and subject to

other provisions of this chapter.

* * *

(i) Section 489.129(1)(i), F.S.: Failing

in any material respect to comply with the

provisions of Part I of Chapter 489, F.S.

* * *

4. Section 489.1425, F.S.: Failure to

notify resi dential property owner of

recovery fund. First violation, $250 to

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

$5,000 fine.

* * *

(j) Section 489.129(1)(j), F.S.:

Abandonment. First violation, $5,000 to

$1,000 fine and/or probation; repeat

violation, $5,000 fine and revocation.

* * *

(m) Misconduct or incompetency in the

practice of contracting, shall include, but

is not limited to:

1. Failure to honor a warranty.

2. Violation of any provision of Chapter

61G4, F.A.C., or Chapter 489, Part I., F.S.

3. Failure to abide by the terms of a

mediation agreement.

4. The following guidelines shall apply to

cases involving misconduct or incompetency

in the practice of contracting, absent

aggravating or mitigating circumstances:

a. Misconduct by failur e to honor warranty.

First violation, $1,000 to $2,500 fine;

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

suspension or revocation.

b. Violation of any provision of Chapter

61G4, F.A.C., or Chapter 489, Part I, F.S.

First violation, $1,000 to $2,500 fine;

repeat violations, $2,500 to $5,000 fine and

suspension or revocation.

c. Any other form of misconduct or

incompetency. First violation, $500 to

$1,000 fine and probation; repeat violations

$1,000 to $5,000 fine and suspension or

revocation.

44. Flori da Administrative Code Rule 61G - 17.002 provides

in relevant part as follows:

61G4 - 17.002 Aggravating and Mitigating

Circumstances.

Circumstances which may be considered for

the purposes of mitigation or aggravation of

penalty shall include, but are not lim ited

to, the following:

(1) Monetary or other damage to the

licensee’s customer, in any way associated

with the violation, which damage the

licensee

has not relieved, as of the time the penalty

is to be assessed. (This provision shall

not be given effect to the extent it would

contravene federal bankruptcy law.)

(2) Actual job - site violations of building

codes, or conditions exhibiting gross

negligence, incompetence, or misconduct by

the licensee, which have not been corrected

as of the time the penalty is being

assessed.

(3) The danger to the public.

(4) The number of complaints filed against

the licensee.

(5) The length of time the licensee has

practiced.

(6) The actual damage, physical or

otherwise, to the licensee’s customer.

(7) The deterrent ef fect of the penalty

imposed.

(8) The effect of the penalty upon the

licensee’s livelihood.

(9) Any efforts at rehabilitation.

(10) Any other mitigating or aggravating

circumstances.

45. No aggravating or mitigating circumstances exist which

warrant va riance from the disciplinary guidelines adopted by the

Petitioner.

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 Licen sing Board, enter a f inal

o rder imposing the following penalty:

1. A total administrative fine of $6,000 which includes:

a fine of $500 for failing to include notice of the Florida

Homeowners' Construction Recovery Fund in the contract, a

violation of S u bs ection 489.1 29(1)(i) and Section 489.1425,

Florida Statutes (2005) ; a fine of $5 ,0 00 for abandonment of the

Whidden Metal Roof - Over project, a violation of S ubs ection

489.1 29(1)(j) , Florida Statutes ; and a fine of $ 500 for

incompetency and misconduct in the practice of contracting, a

violation of S ubs ection 489.1 29(1)(m) , Florida Statutes.

2. F inancial restitution to Mr. Whidden in a total amount

of $15,800 , which includes repayment of the remaining deposit

funds in an amount of $3,800 (an amount calcula ted by deducting

the $1,200 cost of the completed Flat Reroof project from the

original $5,000 deposit) and payment of $12,000 to cover the

cost of remov ing the partially - installed metal and the existing

shingle roof system, replacement of wood rot , and in stallation

of felt paper .

3. Suspension of the Respondent's licensure until

administrative fines and restitution are made in full, followed

by a period of three years ' probation.

DONE AND ENTER ED this 20th day of April , 2006 , in

Tallahassee, Leon Cou nty, Florida.

S

WILLIAM F. QUATTLEBAUM

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 20th day of April , 2006 .

COPIES FURNISHED :

Michael F. Kayusa, Esquire

Post Office Box 6096

Fort Myers, Florida 33911

Brian Patrick Coats, Esquire

Department of Business and

Professional Regulation

1940 North Monroe Street, Suite 42

Tallahassee, Florida 32309

Josefina Tamayo, General Counsel

Department of Business and

Professional Regulation

Northwood Centre

1940 North Monroe Street

Tallahassee , Florida 32399 - 0792

Tim Vaccaro, Director

Department of Business and

Professional Regulation

Northwood Centre

1940 North Monroe Street

Tallahassee, Florida 32399 - 0792

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit writte n exceptions within

15 days from the date of this Recommended Order. Any exceptions

to this Recommended Order should be filed with the agency that

will issue the Final Order in this case.