Judges: K. N. AYERS
Agency: Department of Business and Professional Regulation
Latest Update: Sep. 23, 1986
Summary: Failed to prove roofing contractor violated statute.
85-2468.PDFSTATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
STATE OF FLORIDA, DEPARTMENT ) OF PROFESSIONAL REGULATION, ) CONSTRUCTION INDUSTRY )
LICENSING BOARD, )
)
Petitioner, )
)
vs. ) Case No. 85-2468
)
BRUCE A. WILLIAMS )
)
Respondent. )
)
RECOMMENDED ORDER
Pursuant to notice the Division of Administrative Hearings by its duly designated Hearing Officer, K. N. Ayers, held a public hearing in the above-styled case on August 14, 1986, at Tampa, Florida.
APPEARANCES
For Petitioner: Lagran Saunders, Esquire and
Douglas W. Beason, Esquire
Department of Professional Regulation
130 North Monroe Street Tallahassee, Florida 32301
For Respondent: Dale M. Swope, Esquire
Suite 1425
201 East Kennedy Boulevard Tampa, Florida 33602
By Administrative Complaint filed June 19, 1985, the Department of Professional Regulation, Petitioner, seeks to revoke, suspend or otherwise discipline the license of Bruce A. Williams as a roofing contractor. As grounds therefor it is alleged Respondent's firm was grossly negligent and incompetent in repairing, under contract, the roof of a residence owned by Marshall Kent in Belleair Bluffs, Florida, that there were multiple code violations, and that the roof leaked after repeated attempts by Respondent to repair same.
At the hearing Petitioner called three witnesses, Respondent called three witnesses and 23 exhibits were marked for identification. Objection to Exhibit 16 was sustained and Exhibit 20 was never offered into evidence. All other exhibits were admitted into evidence.
Proposed findings have been submitted by the parties.
Treatment accorded those proposed findings are contained in the Appendix attached hereto and are made a part hereof.
FINDINGS OF FACT
Bruce A. Williams, Respondent, is the holder of a registered roofing contractor's license from the Florida Construction Industry Licensing Board. The license number is CC C020246. Respondent is vice president of Dean Roofing and Sheet Metal, Inc. (The Dean Company), Post Office Box 2077, Clearwater, Florida.
By proposal submitted March 31, 1983, and accepted by Marshall Kent on April 1, 1983, the Dean Company contracted to remove the existing roof on Kent's residence and replace same at a price of $8,600 (Exhibit 1). The work was supposed to start April 11, 1983 and be completed on April 15, 1983. This contract was signed on behalf of Dean Company by Bruce A. Williams, Respondent, as vice president of Dean Company and by Marshall Kent. Kent is an experienced residential contractor who acknowledged having built approximately 2,000 homes.
While removing the existing roof, Dean Company workers found the 30-year old house had three plys of roofing applied since the house was constructed and to remove this thick roof heavier equipment that normal was required.
Kent's residence had a tectum roof decking which consists of a metallic-fiber substance which has a long life and serves as inside ceiling and outside roof decking over which built up roofing is applied. While removing the existing roof the tectum deck was fractured and Kent ordered Dean Company workers off the Job.
By letter dated April 18, 1983 (Exhibit 6) Respondent advised Kent that the cost of replacing the damaged tectum would be borne by the Dean Company and it was necessary to get on with the project before additional damage was done through the areas of roof exposed by removal of the original roof.
Upon seeing Exhibit 6, K. A. Williams, president of Dean Company and father of the Respondent, concluded that the problems may have been exacerbated by a personality conflict between
Respondent and Kent, and turned the job over to R. L. MacMurry, another vice president at Dean Company, who had considerable experience in the roofing business.
By letter dated Apri1 19, 1983 (Exhibit 7) MacMurry, on behalf of Dean Company, advised Kent that since he questioned their ability to properly install the new decking to replace the damaged decking they would employ the services of a general contractor to replace the damaged tectum, and if the replaced tectum did not match the original tectum they would have the entire ceiling painted. Kent denies receiving this letter.
Kent refused these offers and by letter dated April 21, 1983 "Exhibit 8) R. A. Williams pointed out that Kent's refusal to allow Dean Company to immediately complete the roofing work in progress could lead to serious damage from water intrusion and that such damage would be Kent's responsibility.
On Friday, April 29, 1983 a meeting was held between the Kents, Williams and MacMurry at which Dean Company -agreed to immediately recommence roof work, bring in a general contractor to replace the damaged decking and complete the contract. Kent demurred until the agreement was reduced to writing, preferably by an attorney. Kent prepared an endorsement on Exhibit 9 in which responsibility for the repairs was, in Kent's opinion, shifted to the general contractor. This endorsement was accepted by the parties on May 3, 1983.
The residence was reroofed in accordance with the latter agreement and Kent never advised Dean Company that all work was not satisfactorily completed. Dean Company provided Kent with a five (5) year Roofing Guarantee (Exhibit 11) dated May 10, 1983, which was forwarded to Kent by letter dated May 11, 1983 (Exhibit 10) with an invoice for the total owed on the job (Exhibit 14). Kent responded with letter dated May 17, 1983 (Exhibit 23) contending he was not whole, the job was not. complete and the guarantee was a joke. Kent considered the Roofing Guarantee suspect because it was a form used by the Midwest Roofing Contractor's Association.
Shortly after this time Kent was hospitalized for psychiatric treatment and upon his release from the hospital in August 1983 he found that a mechanic's lien had been placed on his property by Dean Company. He also found what he believed to be leaks into the ceiling of a bedroom but made no complaint to Dean Company.
Kent then hired a roofer, Chuck Goldsmith, to inspect the work done on his roof. When Goldsmith tried to negotiate the dispute between Kent and Dean Company, Kent fired him. Kent then
hired William A. Cox, an architect and roofing consultant, to inspect the roof and advise what needed to be done.
Cox inspected the roof in late October 1983 and submitted a list of discrepancies he recommended for correction. In one place he was able to insert a knife blade between the Fla. roof and the vertical wall against which the roof abuts which indicated no sheathing had been installed. Expert witnesses opined that without metal sheathing the roof would have leaked within six to eighteen months and the roof could never have been intact for the 30 years the house had been built without sheathing at such a joint. The vertical side of the original flashing would have been under the stucco at this point and there was no evidence that the stucco was disturbed when the new roof was first installed by Dean Company. New flashing was subsequently installed by Dean Company at this juncture but no one testified respecting the flashing observed or not present when this new roof was removed to insert the new flashing. Failure to insert flashing at such a juncture of horizontal roof and vertical wall would constitute a violation of the Standard Building Code.
The report Cox gave to Kent was not made known to Dean until January 1984. By letter dated August 21, 1984 (Exhibit 13) Clark and Logan advised K. A. Williams that they would do all of the work listed in the Cox report on the Kent residence. This work was done in August 1984. Kent contends the leak continued in his bedroom after the work was completed but he never relayed this information to either Clark and Logan or to Dean Company.
He has yet to pay one penny for the work done on his roof. Kent considered Clark and Logan to be the prime contractor on the job at the time the August 1984 work was done. Kent further testified that following that work Clark and Logan abandoned the job and he also filed a complaint against that general contractor.
Since April 1983 following the damage to the tectum decking, Respondent, Bruce Williams, has had no responsibility for, and did no supervision of, the reroofing of Kent's residence.
When the roof was inspected by the Pinellas County Building Inspector he found the workmanship done on this job only slightly below standard.
At one place-on the roof Cox found the lower section of flashing overlapped the upper section of flashing which would have permitted water to enter under the flashing. This was a mistake but not an uncommon one for roofers to make. When pointed out to Dean Company the situation was promptly corrected.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the parties to, and the subject matter of, these proceedings.
Respondent is here charged with violation of Section 489.129(1) Florida Statutes which provides in pertinent part:
The Board may revoke, suspend, or deny the issuance or renewal of the certificate of registration of a contractor and impose an administrative fine not to exceed $5,000 . .
. if the contractor, or the business entity or any general partner, officer, director, trustee or member of a business entity for which the contractor is a qualifying agent, is found guilty of any of the following acts:
* * *
(d) Willful or deliberate disregard and violation of the applicable building codes or laws of the state or of any municipalities or counties thereof.
* * *
(m) (upon proof that the licensee is guilty of fraud or deceit or of gross negligence, incompetency, or misconduct in the practice of contracting.
Assuming, without deciding, that Respondent is responsible for the acts of Dean Company employees in removing the existing roof and installing a new roof on the Kent residence, Petitioner has failed to prove the charges alleged in the Administrative Complaint.
The burden is on Petitioner to prove the allegations contained in the Administrative Complaint. Balino v. Department of Health and Rehabilitative Services, 348 So. 2d 349 (Fla. 1st DCA 1977). While a standard of evidence to be used in this type case is not finitely established, where revocation of a license is involved the evidence required is more than a preponderance. As noted in Bowling v. Department of Insurance, 394 So. 2d 165 (Fla. 1st DCA 1981):
[W]hen the proceeding may result in the loss of a valuable business or professional license, the critical matters in issue must be shown by evidence which is indubitably as "substantial" as the consequences.
Clear and convincing evidence is the standard of proof for license revocation proceedings.
At the time the Dean Company billed Kent in May 1983 for the cost of the work performed, Kent had not indicated the job was incomplete and made no effort to communicate with any of the parties involved regarding completion of the project.
With respect to the two junctures where flashing was alleged to have been missing there was direct dispute regarding the presence of flashing at one of those junctures where a photograph showed what some witnesses identified as flashing and other witness could not identify as flashing. The one serious deficiency alleged was with respect to the evidence of flashing at a junction of the shingle roof and a parapet wall. No evidence was submitted regarding the actual presence or absence of this flashing when the newly installed roof was removed to install additional flashing at this juncture. In any event when the discrepancy was brought to the attention of the Dean Company this deficiency was corrected. Similarly the flashing section which incorrectly overlapped another section was corrected when pointed out, although this was certainly not a serious defect.
Willful violation of the code connotes an intentional failure to ensure flashing is installed at a juncture with roof and vertical wall rather than a failure to replace old flashing with new flashing at such a juncture or inadvertently omitting same. Overlapping sections of flashing in the wrong direction through negligence certainly does not equate to an intentional violation.
Similarly the evidence failed to show gross negligence on the part of the contractor in removing the existing roof and installing the replacement roof. Black's Law Dictionary, Revised, 5th edition, 1979 defines gross negligence as:
The intentional failure to perform a manifest duty and reckless disregard of the consequences affecting the life or property of another.
It is materially more want of care than constitutes simple inadvertence. It is an act or omission respecting legal duty of an
aggravated character as distinguished from a mere failure to exercise ordinary care. It is very great negligence, or the absence of slight diligence, or the want of even scant care.
From the foregoing it is concluded that Petitioner has failed to prove, by clear and convincing evidence, that Respondent violated the provision of Chapter 481.129(1)(d) and
(m) Florida Statutes as alleged. It is
RECOMMENDED that all charges proferred against Bruce A. Williams in Administrative Complaint filed June 19, 1985, be DISMISSED.
ENTERED this 23rd day of September, 1986 in Tallahassee, Florida.
K. N. AYERS, Hearing Officer Division of Administrative Hearings The Oakland Building
2009 Apalachee Parkway
Tallahassee, Florida 32399
(904) 488-9675
Filed with the Clerk of the Division of Administrative Hearings this 23rd day of September, 1986.
COPIES FURNISHED
Lagran Saunders, Esquire Department of Professional
Regulation
130 North Monroe Street Tallahassee, Florida 32301
Dale M. Swope, Esquire Post Office Box 3397 Tampa, Florida 33601'
Fred Roche, Secretary, Department of Professional
Regulation
130 North Monroe Street Tallahassee Florida 32301
Wings Slocum Benton, Esquire General Counsel
Department of Professional Regulationr
130 North Monroe Street Tallahassee, Florida 32301
Mr. Fred Seely, Executive Director Construction Industry Licensing Board Post Office Box 2
Jacksonville, Florida 32201
APPENDIX
Treatment accorded Petitioner's proposed findings
Included in Hearing Officer #1.
Included in Hearing Officer #2.
Included in Hearing Officer #3.
Included in Hearing Officer #4.
Included in Hearing Officer #5
Included in Hearing Officer #9 Kent, however at this time considered Clark and Logan to be the prime contractor.
Accepted insofar as included in Hearing Officer #10.
Accepted insofar as included in Hearing Officer #10.
Included in Hearing Officer #12.
Included in Hearing Officer #13.
Included in Hearing Officer #13.
Included in Hearing Officer 113.
Included in Hearing Officer #17.
Included in Hearing Officer #17.
Accepted.
Rejected as not supported by the evidence. Flashing was installed if only after Dean Company received the Cox report.
Included in Hearing Officer #3.
Included in Hearing Officer #14.
Accepted.
Included in Hearing Officer #14.
Accepted only insofar as included in Hearing Officer #14. Treatment accorded Respondent's proposed findings.
Included in Hearing Officer #1.
Included in Hearing Officer #2.
Included in Hearing Officer #3 and #4.
Included in Hearing Officer #4.
Included in Hearing Officer #7, 8, and 9.
6. | Accepted | insofar as included in Hearing Officer #10, #12 #13, |
and | #14. |
|
7. | Rejected | as irrelevant. |
8. | Rejected | as conclusion of law. |
9. | Rejected | as conclusion of law. |
Docket for Case No: 85-002468
Orders for Case No: 85-002468
