DEPARTMENT OF PROFESSIONAL ) REGULATION, CONSTRUCTION ) INDUSTRY LICENSING BOARD, )
vs. ) CASE NO. 86-2641
Respondent. )
Pursuant to written notice a formal hearing was held in this case before Larry J. Sartin, a duly designated Hearing Officer of the Division of Administrative Hearings, on July 21, 1987, in Tallahassee, Florida.
For Petitioner: W. Douglas Beason, Esquire
On May 20, 1986, the Petitioner, the Department of Professional Regulation, filed an Administrative Complaint against the Respondent, Welton Smith, with the Construction Industry Licensing Board seeking to discipline the Respondent's license as a general contractor. The Respondent executed an Election of Rights disputing the allegations of fact contained in the Administrative Complaint and requesting an administrative hearing.
At the final hearing the Petitioner presented the testimony of Edward B. Ashley, Lonnie Rackley, Mike Harrell and Charles Trent Manausa. Mr. Harrell and Mr. Manausa were accepted as experts in residential roofing. The Petitioner also offered 3 exhibits which were marked as "Petitioner's" exhibits and accepted into evidence.
The Respondent presented the testimony of U. J. White and testified on his own behalf.
At the commencement of the final hearing, the Petitioner's Motion to Deem Admitted was considered. Pursuant to this Motion, the Petitioner requested an Order deeming admitted those matters set forth in the Petitioner's First Request
for Admissions. The Request was served on December 4, 1986, and had not been responded to at the date of the hearing. The Motion was granted as to the first
3 requests and a ruling was reserved on the fourth request. The fourth request is hereby deemed admitted.
At the conclusion of the formal hearing the parties agreed that the deposition testimony of Joseph L. Shields, Esquire, could be taken by the parties and could be filed for consideration in this case. Mr. Shields' deposition was filed on August 19, 1987.
Proposed recommended orders were to be filed on or before August 19, 1987.
The Respondent filed his proposed order on time. The Petitioner filed its proposed order late along with a Motion for Extension of Time to File Proposed Recommended Order. That Motion is hereby granted. A ruling on each proposed finding of fact has been made either directly or indirectly in this Recommended Order or the proposed finding of fact has been accepted or rejected in the Appendix which is attached hereto.
Whether the Respondent's license as a registered general contractor should be disciplined?
The Respondent is a registered general contractor in the State of Florida. His license is number RG 0001015.
At all times material to this case, the Respondent has held license number RG 0001015.
The Respondent has been in the construction business for 51 to 52 years.
During the Fall of 1985, Mr. Edward J. Ashley discussed a construction project at Mr. and Mrs. Ashley's residence with the Respondent. The Ashley's residence is located at 2353 Hampshire Way, Tallahassee, Florida.
The Ashleys and the Respondent, on behalf of Big Bend Builders Corp., Inc., agreed on the construction work to be performed and the price to be paid for the work. The agreement was memorialized on October 7, 1985, (hereinafter referred to as the "Proposal"), by the Respondent and presented to the Ashleys.
Pursuant to the agreement between the Ashleys and the Respondent, Big Bend Builders Corp., Inc., was to construct a room addition to be used as a porch in the back of the existing residence, extend a master bedroom and bathroom, replace the tile in the bathroom, remove a partition between the kitchen and the living room and replace the existing roof with fiberglass shingles with a 20-year warranty.
The Ashleys agreed to pay the Respondent's corporation $28,300.00 in consideration of the work to be performed.
The Proposal presented to the Ashleys by the Respondent was never signed by the Ashleys but they did agree verbally to the work to be performed.
The Ashleys and the Respondent agreed verbally that the construction price would be paid in two installments. One installment was to be made when half the construction was completed and the other half was to be paid when the construction was completed.
The Ashleys made the first payment on December 5, 1985. The payment was for $14,000.00. Although the project was not completed, the Ashley's made a partial payment of $6,000.00 on January 10, 1986. The second payment was made earlier than agreed upon at the request of the Respondent. The Respondent told the Ashleys that the payment was needed so that the project, which was already late, could be completed.
The Ashleys and the Respondent agreed verbally that the construction would be completed by December 15, 1985.
Construction began at the Ashleys on November 14, 1985.
On November 22, 1985, the concrete slab for the addition to the Ashley's home was poured in the morning. That afternoon a hurricane struck and rain associated with the hurricane washed away the top layer of concrete.
The loss of the top layer of concrete caused the slab to be rough and uneven. It was especially unsightly in the area where the new room was being added as a porch. The Ashleys planned to leave this area uncovered. When they complained to the Respondent he told them not to worry, that he would take care of it. It was not repaired, however.
The slab was also uneven in the bathroom and approximately 1 and 1/2 inches higher than the existing slab in the master bedroom. These problems were also not corrected. The area where the new slab joined the existing slab in the master bedroom was ground down but a bump still remains.
The trusses of the addition to the residence were higher than the existing trusses. Although some of the problems associated with this problem were corrected, there remains a bump on the roof of the addition.
The wall between the bathroom and the master bedroom did not match the existing wall. This problem was not corrected and is still visible.
The Respondent filed an application for a building permit with the City of Tallahassee on November 12, 1985. The permit was issued on November 13, 1985.
The Respondent was required to arrange slab, framing, and insulation inspections and a final inspection of the construction at the Ashley's residence.
The Respondent had the slab inspection completed on November 19, 1985.
The framing inspection was conducted on December 11, 1985, by Mr. Rackley. The construction did not pass this inspection because there was no "header" over one door and the ceiling joists were not adequately attached.
It was the Respondent's responsibility to correct the problems found as a result of the framing inspection before proceeding with construction. The fact that the construction failed the framing inspection was noted on the copy
of the building permit which is displayed at the construction site. Ms. Ashley was the only person present during the inspection other than the inspector.
On December 17, 1985, Mr. Rackley saw the Respondent at a party and mentioned the door header and the failure of the residence to pass the framing inspection. The ceiling joists were not mentioned.
At the time the framing inspection was completed, the construction was
40 to 50 percent complete.
By letter dated February 12, 1986, Mr. Rackley asked the Respondent why the Respondent had not requested a re-inspection.
The Respondent proceeded with construction without passing a framing inspection. Therefore, in the February 12, 1986 letter from Mr. Rackley the Respondent was directed to uncover the areas which had failed the inspection so that they could be re-inspected.
The Respondent did not respond to Mr. Rackley's letter of February 12, 1986. Therefore, on February 24, 1986, the Respondent was contacted by Mr. Rackley by telephone. The Respondent agreed to open the areas necessary to complete the framing inspection.
On February 26, 1986, the framing inspection was completed. An opening had to be cut in the existing roof for the inspection to be completed.
The Respondent did not fail to arrange a re-inspection of the property in order to hide anything or cover-up improper work.
The construction passed the insulation inspection.
No final inspection of the construction has ever been requested or completed.
As a part of the Respondent's agreement with the Ashleys, the Respondent was to remove the roof on the existing structure and cover it and the new roof with fiberglass shingles with a 20-year life.
The shingles used by the Respondent were Temko shingles.
Manufacturers of roofing materials generally recommend how to apply their products in writing. Therefore, Temko included instructions for the application of the shingles used by the Respondent. The instructions were written on the paper used to wrap the bundles of shingles.
In order for the manufacturer's guarantee of the Temko shingles to be effective, the shingles must be installed according to the manufacturer's instructions.
The Southern Building Code, which applies in Leon County, also requires that manufacturer's instructions be complied with.
The following pertinent instruction, among others, was included with the shingles used on the Ashley's residence:
LOW SLOPE APPLICATION: On pitches of 2" per foot to 4" per foot, provide a double
underlayment of asphalt saturated felt by applying a 19" wide felt strip along the eaves and over this apply a full 36" wide sheet. Continue with full 36" wide sheets, lapping each 19" over the preceding course. If winter temperatures average 25 F or less, thoroughly cement the felt to each other with Temko plastic cement from eaves and rakes to a point a [sic] least 24" inside the inside wall line of the building.
This instruction is consistent with roofing industry standards.
The roof of the Ashley's residence pitches at 2" to 2 1/2" per foot. Therefore, the Respondent should have applied two layers of felt to the roof as specified in the "Low Slope Application" instruction. The Respondent's crew, however, only applied one layer of felt to the Ashley's roof.
The instructions for the shingles also specified that each shingle be attached with four nails placed in a particular pattern. The Respondent's crew did not follow these instructions.
Along the edges of the roof, the felt should have been cemented to the roof. It was not, however.
Shingles placed in the valleys on the roof were not attached in any manner to the roof.
The manner in which the roof was installed was incompetent.
After the roof was placed on the Ashley's residence, water leaked in at several locations. The Respondent did not return the Ashley's telephone call. One of the Respondent's work crew when informed about the leaks told Mr. Ashley that the roof was not leaking; that it was blowing in from outside.
Some of the problems with the roof were corrected by the Respondent. They were corrected, however, only after a building inspector was called in by the Ashleys. Even then, the leaks did not stop. The Ashleys subsequently paid another contractor $560.00 to correct problems with the roof.
Throughout the period of time that the Respondent's crew worked at the Ashley's residence, whenever a problem arose, the Ashleys would be told not to worry about the problem; that it would be taken care of. Many of the problems, however, were not taken care of by the Respondent.
Throughout the period of time that work was being performed at the Ashley's residence, there were numerous times when no one would perform any work at the Ashley's. Weeks would often go by without the Ashley's seeing the Respondent and without the Respondent's presence at the Ashley's.
During the period that work was being performed at the Ashley's residence, there was a great deal of rain and the temperature dropped below 40 degrees. These weather conditions slowed progress on completing the job. These weather condition were not unique, however, and the Respondent admitted that he knew it rains and gets cold often during the period of time involved in this proceeding.
One weather problem that the Respondent could not have reasonably foreseen was the hurricane which struck Tallahassee on November 22, 1985. As a result of damage to property caused by the hurricane, roofing and other materials were more difficult to obtain.
Rain associated with the hurricane washed away the top layer of the concrete from the slab that was poured the day the hurricane struck. The Respondent checked with the weather service that morning. Based upon the projected weather, the hurricane was headed away from Tallahassee and rain was not expected until that afternoon. The concrete was poured in the morning and would have been dry before the afternoon. The weather forecast was incorrect, however, and the rain struck earlier than expected.
After work had commenced on the Ashley's residence, the agreement was modified. The Respondent indicated that he could not do the tile work in the bathroom. Therefore, the agreed upon price for the project was reduced by
$2,000.00. The Ashleys also had the Respondent perform other work not originally agreed upon; 2 skylights and a door were added and additional brick work was performed. These changes caused some delay in completion of the project. The evidence did not prove, however, that all of the delay was attributable to the changes in the work to be performed. Much of the delay was caused by the fact that the Respondent's crew simply did not show up to work at the Ashley's residence.
The delays in completing construction at the Ashley's residence were on the whole not reasonable. Although days were lost because of weather conditions, including the hurricane, and changes in the work to be performed, the days that no work was performed were not reasonable or caused by these factors.
The Respondent failed to properly supervise the work performed at the Ashley's residence. Although the Respondent indicated that he relied upon the men who worked for him, he was ultimately responsible for the proper completion of the project. The project was not completed and some of the work performed was not performed in a satisfactory manner.
The Respondent was not allowed to complete the project. The Ashleys eventually got so fed up with the Respondent's failure to correct problems and to complete the project that they would not allow the Respondents onto the property.
Sometime after 1981, the Respondent received forms from the Petitioner which could be used to register his contracting license in the name of Big Bend Builders Corp., Inc. He asked his former attorney to complete the forms for him.
The forms were completed and placed in the Petitioner's mail.
The Respondent's license has not been registered in the name of Big Bend Builders Corp., Inc.
The Respondent believed that his license was being switched to the corporate name. He knew or should have known that the change had not been completed because he did not receive a copy of a license with the corporate name.
The Respondent's license had previously been held in a corporate name.
The heading of the Proposal indicates that it is a proposal of "Big Bend Builders Corp., Inc." The Proposal was signed by the Respondent and was also signed "Big Bend Builders Corp., Inc. by Welton Smith." Mr. Ashley understood that the agreement he was entering into was with Big Bend Builders Corp., Inc.
The two payments made by the Ashleys were made by checks. The checks were made out to Big Bend Builders Corp., Inc.
The building permit on the Ashley's residence was applied for and issued in the name of Big Bend Builders Corp., Inc.
Big Bend Builders Corp., Inc., was not qualified with the Petitioner.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction of the parties to, and the subject matter of, this proceeding. Section 120.57(1), Florida Statutes (1986 Supp.).
This proceeding is penal in nature. Bach v. Florida Board of Dentistry, 378 So.2d 34 (Fla. 1st DCA 1980). Because the Respondent's license is at stake, the evidence to support the charges must be clear and convincing. Turlington v. Ferris, So.2d , Supreme Court of Florida, Case No. 69- 561, July 16, 1987.
Section 489.129(1), Florida Statutes (1985), authorizes the Construction Industry Licensing Board to "revoke, suspend, or deny the issuance or renewal of the certificate or registration of a contractor and impose an administrative fine not to exceed $5,000, place a contractor on probation, or reprimand or censure a contractor if the contractor, ... is found guilty of" any of the acts specified in Section 489.129(1)(a)-(m), Florida Statutes (1985).
The Respondent has been charged in this case with having committed four of those acts.
First, it has been contended that the Respondent is guilty of violating Section 489.129(1)(d), Florida Statutes (1985):
Willful or deliberate disregard and violation of the applicable building codes or laws of the state or of any municipalities or counties thereof.
In particular, the Petitioner has alleged that the failure of the Respondent to insure that the work on the Ashley's residence received a passing framing inspection before proceeding with construction constituted a violation of this section.
The evidence proved that the Respondent arranged for a framing inspection at the Ashley's residence as he was required to do. The evidence also proved that the framing inspection was failed and that the failure was noted on the building permit located at the Ashley residence. The Respondent was also told about the failure to pass the framing inspection by Mr. Rackley at a party and in a letter sent to the Respondent's residence. Despite these facts and the fact that the Respondent should have known that he was required to insure that the framing inspection and all other inspections were completed, he
proceeded with construction on the project without passing the framing inspection. The Respondent's action was willful and deliberate and constitutes a violation of Section 489.129(1)(d), Florida Statutes (1985). Proceeding with construction without passing the framing inspection was in violation of applicable building codes.
Secondly, it has been contended that the Respondent is guilty of violating Section 489.129(1)(m), Florida Statutes (1985):
Upon proof that the licensee is guilty of fraud or deceit or of gross negligence, incompetency, or misconduct in the practice of contracting.
In particular, the Petitioner has contended that the Respondent is guilty of gross negligence, incompetence and/or misconduct in the practice of contracting for one or more of the following reasons:
Respondent failed to properly follow the manufacturer's recommendations with regard to installing and nailing the roof shingles;
Respondent failed to follow the manufacturer's recommendations with regard to providing the proper roof underlayment;
Respondent violated the local building code by failing to install proper steps when constructing the porch addition;
Respondent failed to properly install a french drain;
Respondent failed to proceed with construction in a reasonable and timely manner; and/or
Respondent failed to properly supervise the construction work performed at the job site.
The evidence failed to prove that the Respondent is guilty of the acts alleged in paragraphs (c) and (d) above. The evidence proved, however, that the Respondent is guilty of all of the other specific acts alleged by the Petitioner which are cited above. These acts of the Respondent constitute gross negligence, incompetency, or misconduct in the practice of contracting in violation of Section 489.129(1)(m), Florida Statutes (1985).
Finally, it has been contended that the Respondent is guilty of violating Section 489.129(1)(g), Florida Statutes (1985):
Acting in the capacity of a contractor
under any certificate or registration issued hereunder except in the name of the certificateholder 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 in this act.
Closely related to the alleged violation of Section 489.129(1)(g), Florida Statutes (1985), it has been contended that the Respondent is guilty of violating Section 489.129(1)(j), Florida Statutes (1985):
Failure in any material respect to comply with the provisions of this act.
In particular, it has been contended that the Respondent failed in a material respect to comply with Section 489.119, Florida Statutes (1985), by failing to qualify "Big Bend Building Corp., Inc." with the Construction Industry Licensing Board. Section 489.119, Florida Statutes (1985), requires generally that contractors qualify their business entities by approval of an application by the Petitioner.
The Respondent violated Section 489.129(1)(g), Florida Statutes (1985), by acting under the name of "Big Bend Building Corp., Inc. Although the Respondent filed an application in an effort to qualify the corporate name, the filing of the application was not complete before the Respondent began operating under the corporate name. Having failed to comply with the requirements of Section 489.119, Florida Statutes (1985), the Respondent is also in violation of Section 489.129(1)(j), Florida Statutes (1985).
Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED:
That the Respondent be found guilty of violating Sections 489.129(1)(d), (g), (j) and (m) and 489.119, Florida Statutes (1985). It is further
That the Respondent be required to pay an administrative fine of $2,000.00. DONE and ENTERED this 2nd day of September, 1987, in Tallahassee, Florida.
LARRY J. SARTIN
Filed with the Clerk of the Division of Administrative Hearings this 2nd day of September, 1987.
APPENDIX TO RECOMMENDED ORDER, CASE NO. 87-2641
The parties have submitted proposed findings of fact. It has been generally noted below which proposed findings of fact have been generally
accepted and the paragraph number(s) in the Recommended Order where they have been accepted, if any. Those proposed findings of fact which have been rejected and the reason for their rejection have also been noted.
Proposed Finding Paragraph Number in Recommended Order of Fact Number of Acceptance or Reason for Rejection
1 1 and 2.
2 56.
3 4.
4 5.
5-6 6.
7 7.
8 18.
9-10 18 and 61.
11-12 10.
13 39 and 41.
13 The first sentence is hereby accepted. The second sentence is not supported by the weight of the evidence. This state-
ment was made to the Ashleys but in regard to the problems they had with their roof.
14 43.
15-16 44.
17 21.
18 21, 23 and 25. The building inspector informed the Respondent of the failed framing inspection on December 17, 1985, and not December 7, 1985.
19 28.
20 26.
21 33 and 34.
22 Hereby accepted.
23 37 and 38.
24-25 Hereby accepted.
26 38.
27 37.
28-29 39.
30 38-39 and 42.
31-35 Cummulative.
36-37 57.
1 Hereby accepted.
2 2.
3 28 and 29. There was no "final inspection" performed on the project. There was a final framing inspection, however, that indicated that the work that originally failed the inspection had been performed correctly.
4-7 These proposed findings of fact are not supported by the weight of the evidence.
10-11 Hereby accepted.
12 62. The last sentence is not supported by the weight of the evidence.
Fred Seely, Executive Director Construction Industry Licensing Board Post Office Box 2
W. Douglas Beason, Esquire
