STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF PROFESSIONAL )

REGULATION, CONSTRUCTION )

INDUSTRY LICENSING BOARD, )

)

Petitioner, )

)

vs. ) CASE NO. 88-1775

)

LARRY DIXON, )

)

Respondent. )

)

RECOMMENDED ORDER

Before J. Lawrence Johnston, Hearing Officer, Division of Administrative Hearings.

Belinda H. Miller, Esquire, and G. W. Harrell, Esquire of Tallahassee, for Petitioner.

Stephen F. Baker, Esquire, of Winter Haven, for Respondent.

Final hearing was held in this case in Tampa, Florida, on July 21, 1988.

The issue is whether the Respondent, Larry Dixon, is guilty of several violations of Chapter 489, Florida Statutes, as alleged in the Administrative Complaint filed by the Petitioner, the Department of Professional Regulation: proceeding with a roofing job without a timely permit and without the required inspections (Sections 489.129(1)(d), (m), and (j), 489.119 and 489.105(4)); failing to fully comply with applicable local construction codes (Section 489.129(1)(d), and (m)); improperly supervising the job (Sections 489.129(1)(m) and (j) 489.119 and 489.105(4)); and being responsible for gross negligence and/or incompetence in connection with the job (Sections 489.129(1)(m), and (j), 489.119 and 489.105(4)).

FINDINGS OF FACT /1

1. On April 14, 1987, Vance and Janet McIlwaine entered into a contract with Hill-Pine, Inc., for extensive refurbishing of their home at 3408 Harbor View, Tampa, Florida, including primarily roofing work: namely, installation of a new drip edge, removal of the wood deck, replacement of rotten wood only and replacement of a shingle roof in some areas and a built- up flat roof in other areas. Hill-Pine gave the McIlwaines the lowest proposal for the work at $5,750 plus the cost of replacement wood, if any, at $1.40 per linear foot (plf) for fascia, $2.40 plf for beams and rafters, and $28.00 a sheet for plywood.

   
   

2. The McIlwaines had assumed that Hill-Pine was bidding to do the work itself, but when Hill-Pine got the contract, one of its principals, John Franks, contacted the Respondent, Larry Dixon, and asked him to subcontract the roofing work. Together with his wife and brother-in-law, Dixon, holder of a state license as a registered roofing contractor, operated Dixon Roofing out of Winter

   Haven, where he lives. Dixon previously had subcontracted roofing work from Franks in the Lakeland area.

   
   

3. Dixon agreed to look at the job and let Franks know if he would subcontract the work at Franks' price of $30 per 100 foot square of shingle roof and $40 per 100 foot square of built- up roof. When he got to the job site, Dixon observed that the roof of the McIlwaine house was an amalgam of different type and differently pitched roofs over the house, garage and garage additions that had been put together over the years at different angles and by different methods and would be a difficult job for that reason. Of more concern to Dixon, the visible 18-year old shingle roof was not the only layer of shingles on the shingle roof over the house and garage. The 18-year old roof had been nailed directly on top of the previous roof which, in turn, had been nailed directly to the roof before that. Removal of three shingle roofs that had been nailed on top of one another would increase significantly the work required under the subcontract, and Dixon declined, saying he would take the subcontract only if he was paid more (either $50 or $60 per 100 foot square) for the shingle roof.

   
   

4. Some time later, Franks called Dixon back and agreed to Dixon's price.

   
   

5. Dixon Roofing began work by installing the drip edge on April 20, 1987. Work removing the existing roof(s) proceeded on April 24 through 29 and beyond. As Dixon foresaw, it was very difficult to remove the multi-layered shingle roof. As he put it, they practically had to "beat it off." By far, most of the time spent working on the roof was spent removing the old roofs.

   
   

6. Dixon applied for the required City of Tampa permit for the roofing work on April 29, 1987. There was no evidence that the application was untimely or in violation of Tampa ordinances.

   
   

7. On or about May 22, 1987, the McIlwaines complained to the City of Tampa Building Department that the roof Dixon Roofing was working on was leaking. On May 26, 1987, Terry Scott of the building department investigated and, in the process, performed the dry-in inspection. On June 1 and again on June 5, 1987, Dixon called for a final inspection. The evidence did not prove that Dixon violated the City of Tampa ordinances requiring the contractor to call for a dry-in and a final inspection.

   
   

8. When Scott inspected on May 26, 1987, the roofing job was in violation of the City of Tampa building code (which incorporates the Southern Building Code and Standards For Installing Roof Coverings) in the following pertinent respects:

   
   

   1. Two layers of 15# felt were required over the low sloped front porch

      instead of the one layer found.

   2. The metal drip edge must be installed under the felt or cemented down along

      with the eave.

   3. Insufficient nails were used to secure the shingles.

   4. A pitch pan is required around the plumbing stack.

   5. The wood deck was not fitted closely in some areas.

   6. Bad wood was not replaced everywhere needed.

   7. Drip edge was not overlapped properly.

   8. Flashing at the front porch was not installed properly.

      
      

   9. On the final inspection on June 5, 1987, Scott approved the work on the house and flat roofs, and on the final inspection on June 9, 1987, Scott approved the rest of the roof. But, in fact, the roof still was in violation of the code in several respects:

      
      

      1. The metal drip edge still was not installed properly (less than 1 1/2" overlap)

      2. Not all of the shingles are secured properly--three nails instead of the required four were used in some cases.

      3. The wood deck is still not fitted closely.

      4. Four small areas of bad wood were not replaced.

      5. Flashing at front porch is still not installed properly, there being two

         small places where the flashing did

         not cover the connection between two roofs.

      6. The nails used to secure the shingles are 1" long common roofing nails,

         while Southern Building Code requires the use of corrosion resistant, galvanized or aluminum nails.

         
         

   10. In addition to the code violations, in several respects the roofing job did not comply with the recommendations of the National Roofing Contractors Association (NRCA) or otherwise exhibited deficiencies that were significant if not proven to be substandard:

       
       

       1. The drip edges have been nailed along the eave at approximately 8" off center.

          In this high wind area, the NRCA recommends 4" off center to prevent blow-off.

       2. The starter course of shingles has used a full reversed shingle. The

          NRCA recommends that the starter course of self-sealing shingles consist of shingles from which the tabs have been trimmed. This results in the self-sealing strip being installed in close proximity to the roof edge and, when nailed the recommended 3" to 4" above the eave, provides a good resistance to blow- off in high wind conditions.

       3. The valleys have been flashed using the "closed cut" system. However, the overlap shingles have been trimmed to

          the center of the valley rather than 2" back of center, as recommended by the NRCA, and are not cemented down. This method of installation allows the accumulation of debris along and under the shingle line and can

          contribute to mildew growth and the resultant premature aging of the shingles.

       4. The reused flashing at one of the roof vents is rusted excessively and may result in moisture penetration in the near future. The flashing at the wind driven attic ventilators has

          been installed in a manner which will channel water under the shingles and over the unprotected nails below allowing moisture to penetrate through the deck below. Eventually, this will cause rotting to the deck material.

       5. The flat roof areas have a smooth surfacing with an exposed asphalt top coat. Some of the edges along the

          eave have not been coated leaving the felt exposed to the ultraviolet rays of the sun. This will cause rapid deterioration of the membrane with resultant leakage.

       6. The method of deck replacement is very unprofessional with excessive

          gaps between the plywood sheets and/or planked decks and, in some

          cases, the deck has been left unsupported.

          
          

   11. The evidence was sufficient to prove that Dixon did not adequately supervise the replacement of the roof coverings on the McIlwaine job. Most of the time Dixon spent on the job was in taking off the old roofs. The new roofs went on in just a couple of days. Several instances of substandard work were not observed and corrected by Dixon. The difficulties associated with the McIlwaine roofing job did not excuse Dixon's responsibility to supervise; to the contrary, the difficulties Dixon knew his workers would encounter was reason for him to supervise more closely. Nor did Dixon's subcontract excuse Dixon, who was the roofing contractor on the job and pulled the permit for the roofing work, from his responsibility to see that the job was done according to code.

       2/

       
       

   12. The evidence also was sufficient to prove that Dixon willfully and deliberately violated the Tampa building code by installing the drip edge with less than 1 1/2 inch overlap. Dixon testified that he does not agree with that part of the building code and does not believe drip edge can be installed satisfactorily in the manner specified in the code.

       
       

   13. However, the evidence was not sufficient to prove that Dixon was incompetent (although there was evidence that some of his workers might have been), that Dixon was guilty of gross negligence (although the evidence did prove simple negligence) or that Dixon otherwise willfully or deliberately disregarded the Tampa building code.

       
       

       CONCLUSIONS OF LAW

       
       

   14. Section 489.129(1), Florida Statutes (1987), provides in pertinent part:

       The board may 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, or if 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.

       (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, incompetency, or misconduct in the practice of contracting.

       
       

   15. As found, the evidence proved that the Respondent, Larry Dixon, violated Section 489.129(1)(d) by willfully and deliberately installing drip edge in violation of the Tampa building code but did not prove that Dixon otherwise violated Section 489.129(1)(d) or (m), Florida Statutes (1987).

       
       

   16. As for Section 489.129(1)(j), Florida Statutes (1987), Section 489.119(1), Florida Statutes (1987), provides that a licensee such as Dixon, who qualified Dixon Roofing, must be:

legally qualified to act for the business organization in all matters connected with its contracting business and [have] authority to supervise construction undertaken by such business organization.

Section 489.105(4), Florida Statutes (1987), provides: "Qualifying agent" means a person

who possesses the requisite skill,

knowledge, and experience, and has the responsibility, to supervise, direct, manage, and control the contracting activities of the business entity with which he is connected; who has the responsibility to supervise, direct, manage and control construction activities on a job which he has obtained the building permit; and whose technical and personal qualifications have been determined by investigation

and examination as provided in this act, as attested by the department.

The law is clear that Sections 489.119(1) and 489.105(4) impose on qualifying agents for a contractor the statutory duty to supervise the contractor's work. Complete failure to supervise the contractor's work is, therefore, a violation. See Hunt v. Dept. of Prof. Reg., 444 So.2d 997 (Fla. 1st DCA 1983); Alles v.

Dept. of Prof. Reg., 423 So.2d 624 (Fla. 5th DCA 1982). But it is held that Sections 489.119(1) and 489105(4) do not form the basis of a separate violation for simple negligence in supervising a construction job, as found in this case, under Section 489.129(1)(j), Florida Statutes (1987). Inadequate supervision will subject a qualifying agent to discipline only if it is incompetent or grossly negligent under Section 489129(1)(m).

RECOMMENDATION

Based on the foregoing Findings Of Fact and Conclusions Of Law, it is recommended that the Construction Industry Licensing Board enter a final order finding the Respondent, Larry Dixon, guilty of violating Section 489.129(1)(d), Florida Statutes (1987), by willfully and deliberately violating the locally applicable codes for installation of drip edge and, because of the violation and inadequate supervision, imposing an administrative fine in the amount of $500.

RECOMMENDED this 11th day of August, 1988, in Tallahassee, Leon County, Florida.

J. LAWRENCE JOHNSTON Hearing Officer

Division of Administrative Hearings The Oakland Building

2009 Apalachee Parkway

Tallahassee, Florida 32399-1050

(904) 488-9765

Filed with the Clerk of the Division of Administrative Hearings this 11th day of August, 1988.

ENDNOTES

1/ Explicit rulings on the parties' proposed findings of fact may be found in the attached Appendix To Recommended Order, Case No. 88-1775.

2/ The one exception to this was the code violation that the preexisting deck, as opposed to replacement decking Dixon Roofing installed, did not fit closely enough. Hill-Pine's contract with the McIlwaines was to replace rotten wood only. Hill-Pine was not hired, and did not contract, to rebuild the roof decking and supporting beams and rafters. Neither did Dixon.

APPENDIX TO RECOMMENDED ORDER CASE NO. 88-1775

To comply with Section 120.59(2), Florida Statutes (1987) , the following explicit rulings are made on the Petitioner's proposed findings of fact (the Respondent not having filed any)

1. Accepted and incorporated.

2.-3. Rejected as contrary to facts found. No subcontract was entered into until Franks accepted Dixon's counteroffer on the price of the shingle roof portion of the job.

1. Accepted and incorporated.

2. Accepted but unnecessary.

3. Rejected as contrary to facts found. The drip edge was installed on April 20, 1987.

4. First sentence, accepted and incorporated; second sentence, rejected as not proven.

8.-9. Accepted and incorporated.

1. First sentence, accepted and incorporated; rest, accepted but subordinate to facts found.

2. First sentence, accepted and incorporated; rest, rejected as not proven.

3. Accepted but unnecessary.

13.-17. Accepted but subordinate to facts found and unnecessary.

18. Rejected in part in that there was no evidence of rotten trusses and the evidence of rotten wood in the decking was limited to four small areas; otherwise, accepted and incorporated.

19.-21. Accepted and incorporated.

COPIES FURNISHED:

Belinda H. Miller, Esquire

G. W. Harrell, Esquire Department of Professional

Regulation

130 North Monroe Street Tallahassee, Florida 32399-0750

Stephen F. Baker, Esquire

565 Avenue K, Southeast Winter Haven, Florida 33880

Fred Seely, Executive Director Construction Industry Licensing Board Post Office Box 2

Jacksonville, Florida 32201

William O'Neil, General Counsel Department of Professional

Regulation

130 North Monroe Street Tallahassee, Florida 32399-0750

Docket for Case No: 88-001775

Orders for Case No: 88-001775