Florida Statutes, for which violations it seeks to impose, according to its post-hearing proposal, the requirement of $5600 restitution to Mr. Kenneth Jessell, a fine of $1500, and a one year suspension of Respondent's contractor's license.
The parties' Joint Prehearing Statement was admitted as Hearing Officer Exhibit 1.
Petitioner presented the oral testimony of Kenneth A. Jessell, Richard P. Scanlon, Gene O. Seymour, and Robert D. Hilson, and had admitted Petitioner's Exhibits 1, 2, 4, 5 and 6. Exhibit P-3 was marked for identification and proffered but not admitted.
Respondent presented the oral testimony of Sheldon Israel and Respondent and had admitted Respondent's Exhibits 1, 2, and 4. Exhibit R-3 was marked for identification and proffered but was not admitted.
At the close of hearing, Respondent moved for dismissal for failure of Petitioner to establish a prima facie case. That motion was taken under advisement and is addressed in the following conclusions of law. Upon the filing of a copy thereof as a post-hearing exhibit, judicial notice was taken of Section 3401.1(a)(3) South Florida Building Code, without objection.
Petitioner filed transcript herein, and the parties' timely filed their respective post-hearing proposals within the time extensions agreed-upon and granted. The parties' respective proposed findings of fact are ruled upon pursuant to Section 120.59(2), Florida Statutes, in the appendix to this recommended order.
Respondent is, and has been at all times material hereto, a certified roofing contractor, license number CCC02955I, whose address of record is 2311 N.
E. 35th Street, Lighthouse Point, Florida 33064.
On or about June 6, 1985, Respondent, doing business as Great Southern Industries, contracted with Mr. Kenneth Jessell to install a roof on Jessell's house at Lighthouse Point, Florida. The contract price was $5,600.
At no time relevant to the charges herein did Respondent or anyone else qualify Great Southern Industries nor did that name appear on Respondent's license. At hearing, Respondent admitted a violation of Section 489.129(1)(g), Florida Statutes, by acting in the capacity of a contractor under a name other than that appearing on his state certificate, and further admitted violation of Sections 489.129(1)(j) and 489.119, Florida Statutes, by failing to qualify a legal entity through which he was contracting. The parties stipulated those allegations of the complaint were to be considered proven. In mitigation, Respondent established that no fraud or deceit concerning who was actually performing the roofing work was perpetrated against Mr. Jessell, that Respondent's omissions were due to his misunderstanding of the legal requirements involved, and that at all times since its incorporation, August 31, 1984, Respondent has been sole shareholder, officer, and director of Great Southern Industries, Inc., a Florida corporation. Upon being made aware of his violations, he has ceased to do business as Great Southern Industries. There is no evidence of prior misconduct.
Respondent, as Great Southern Industries, partially completed work on Jessell's house and Jessell partially paid for said work when a dispute arose between Respondent and Jessell relative to the work.
Respondent began work on Jessell's roof on June 17, 1985. On June 18, 1985, a pitch fire broke out. The pitch fire resulted from a tar kettle which had not been appropriately handled by an employee of Respondent who had been assigned to tend it. Such fires are not uncommon in the industry. After the fire was put out, work ceased for the day, but Respondent appeared the very next day and continued with the roofing project. There is expert testimony that leaving such a pitch or tar fire unattended was negligent and that if the overly hot pitch or tar had then cooled overnight, been reheated, and used on Jessell's roof it would have been inadequate for the job. However, there is no direct credible testimony or documentary evidence that this is what actually occurred.
Mr. Jessell was not present on the site the next day and approximately 60-70 percent of the base layer of the roof had been tarred over before this event occurred.
Mr. Jessell is a college professor in finance and real estate. He has no expertise in contracting, roofing, or inspection of such jobs or the material used therein, but upon observation from the ground, without going onto the roof, Jessell decided the roof was not being properly constructed. On June 25, 1987, at Mr. Jessell's insistence, Gene O. Seymour, the Chief Building Inspector of the Broward County Building Department inspected the job, which he did not approve at that time. Respondent came back to conform the job to the inspector's concerns. Seymour did not approve the job at reinspection on July 1, so Jessell withheld payment. Respondent again returned and did some additional work. On July 9, the job again did not pass inspection. Respondent did further repairs on July 29. There were numerous other inspections but the job did not pass for one reason or another. On each occasion, Respondent came back to address the inspector's concerns. Seymour's testimony can be synopsized that he made an extraordinary number of inspections (at least 20) at Mr. Jessell's urging, and that the roof often failed to pass, mostly because the work was not yet fully completed. Inspector Seymour noted that sometimes the job would pass one inspection only to have Jessell call him back and show him new problems which had appeared in the interim. Seymour could not explain how this could be. He termed the job "jinxed." Respondent maintains, and Jessell denies, that Jessell frequently would go up on the roof and make suggestions to Respondent and his employees on how the roofing should be done, that Jessell pulled up on the felts, and that Jessell otherwise damaged the work done by Respondent and his crew. Having observed the respective candor and demeanor of Jessell and Respondent, and after considering and weighing the foregoing comments of Inspector Seymour and of all the witnesses' peripheral testimony on how rapid deterioration and excessive patching occurred, I find Respondent's explanation of the problems up to this point to be the more credible explanation, if a somewhat exaggerated one.
Up until August 22, 1985, Respondent came and fixed anything Jessell complained of or that had been noted by an inspector. Finally, on August 22, Inspector Seymour approved the job as ready for the addition of tiles. Jessell was still dissatisfied with the roof.. By this time, he had been up on it several times with and without Seymour. Jessell took photographs and sought out Seymour in his office. Seymour rescinded his approval due to the appearance of new water blisters. Both Jessell and Seymour concur that at this point there were no leaks. On August 30, Seymour inspected again. He cut deeply into the roofing material in three places; in each place, he cut down to the base plywood sheeting and found no evidence of any water. This type of testing is considered "destructive testing." He also observed gouges, slashes, and nails working out. He proposed that Jessell get an independent consultant to resolve the problems between them. Respondent obtained a visual inspection by Sheldon Israel who wrote a letter which was signed off on by a certified architect and which confirmed that the roof as completed by Respondent thus far complied with the intent of the South Florida Building Code, which Code has been adopted in Broward County. On September 20, Seymour gave final approval for the stage the job had reached based on the letter from Israel and the fact that the waterproof membrane which Respondent had installed was intact at that time.
Thereafter, Jessell hired Richard Paul Scanlon, a licensed and certified roofer, who eventually tore off what had been done by Respondent and did a complete "reroof" at a cost to Mr. Jessell of $6500.
Scanlon, qualified at hearing to give expert evidence in roofing contracting, saw the roof in January 1986, approximately six months after Respondent had left the job. During those six months, the unfinished roof had been sitting exposed to the elements, without tiles, and with numerous patches, gouges, and cuts in it. He opined that Respondent's work constituted poor work and gross negligence. His opinion is based on his visual inspection without any tests whatsoever. Errors in Respondent's work which he noted included mopping the tar the wrong way, improper water lapping, and use of some rag felts and some fiberglass felts as opposed to the use of fiberglass as required by the Jessells' contract with Respondent. (However, rag felts and fiberglass felts both meet Code requirements.) Scanlon felt there was a possibility the roof would slide if tiles were added atop Respondent's work but declined to say this was a probability. In order to give a roof warranty, Scanlon felt he had to tear off Respondent's work and "reroof." Whatever he may have found when he tore the roof off later was not explored.
Robert D. Hilson, a licensed and certified roofing contractor was also qualified as an expert witness. He also did not inspect the Jessell work until January 1986. He stated the number of patches over the base layer was excessive and unusual and the consistency of the tar was far too "runny," thin, and "gooey." As opposed to this thin consistency being clearly connected to the kettle fire and base coat mopping, Hilson indicated the consistency of tar he was objecting to was a last attempt at overpatching the base layer. He also testified that the roof patches had been lapped the wrong way and occasionally had been mopped inadequately or the wrong way, and he assumed the base layer was also lapped the wrong way, but he never "eyeballed" the base layer to verify this. He found water present at that time. He indicated 6 months exposure would have caused insignificant deterioration. Contrariwise, Sheldon Israel, also accepted as an expert, opined that possibly 6 months could have caused the deterioration Scanlon, Hilson and Jessell all described as existing in January 1986.
The contract between the Jessells and Respondent is ambiguous. One portion provides:
"5. Install Spanish Style, cement tile roof over 90 lb. roof surface."
Another paragraph provides:
"8. Owners to select specific colors of Gory Spanish S by 6/12/87 at 12:00 p.m."
Printed instructions (specifications) for installation of Gory roofing tile require water laps on 90 pound felt. The Southern Building Code requires prepared roof coverings to be applied in accordance with manufacturers' printed instructions for the products used. Respondent used 90 lbs. rag felts and some fiberglass felts. Both meet Code. Respondent admits he also installed a waterproof membrane or tile underlayerment that was manufactured especially to go underneath Genstar cement tile. This waterproof membrane can only be exposed to the elements without covering for 6-8 months before it is too damaged for use. Respondent planned to install Gory tile on top of the membrane but according to the best expert testimony Gory tile cannot competently be installed over such a waterproof membrane and its ability to be installed over fiberglass felts is questionable.
The dispute between Jessell and the Respondent was resolved and Mr. and Mrs. Jessell executed and tendered a full release dated March 20, 1986, for all work performed on their house by Respondent and Great Southern Industries, Inc.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction of the parties and subject matter of this cause.
Section 489.129(1), Florida Statutes, provides in pertinent part:
The board may revoke, suspend, . . . impose an administrative fine not to exceed $5000, place a contractor on probation, or reprimand or censure a contractor if the contractor . . . is found guilty of any of the following:
(g) Acting in the capacity of a contractor under any certificate of registration issued
hereunder except in the name of the certificate- holder or registrant as set forth on the issued certificate or registration, or in accordance with the personnel of the certificateholder or registrant as set forth in the application for the certificate or registration, or as later changed as provided this act.
(j) Failure in any material respect to comply with the provisions of this act.
(m) Upon proof that the licensee is guilty of fraud or deceit or of gross negligence, incom- petency, or misconduct in the practice of contracting.
Section 489.105(3), Florida Statutes provides in pertinent part: "Contractor" means the person who is qualified
for and responsible for the entire project
contracted for and means, except as exempted in this act, the person who, for compensation, undertakes to, submits a bid to, or does by himself or by others construct, repair, alter, remodel, add to, subtract from or improve any building or structure for others or for resale to others . . . . (Emphasis supplied)
Section 489.119, Florida Statutes, states in its relevant portion:
If an individual proposed to engage in contracting in his own name, registration or certification may be issued only to that individual.
If the applicant proposed to engage in contracting as a partnership, corporation, business trust, or other legal entity, the
applicant shall apply through a qualifying agent; . . . (Emphasis supplied)
Respondent has technically violated Sections 489.129(1)(g) and 489.129(1)(j) and 489.119, Florida Statutes, however no deceit or fraud has been established thereby.
Respondent's motion to dismiss is therefore denied.
Although it is considered incompetent/grossly negligent in the roofing industry to leave a kettle unattended, this error was not established and no misconduct or negligence in contracting could be directly traced to this incident.
The facts as found do not establish gross negligence, incompetency or misconduct.
There is no fraud or deceit involved in Respondent's actions with regard to the Jessell roofing project.
Respondent personally or by his crew responded to every request or complaint of the building inspector or owner until August 22, 1985. Everything he was asked to do, Respondent did, up to that date. There were no leaks up to that date and the building inspector signed off on the roof as ready for the installation of tile. All of these attempts at repair were made by Respondent in spite of the fact that the owner had withheld payment. Thereafter, Jessell still withheld payment and the parties were involved in negotiations which included a letter opinion in Respondent's favor by his consultant, Sheldon Israel. The building inspector again approved the project work to date of September 20, 1985. Contract negotiations between Jessell and Respondent were not resolved until March 1986. In light of Jessell's refusal to pay the balance in the interim, it is very questionable whether Respondent had any obligation to return and make repairs or otherwise protect his work on Jessell's roof, especially since Jessell was also negotiating with Scanlon to take over the job.
It was proved that Respondent installed a base layer of rag felt which was appropriate as a base for Gory tile and some fiberglass felt and a leakproof membrane which were not appropriate for Gory tile but which were appropriate as a base layer for cement tile. As to whether Respondent was required to use Gory or cement tile, the contract is ambiguous, or perhaps a better term is "contradictory." It was proved that the tar Respondent mopped on the patches was thin and would have been incorrect if it had been used on the base layer of rag and fiberglass felts and that some of the patches were incorrectly lapped but it was never proven that the tar on the base layer was inadequate or that the base layer of lapping was done incorrectly. The excessive patching and waterproof membrane seem to have been Respondent's last ditch effort to satisfy an extremely fussy customer who may even have tampered with Respondent's work.
Further, the expert opinion is divided upon whether the leakage and roof deterioration observed in January 1986, six months after Respondent left the job, was caused or aggravated by exposure to the elements and by deep testing cuts therein or whether it was the result of incompetency and/or gross negligence of the Respondent. Hilson and Scanlon base much of their ultimate negative opinion of the Respondent's work upon their belief that the job as done by Respondent did not meet the contract specifications for Gory tile and the Gory tile instructions for roof preparation for Gory tile and both felt that although the work met Code, even work that meets Code can be grossly negligent.
This analysis is difficult to justify in light of the contradictory terms of the contract, the release negotiated with regard to all elements of that contract and the concept that the Code is designed to guard against gross negligence and incompetence.
Respondent certainly showed poor judgment in mixing the base layer requirements for two different types of tile and in allowing himself to be goaded by the owner into excessive and haphazard inferior patching, but under the circumstances, there is not clear and convincing evidence of misconduct or gross negligence as those terms are commonly understood. Petitioner has failed to meet the burden of proof established by Bowling v. Department of Insurance,
394 So.2d 165 (Fla. 1st DCA 1981); Robinson v. Florida Board of Dentistry, 447 So.2d 930 (Fla. 2d DCA 1984; and Sneij v. Department of Professional Regulation, 454 So.2d 795 (Fla. 3d DCA 1984).
The charge of misconduct/gross negligence stems from a bona fide long- standing dispute, between private persons, involving the meaning of ambiguous terms in a contract. The jurisdiction to interpret contracts and provide remedies for their breach is vested solely in the judiciary. See Peck Plaza Condominium v. Division Of Florida Land Sales and Condominiums, 371 So.2d 152,
154 (Fla. 1st DCA 1979). Breach of a construction contract is not an enumerated ground for disciplining a contractor under Chapter 489, Florida Statutes. Where that dispute has been resolved by a release, Petitioner clearly seeks to exercise a power which it does not have.
In the absence of any record of prior wrongdoing, an appropriate fine for those technical violations proved is $500 apiece, for a total of $1000. For purposes of these proceedings, the charges under Section 489.119 combine with the other disciplinary charges so that only two offenses are proven out of a single act. Suspension or probation would serve no useful purpose under the circumstances.
