STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF PROFESSIONAL ) REGULATION, CONSTRUCTION INDUSTRY ) LICENSING BOARD, )

)

Petitioner, )

)

vs. ) CASE NO. 89-0747

)

NORMAN LEVINSKI, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, James E. Bradwell, held a public hearing in this case on December 8, 1989, in Clearwater, Florida.

APPEARANCES

For Petitioner: J. Craig Myrick, Esquire and

Elizabeth Alsobrook, Esquire Department of Professional Regulation

1940 North Monroe, Suite 60

Tallahassee, Florida 32399-0792

For Respondent: Norman Levinski, Pro se

191 Calumet Street, Suite A Clearwater, Florida 34625

STATEMENT OF THE ISSUE

Whether or not Respondent engaged in gross negligence, incompetence, misconduct, and/or deceit in connection with the installation of a roof on a customer's home, either personally or by his failure to properly supervise the construction project and, if so, what, if any, administrative penalty should be imposed.

PRELIMINARY STATEMENT

By its Administrative Complaint filed November 28, 1988, Petitioner seeks to impose disciplinary sanctions against Respondent. Thereafter, Respondent timely requested a formal hearing, and on February 10, 1989, the matter was referred to the Division of Administrative Hearings to conduct a formal hearing. The matter was initially scheduled for hearing on April 5, 1989, in Clearwater, Florida, but was continued based on Respondent's motion. The matter was thereafter rescheduled for hearing on May 24, 1989, but was again cancelled based on a pending settlement. On June 23, 1989, the matter was placed in abeyance to allow the parties an opportunity to explore settlement options. On

August 29, 1989, Petitioner filed a status report advising that settlement discussions had not been fruitful and requested that the matter be reset for hearing. The matter was reassigned from Hearing Officer Daniel M. Kilbride, to the undersigned Hearing Officer, on September 11, 1989. On October 20, 1989, the matter was set for hearing and held as scheduled on December 8, 1989.

Petitioner's exhibits 1-5 were introduced and received in evidence at the hearing. Respondent's exhibits 1-4 were introduced and received in evidence. Petitioner presented the testimony of Elizabeth Tittle, Jack Hurlston and W.L. Albritton. Respondent, Norman P. Levinski, testified on his behalf and recalled Jack Hurlston, as a witness.

The parties were afforded leave through January 8, 1990, to file proposed recommended orders. Proposed recommended orders were filed and were considered in preparation of this Recommended Order. Proposed findings which are not incorporated herein are the subject of specific rulings in an Appendix.

FINDINGS OF FACT

1. Petitioner, Construction Industry Licensing Board, is the state agency charged with the responsibility to regulate construction activities in Florida to include prosecuting administrative complaints filed pursuant to Chapters 489,

   455 and 120, Florida Statutes, and the rules and regulations promulgated pursuant thereto.

   
   

2. During times material hereto, Respondent, Norman Levinski, was licensed as a registered roofing contractor in the State of Florida, having been issued license number RC 0047656.

   
   

3. At all times material hereto, Respondent was the licensed qualifying agent for All Bay Enterprises, Inc.

   
   

4. On September 17, 1987, Respondent through the entity All Bay Enterprises, contracted with Opie and Elizabeth Tittle to remove and replace a built-up roofing system and shingle roof on the Tittle's residence located at 810 Audubon Drive, Clearwater, Florida. Respondent was paid the total contract price of $3280.00.

   
   

5. Respondent completed the above roofing work on September 22, 1987. During the course of the work and after its completion, the Tittles continually expressed concern that the job was being done improperly and that they were not satisfied. Respondent made one attempt to correct the problems without success. Respondent dispatched a crew to the Tittle's home to try to remediate some problems on the roof; however, their efforts were unsatisfactory.

   
   

6. Jack Hurlston, an expert in roofing, was retained by Petitioner to render an opinion on March 22, 1989. Hurlston visited the Tittle home and found numerous deficiencies in the roof. Specifically, Respondent failed to erect the Tittles' roof in conformity with the minimum standards of the Southern Building Code and usual industry standards in that there was insufficient lap at the joints in the eave drip, the starter course was nailed too high above the eave, shingles did not lay flat due to the use of improper asphalt, underlying felt was wrinkled and "telegraphed" through shingles, shingles were improperly nailed and three nails were used in each shingle as opposed to the customary four, as required by the manufacturer. No base flashing was used where shingles abutted, no plastic roof cement was placed around the electric riser to form a seal, the valley metal was cut too short and nailed too far from the center, the roof edges on the gable ends were nailed too far from the edge, exposed nails and

   cutout areas were observed. In the built-up roof, the aluminum coating was applied too soon after the base roof was installed and was therefore insufficient to provide either weather protection or heat reflection.

   
   

7. W.L. Albritton, who was received as an expert in roofing, was retained by the Tittles to inspect the roofing job completed by Respondent. Albritton's inspection revealed the following deficiencies:

   
   

   1. Starter course shingles were uneven, in that they were nailed from 1 3/4" to 3" inches to the edge of the eave drip. Additionally, some nails in the starter course were found at the cutout (water course) of the first weather course of shingles at the eave.

      
      

   2. Discoloration was noted along the top edge of the fascia, but below the bottom of the drip edge, suggesting that a 1" x 2" wood drip strip was removed by Respondent and was not replaced.

      
      

   3. The metal drip edges were nailed at approximately 18" on center and 8" to 10" nail spacing is usual and customary in the roofing industry.

      
      

   4. The horizontal alignment of the shingles was uneven.

   
   

8. The shingle roof was not installed according to the manufacturer's specifications and therefore did not conform with the Southern Standard Building Code. The specific deviations from the manufacturer's specifications are as follows:

   
   

   The manufacturer requires that two layers of number 15 asphalt saturated felt be installed in shingle fashion on roofs below 4:12, such as the Tittle's roof.

   
   

   Respondent here installed one layer of number 30 felt on the Tittle's roof. Next, the manufacturer requires the drip edge metal to be installed under the felt at the eaves of the roof or if installed on top of the felt at the eaves, that roof cement and felt stripping be applied over the roof end of the drip edge metal. Respondent installed the drip edge on the top of the felt at the eaves and did not strip, the roof over the roof end. The manufacturer recommends nail spacing of 8" to 10" for anchoring drip edge metal, whereas Respondent anchored the drip edge metal at 18" on center. The Standard Building Code requires an end overlap of 1 1/2" on metal edge flashing, whereas Respondent overlapped the end joist 1/2" at most end joints. The manufacturer specifies that close cut valleys should be nailed no closer than 6" to the center life of the valley and that the cut side shall be trimmed a minimum of 2" above valley center lines, whereas Respondent nailed to within 4" of the valley center line and the cut shingle edge was made at the valley's center line. The manufacturer requires four nails in each shingle, whereas Respondent nailed some shingles with only three nails and placed nails too close to water cutouts and placed some nails as high as seven inches above the bottom edge of the shingle. Next, the manufacturer requires that sufficient shingles be installed at pipe penetrations so that it will be necessary to cut a hole in one shingle to fit over or around the pipe before installing the pipe flashing, whereas Respondent failed to install sufficient shingles before installing the pipe flashings, and the flashings, as installed, are more susceptible to water leakage.

9. Respondent slit the face of the metal drip edge and failed to provide backup protection for the fascia creating a situation that will promote rotting of the fascia.

   
   

10. Respondent installed the shingles over wrinkled felt, underlayment and the wrinkles in the underlayment are "broadcasting" through the shingles, which creates a rough appearance to the entire roof and cannot be corrected without complete removal of the roof.

    
    

11. The ply sheets on the flat roof specified by Respondent was to be of a 3-ply application, whereas it measures between 11" and 12" between edges of the sheets. Respondent therefore did not apply a full three plies on the flat roof.

    
    

12. The Standard Building Code requires 1 1/2" overlap on edge joints of drip metal, whereas Respondent installed the drip edge metal with overlap and joints ranging from 3/4" to 3 1/4". Respondent failed to provide sufficient felt stripping over the roof flange of the metal drip edge at the rake edge of the flat roof. Respondent did not install the ply sheets using full moppings of asphalt and pi' is occurring at the edges of the ply sheets.

    
    

13. Respondent installed shingles too low onto the flat roof, did not use a starter course of shingles, the felt underlayment is exposed between the cutouts and solar radiation is likely to degrade the felt underlayment. Additionally, the roof will be prone to leakage at such locations.

    
    

14. Respondent failed to install flashing where required, used old flashing when new flashing was promised and failed to close openings that would allow wind-driven water to leak into the interior of the Tittles residence and/or the roof.

    
    

    CONCLUSIONS OF LAW

    
    

15. The Division of Administrative Hearings has jurisdiction over the subject matter of and the parties to this action pursuant to Section 120.57(1), Florida Statutes.

    
    

16. The parties were duly noticed pursuant to Chapter 120, Florida Statutes.

    
    

17. The authority of the Petitioner is derived from Chapter 489, Florida Statutes.

    
    

18. Respondent, a licensed registered roofing contractor in the State of Florida, is subject to the disciplinary guidelines of Chapter 489, Florida Statutes.

    
    

19. Section 489.129(1), Florida Statutes, provides in part, that:

    
    

    The board may revoke, suspend or deny the issuance or the renewal of the certificate or registration of a contractor ... if the contractor is found guilty of the following acts:

    (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 gross negligence, incompetence, or misconduct in the practice of contracting.

    
    

20. Clear and convincing evidence was offered to establish that Respondent violated Subsection 489.129(1)(j) and (m), Florida Statutes, based on the above described negligent and incompetent manner he performed the roofing work; for Opie and Elizabeth Tittle, his customers. Additionally, Respondent failed to supervise the attempts to repair the roof with adequate inspection and attendance on his part.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that:

1. Petitioner, Department of Professional Regulation, Construction Industry Licensing Board, enter a Final Order imposing an administrative fine against Respondent in the amount of $500.00 and suspending his license for a period of six (6) months. 1/

DONE and ENTERED this 15th day of February, 1990, in Tallahassee, Leon County, Florida.

JAMES E. BRADWELL

Hearing Officer

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, FL 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 15th day of February, 1990.

ENDNOTES

1/ This recommendation is in keeping with the disciplinary sanctions provided for in Rule 21E-17.001, Florida Administrative Code, since this is Respondent's first violation and there are no other aggravating circumstances other than a customer injury. Finally, there appears to be no authority for the undersigned to recommend restitution to the injured customer.

COPIES FURNISHED:

J. Craig Myrick, Esquire and Elizabeth Alsobrook, Esquire Department of Professional Regulation 1940 North Monroe, Suite 60 Tallahassee, Florida 32399-0792

Norman Levinski

1916 Calumet Street, Suite A Clearwater, Florida 34625

Fred Seely, Executive Director Construction Industry Licensing Board

111 East Coastline Drive, Room 504 Jacksonville, Florida 32202

Kenneth D. Easley, Esquire General Counsel

Department of Professional Regulation 1940 North Monroe, Suite 60

Tallahassee, Florida 32399-0792

Docket for Case No: 89-000747

Orders for Case No: 89-000747