STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

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

)

Petitioner, )

vs. ) CASE NO. 89-4840

)

WILLARD ALBRITTON, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, Veronica E. Donnelly, held a formal hearing in the above-styled case on January 9, 1990, in Fort Myers, Florida.

APPEARANCES

For Petitioner: Andrea Bateman, Esquire

Department of Professional Regulation

Northwood Centre, Suite 60 1940 North Monroe Street

Tallahassee, Florida 32399-0792

For Respondent: Thomas M. Brondstetter, Esquire

1617 Hendry Street Post Office Box 2367

Fort Myers, Florida 33902 STATEMENT OF THE ISSUES

Whether disciplinary action should be taken against the Respondent's certified roofing contractor's license based upon the alleged violations of Sections 489.129(1)(m), (j) and/or 489.119 and 489.105(4), Florida Statutes, as contained in the Administrative Complaint.

PRELIMINARY STATEMENT

The Department of Professional Regulation (the Department) filed an Administrative Complaint before the Construction Industry Licensing Board (the Board), alleging that the Respondent Willard Albritton (Albritton), as the qualifying agent for Albritton Roofing, had violated state law in his capacity as a certified roofing contractor. Essentially, the Respondent Albritton has been charged with either failing to properly supervise a roof inspection or, in the alternative, failing to properly install a tile roof on a single-family residence. The Department seeks to have disciplinary sanctions imposed upon the Respondent Albritton's certification as a roofing contractor for the alleged misconduct.

In an Election of Rights Form signed April 21, 1989, Respondent Albritton disputed the allegations of fact contained in the Administrative Complaint and requested a formal hearing.

During the hearing, the Department called five witnesses and introduced fifteen exhibits into evidence. As an objection was made by the Respondent regarding the incompleteness of the Petitioner's Exhibit 14, the Department was granted an additional twenty days in which to file a complete copy of the manufacturer's report on roof covering to the Southern Building Code Congress International. The exhibit was timely received, and was admitted into evidence as Petitioner's Exhibit 14A. The Respondent testified in his own behalf and presented four witnesses. Four exhibits were offered by Respondent, and were admitted into evidence.

A transcript of the proceeding was filed on January 25, 1990. Due to an agreement entered into between the parties, the Respondent was granted the opportunity to continue the cross-examination of the Department's expert witness posthearing. The Respondent was given until March 6, 1990, to complete the deposition. The deposition was filed with the Hearing Officer on March 16, 1990. Both parties filed proposed recommended orders. Rulings on the proposed findings of fact are in the Appendix to the Recommended Order.

FINDINGS OF FACT

1. At all times material to these proceedings, Respondent Albritton was licensed as a certified roofing contractor and held license number CC C015182. Mr. Albritton was the qualifying agent for Albritton Roofing, Inc.

   
   

2. On or about May 30, 1985, Albritton Roofing, Inc. submitted a proposal to Inter-Urban Developments, Inc., to install a tile roof on the single-family residence which was being built for Ernani and Giorgina Grilli in Cape Coral, Florida. Inter-Urban Developments, Inc., was the general contractor for the construction of the custom home being built for Mr. and Mrs. Grilli.

   
   

3. The proposal reflected that Albritton Roofing, Inc. was willing to install a roof on the Grilli residence. The roof was to consist of the following: a thirty pound base felt, a ninety pound felt which was to be hot mopped, and a Monier tile roof covering. The tile was to be placed on the roof by using the mud application system. The tiles which had to be cut would be sawed and mitered. The proposed cost of the roof was to be $8,370.00. When the general contractor decided that the tiles could be broken instead of cut, the price was reduced to $7,588.00 The modified proposal was accepted by the general contractor and Albritton Roofing, Inc. It was agreed that the work would be completed in a workmanlike manner, according to the standard practices.

   
   

4. In the City of Cape Coral at the time the roof was installed on the Grilli residence in 1985, the standard practice of local roofers was to apply tiles over a thirty pound base felt and a hot mopped ninety pound felt roof with a mud system. The tiles were decorative in nature and were used to keep the sun off the true roof, the hot mopped, ninety pound felt. Fewer tiles were used per square under this method of application and a head lap of one and one-half inches was used during the tile application. Although Cape Coral was without a building code, the head lap requirement was set forth in the county building code. In addition, pursuant to local practices, tiles were marked and broken

   with a trowel when it was necessary to use a smaller tile. Instead of sawing and mitering the tiles together for a finished look, the mud was used over the top of the tiles in the areas where they were to be joined.

   
   

5. Upon completion of the installation, the roof was accepted by the general contractor and the owners of the property. A three-year guarantee of all materials and workmanship furnished by Albritton Roofing, Inc. was issued on October 28, 1985. The guarantee expressly excepted acts of God or accidents from its provisions.

   
   

6. On March 18, 1987, the owners of the residence had a pre-installation inspection of the roof made by the installers of a solar pool heating system. During the inspection, it was discovered that many of the roof tiles were loose. The owners were immediately informed of the situation and were advised that the solar heating company would not be responsible for the condition of the roof.

   
   

7. After the solar pool heating system was installed on the roof, the owners notified the Respondent Albritton that the roof tiles were loose, and that they wanted Albritton Roofing, Inc. to honor its guarantee.

   
   

8. When one of the Respondent's employees went to view the roof, he discovered that solar panels had been installed on the roof. When the employee saw that changes had been made to the roof, he leapt to the conclusion that the loose and broken tiles on the roof were caused by the solar heater installers or other people walking on the roof tiles. However, in spite of the belief that the tile damage was not caused by faulty materials or improper workmanship, Albritton Roofing, Inc. replaced a whole pallet of the Monier tiles on the Grilli roof, free of charge on April 28, 1987.

   
   

9. After the tiles were replaced by Albritton Roofing, Inc., the owners continued to experience problems with loose and sliding tiles. In July 1987, Mr. and Mrs. Grilli made a written demand upon Albritton Roofing, Inc. to honor the guarantee and to properly secure the roof tiles.

   
   

10. In response to the written demand, Albritton Roofing, Inc. stated that the tiles had been cemented down as they were supposed to have been, and that the problem of loose tiles was caused by the solar panel installers, who broke the tiles loose from the cement when they walked on the roof. Albritton Roofing, Inc. took the legal position that the repairs needed were not caused by faulty materials or workmanship. Thus, the guarantee did not apply in this situation.

    
    

11. In August 1987, the roofing inspector for Cape Coral completed a roof inspection at the Grilli residence. It was the inspector's opinion that every section of the roof had loose tile. From his visual inspection, the inspector was able to observe that tile had begun to slide down past the two inch head lap on various areas of the roof. Many of the hip and ridge tiles were loose.

    
    

12. In response to the inspector's written report, which opined that the mud might not have been placed at the proper locations under the tiles or that there might have been a problem with the mud mixture, an inspection was completed of the roof by C.A. Wunder, Jr. of C.A. Wunder Engineering, Inc. on behalf of Albritton Roofing, Inc. In September 1987, Mr. Wunder completed his inspection by climbing a ladder and checking tiles within arms's reach in three areas. The inspection revealed that tiles were loose in large areas of the roof. An examination of some of the loose tiles revealed that all of these

    tiles had mud under them and that the bond between the mud and tile had been broken. It was suggested that people walking on the roof or strong winds provided uplift which broke the bond between the tiles and the mud.

    
    

13. On December 7, 1987, a roof inspection was completed by D.H. Gracey on behalf of Mr. and Mrs. Grilli. Mr. Gracey is a roofing consultant who testifies in litigation matters as an expert witness. Dr. Gracey observed that sixty percent of the tiles were loose and had no bond against slippage or wind uplift.

    
    

14. Another inspection of the roof was conducted by Jack Hurlston, a certified roofing contractor hired by the Department on August 2, 1989. During the inspection, approximately seventy-five percent of the tiles were loose due to lack of adhesion. In some areas, one bed of mud was used to hold two tiles. Insufficient mud was used in setting tile caps on hips. Hip caps had been stretched leaving insufficient head lap.

    
    

15. The proper way to apply the mud on roof tiles in Cape Coral in 1985, was to place the mud about halfway down each tile about four or five inches from the bottom of the tile. Sufficient mud beds had to be placed underneath the tiles as well in order to attach them to the roof.

    
    

16. The Respondent Albritton was on site while the tile was being installed on the Grilli residence in 1985.

    
    

17. The employee of Albritton Roofing, Inc. who installed the tile on the Grilli residence failed to consistently follow the Respondent's instructions that mud be placed on each tile in a certain spot before the tile was bonded to the roof.

    
    

18. The installer's failure to follow instructions for the application of the mud was misconduct which contributed to the roof's decline. In addition, the use of one mud bed to hold two tiles in some areas was a defect in workmanship under the applicable local standards during the time the roof was applied.

    
    

19. The owners of the residence have been harmed by the misconduct in that they have loose tiles which continue to slide down the roof and occasionally fall into the yard. The tiles will eventually fail to protect the ninety pound felt from sun damage. The tile roof was applied for this purpose in addition to its cosmetic benefit.

    
    

20. No notice of mitigation or aggravation was submitted to the Hearing Officer at the formal hearing.

    
    

    CONCLUSIONS OF LAW

    
    

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

    
    

22. A proceeding to discipline a license is penal in nature. Bach v. Florida Board of Dentistry, 378 So.2d 34 (Fla. 1st DCA 1980). In such contests, the Petitioner has the burden of proof and must establish by clear and convincing evidence that the Respondent committed the violations set forth in the Administrative Complaint. Ferris v. Turlington, 510 So.2d 292 (Fla. 1987).

23. The Respondent Albritton has been charged with having violated Section 489.129(1)(m), (j), Florida Statutes, and/or Sections 489.119 and 489.105(4), Florida Statutes. Section 489.129, Florida Statutes (1985), provides as follows, in pertinent part:

    
    

    1. The board may revoke, suspend, or deny

       the issuance 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:

       
       

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

       
       

24. Section 489.119, Florida Statutes (1985), sets forth the procedures for becoming a qualifying agent on behalf of a corporation or other legal entity. Section 489.105(4), Florida Statutes (1985), provides that the qualifying agent has the responsibility to "... supervise, direct, manage, and control construction activities on a job for which he has obtained a building permit..." Although it was not demonstrated at hearing that Respondent Albritton had obtained the permit for the roof installation, there is no dispute regarding his status as a qualifying agent for the corporation. The Respondent's testimony that he supervised the roof installation on the Grilli residence makes him responsible for the quality of workmanship on the site. The allegations in the Administrative Complaint that the Respondent personally failed to properly install the roof should be dismissed as the evidence presented at hearing demonstrated that Respondent Albritton was acting in his capacity as a qualifying agent throughout the roof installation.

    
    

25. The Administrative Complaint alleges that the tile roof was not installed according to the manufacturer's specifications. The evidence presented revealed that Respondent had the corporation's employees install the roof according to the standard practices used in Cape Coral during the time the project was completed. As this case does not involve a product's warranty claim against the manufacturer, the fact that the manufacturer's specifications were not followed is given less weight than the standard practices and the recommendations of the local distribution company for roofing products within the Cape Coral area. Accordingly, the Respondent is not guilty of any violation of Section 489.129(1), Florida Statutes, as a result of his decision to install the roof according to standard practices used in the Cape Coral area.

    
    

26. However, during the hearing it was determined that the standard practices required the installers to place the mud on each tile in a certain spot before the tile was bonded to the roof. The inspections of the local roof inspector, the roof expert hired by Mr. and Mrs. Grilli, the expert in roofing construction hired by the Department, and the roof expert hired by the Respondent, were all able to observe that a large number of tiles were loose on the Grilli residence. Although the local roof inspector did not observe the

    underside of the loose tiles, it was his theory that mud might not be set at the proper location under the tiles. The inspection completed by the Department's expert included direct observations of the underside of a number of tiles and the mud beds which were no longer bonded to the tiles. These observations revealed that in some areas, one bed of mud was used to hold two tiles. This type of application was contrary to local standards and directly violated the application method explained to the Hearing Officer by the Respondent.

    
    

27. The only reasonable interpretation and reconciliation of the evidence is that the Respondent did not personally observe the shortcuts taken by the installers in some areas of the roof during the mud application. In spite of his lack of personal knowledge of this misconduct, which was not readily observable during Respondent's inspection of the work, Respondent Albritton had the responsibility to control construction activities on the job. As a result, the Respondent is guilty of having failed to adequately control construction activities during the roof installation which resulted in misconduct in the practice of contracting in violation of Section 489.129(1)(m), Florida Statutes (1985).

    
    

28. Because there was no showing of a violation of Section 489.129(1)(j), Florida Statutes (1985), all allegations concerning this purported violation should be dismissed.

    
    

29. Section 21E-17.001, Florida Administrative Code, provides in pertinent part:

The following guidelines shall be used in disciplinary cases, absent aggravating or mitigating circumstances and subject to other provisions of this Chapter.

(b) Causing monetary or other harm to licensee's customer, or physical harm to any person. First violation $500 to $1,500 fine...

RECOMMENDATION

Based upon the foregoing,, it is RECOMMENDED:

1. That the Respondent, as the qualifying agent, be found guilty of having violated Section 489.129(1)(m), Florida Statutes, by failing to adequately control construction activities which resulted in misconduct by the tile installers who failed to properly apply the mud beneath the tiles in some areas of the roof. As a result, there are loose tiles on the roof which were caused by the faulty workmanship.

   
   

2. That the Respondent be found not guilty of all of the other alleged violations in the Administrative Complaint.

   
   

3. That the Respondent be required to pay a $500.00 fine as set forth in Section 21E-17.001(19)(b), Florida Administrative Code. The reason the lower end of the fine scale is recommended by the Hearing Officer is that the misconduct by the installers was not readily observable by the Respondent during his inspection of the tile roof cover. In addition, the Respondent consistently acted in good faith in his attempts to negotiate with the owners of the roof.

DONE and ENTERED this 29th day of March, 1990, in Tallahassee, Leon County, Florida.

VERONICA E. DONNELLY

Hearing Officer

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 29th day of March, 1990.

APPENDIX TO RECOMMENDED ORDER

Petitioners's proposed findings of fact are addressed as follows:

1. Accepted.

2. Accepted. See HO #1.

3. Accepted. See HO #1 - #3.

4. Accepted. See HO #6.

5. Rejected. Inconsistent with other, accepted testimony of other witnesses. See HO #6. The relevant point, that loose roof tiles were discovered in March 1987, is accepted.

6. Accept that Albritton issued a three-year guarantee. See HO #5. Accept that tiles were replaced on the roof after March 1987. See HO #8. Accept that the owners continued to experience problems with loose and sliding tiles, and made a written demand to Albritton to honor the warranty. See HO #9. Reject the proposed finding that replacement tiles were a different color. Not proved by competent substantial evidence.

7. Rejected. Improper lay opinion. Contrary to fact. See HO #4.

8. Accept the first two sentences. See HO #11 and #12. Reject third sentence. Irrelevant. Reject fourth sentence. Lack of proper factual foundation on which to base his conclusion.

9. Accept that D.H. Gracey examined the roof. See HO #13. Reject his opinion that the tiles were laid over a sub-roof. Contrary to fact. See HO #4.

10. Reject the opinion of D.H. Gracey. Mr. Gracey approached the problems regarding the roof as if it were a product's warranty case. His opinions did not aid the trier of fact in the determinations which had to be made in these proceedings. His opinions that the tiles were not installed as per the manufacturer's recommendations were irrelevant.

11. Reject the first sentence. Irrelevant. Accept the second sentence. See HO #13.

12. Rejected. Irrelevant.

13. Reject that sixty percent of the tiles were loose. The rest of the paragraph is accepted. See HO #14.

14. Rejected. Irrelevant.

15. Rejected. Not probative of anything. Irrelevant.

16. Rejected. Speculative.

17. Rejected. Irrelevant to the issues in this proceeding.

18. Accepted. See HO #19.

19. Rejected. Irrelevant.

20. Rejected. Contrary to proof established at hearing.

Respondent's proposed findings of fact are addressed as follows:

1. Accepted. See HO #3.

2. Accepted. See HO #4.

3. Accepted. See HO #4.

4. Accepted.

5. Accepted. See HO #3 and #4.

6. Rejected. Contrary to fact. See HO #16 - #18.

Copies furnished:

Andrea Bateman, Esquire Department of Professional

Regulation

1940 North Monroe, Suite 60

Tallahassee, Florida 32399-0792

Thomas M. Brondstetter, Esquire 1617 Hendry Street

Post Office Box 2397

Fort Myers, Florida 33902

Kenneth E. Easley, Esquire General Counsel

Department of Professional Regulation

1940 North Monroe, Suite 60

Tallahassee, Florida 32399-0792

Fred Seely, Executive Director Construction Industry Licensing

Board

111 East Coastline Drive, Room 504 Post Office Box 2

Jacksonville, Florida 32202

Docket for Case No: 89-004840

Orders for Case No: 89-004840