STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

FLORIDA CONSTRUCTION INDUSTRY ) LICENSING BOARD, )

)

Petitioner, )

)

vs. ) CASE NO. 78-1780

)

GARY A. SMITH, )

)

Respondent. )

)

RECOMMENDED ORDER

This case was heard pursuant to notice on December 7, 1978, in Jacksonville, Florida by Stephen F. Dean, assigned Hearing Officer of the Division of Administrative Hearings.

This case was presented on an Administrative Complaint filed by the Florida Construction Industry Licensing Board against Gary A. Smith d/b/a Sirmons Roofing Company.

The Florida Construction Industry Licensing Board presented evidence to show that Smith had commenced construction without the required local building permit, had done work that was not in accord with local building codes and his contract with the owner, and that the local board had requested the local building official to suspend Smith's privilege to obtain building permits.

Smith testified in his own behalf and admitted that he had not always obtained the required building permits; however, but denied that he had not followed the local code in the application of roofing. Smith also denied that he had violated his contract for re-roofing a residence. Count 2 regarding discipline by a municipality, city or county is recommended to be dismissed because the process by which Smith's license was suspended was of such a nature that there was no record for the Florida Construction Industry Licensing Board to review.

The remaining issues presented were:

Whether the Respondent had willfully and deliberately violated the local building codes by failing to obtain building permits, and

Whether the Respondent had failed to follow local building codes and his contract in re-roofing a residential building.

FINDINGS OF FACT

1. Gary Smith d/b/a Sirmons Roofing Company is a roofing contractor registered with the Florida Construction Industry Licensing Board. Smith does not hold any license issued by local construction licensing boards which does not license roofing contractors.

2. Smith admitted that he had commenced construction projects without acquiring the appropriate building permits from the local building officials.

   
   

3. Calvin Smith identified a contract, Exhibit 2, which he had entered into with Gary Smith d/b/a Sirmons Roofing regarding the repair of the roof of his house. This contract called for the replacement of bad wood, which was understood by the parties to refer to rotten wood planking and rafters. Calvin Smith stated that after construction commenced and the old roof had been removed, his house had suffered rain damage although Gary Smith had advised him that the roof had been dried in. Gary Smith explained that he had in fact laid the requisite felt paper on the roof but that a severe wind and rain storm and occurred immediately following which had destroyed the felt paper. Smith stated that a crew was on the job during the storm at all times trying to keep the felt nailed down and maintain the water-tight integrity of the roof. There were no delays following the removal of the roof in replacing the felt and diligently proceeding with the re-roofing.

   
   

4. Several days after the storm the roof had been finished, the plywood ceiling of the family room of Calvin Smith's house was partially removed to permit the insulation to be replaced. At this time Calvin Smith discovered rotten wood which Smith felt should have been removed and replaced by Gary Smith pursuant to their contract. Gary Smith stated that he had found one rotten rafter, but that he had advised Calvin Smith of the fact that it was there and that Calvin Smith realized that he was not replacing it. Gary Smith stated that he had removed and replaced all the rotten wood in the roof and that the rotten wood discovered by Calvin Smith was on that portion of the family room roof which was under the eaves of the pre-existing roof of the house where it could only be seen upon removal of the family room ceiling. Gary Smith further testified that subsequent to finding the rotten wood, Calvin Smith had not permitted him to correct the job and that he had not personally seen the rotten wood, pictures of which Calvin Smith had identified.

   
   

5. Calvin Smith identified photographs of the interior and exterior of the roof as repaired by Gary Smith. These photographs were received as Exhibits 3 and 8. Exhibits 7 and 8 were photographs of the exterior of the roof. Exhibit

   8 is a photograph of a shingle which was not properly installed. Gary Smith admitted that the shingle was not properly installed but stated that it would have been corrected prior to finishing the job. Exhibit 7 is a photograph showing a course of shingles which does not have the proper overlap. Gary Smith explained that this short run of shingles was necessary to even up or balance the runs on both sides of a hip in the roof because the distance from the eave to the top or peak of the hip was not the same on both sides. Gary Smith also pointed out that in both photographs the shingles are laid so that the bottom of the upper course of shingles comes to or overlaps the lower course of shingles to the top of the tab, causing good contact between the shingles and the adhesive strips. Contrary to the assertion of Calvin Smith that the shingles had been laid in such a manner that the adhesive strips did not touch. Calvin Smith had identified Exhibit 6 as photograph of roof flashing on the family room roof which he asserted was improperly installed. Gary Smith stated that the flashing in Exhibit 6 was installed in accordance with the manufacturer's recommendation and that the roof on the family room had the requisite number of layers of felt and tar as required by the building code. Gary Smith stated that he could not identify the purported location of the underside of the roof depicted in Exhibit 5 and identified by Calvin Smith as being in the middle of the family room. Gary Smith stated that he could not identify the purported location of the underside of roof depicted in Exhibit 5 and identified by Calvin Smith as being in the middle of the family room. Gary Smith stated that he had

   shown the rotten beam indicated in Exhibit 4 to Calvin Smith and that Calvin Smith had known that he was not replacing the bean because replacement would have required the removal of the family room ceiling as well as the sheeting on the roof over the beam. Gary Smith stated that the wood shown in Exhibit 3 was not rotten but water stained and that the beam was sufficiently solid to hold the weight of the roofing materials on top of it and to nail the new sheeting into.

   
   

6. Tommy Thompson, construction inspection supervisor of the City of Jacksonville, inspected the roof of Calvin Smith's home. Thompson found that the shingles had not been lapped properly, that some shingles had been laid so that the ceiling strips would not adhere properly, that rotten rafters and wood had been left, that the correct number of nails had not been placed in the shingles, that metal flashing around the chimney had not been installed in accordance with the manufacturer's specifications, and that one, twelve inch hold had been left in the roof sheeting.

   
   

7. Thompson identified the Building Code of the City of Jacksonville and those portions of the code relating to installation of roofing materials. Thompson stated that the items mentioned in the paragraph above constituted violations of the code. Thompson also pointed out that it was a violation of the code to commence construction or repair of a roof without obtaining the requisite building permit.

   
   

8. J. R. Bond, Executive Director of the Construction Trades Qualifying Board of the City of Jacksonville, stated that the board did not certify roofers. The ordinances of the City of Jacksonville empower the Construction Trades Qualifying Board to hear complaints against state registered but unlicensed contractors. However, the board lacks authority to take direct action against persons who are state registered but unlicensed. The board may only request that the city building official not issue the individual any further building permits. The building official must exercise his own independent authority and judgment in determining whether to suspend an individual's right to obtain building permits. The building official suspended Smith's privilege to obtain permits without a hearing.

   
   

   CONCLUSIONS OF LAW

   
   

9. Count I of the Administrative Complaint alleges that Smith willfully and deliberately violated the building code of the City of Jacksonville by failing to obtain required building permits before commencing construction and by not adhering to the building code in the construction of Calvin Smith's roof.

   
   

10. The evidence presented shows that Smith did violate the code by willfully failing to obtain required building permits prior to commencing construction. The evidence presented shows that this was a pattern of conduct by Smith. The testimony of Tommy Thompson who was qualified to determine whether roofing had been installed in the manner prescribed by the manufacturer indicated that Gary Smith had not installed the flashing around the chimney in accordance with manufacturer's specifications, and had not secured the roofing shingles with the required number of fastenings. Reference to the City Code of Jacksonville shows that these are violations of specific code provisions.

    
    

11. Regarding Count II, the Florida Construction Industry Licensing Board alleges Smith has been disciplined by the City of Jacksonville and seeks to review that action. The facts reveal that the only hearing afforded Smith regarding this matter was by the Local Trade Qualifying Board; however, that

    board lacked the authority to take direct action against Smith. The board was limited to requesting that the building official suspend Smith's privilege to obtain building permits. The testimony was uncontroverted that the building official exercised his own discretion in determining whether to follow the board's request. Although the building official did suspend Smith's privilege, he did so without affording Smith any type of hearing.

    
    

12. The statutory provision under which the Florida Construction Industry Licensing Board brings this charge states that the board shall review the action taken before it takes any action. In this instance, the only procedure to review is that of the Local Qualifying Board which did not act; therefore, there is nothing for the Florida Construction Industry Board to review. While the Florida Construction Industry Licensing Board may institute a separate proceeding based upon the same facts which caused the local building official to act, as it has in Count I, the Florida Construction Industry Licensing Board cannot proceed under the provisions of Section 468.112(2)(f), Florida Statutes, because the disciplinary action taken by the building official of the City of Jacksonville was taken without affording Smith procedural due process. To permit the Florida Construction Licensing Board, which is subject to Chapter 120, Florida Statutes, to take action against Smith's license merely upon a showing of local disciplinary action which did not afford due process permits the state board to circumvent due process requirements of Chapter 120. Therefore, this count should be dismissed.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions of Law, the Hearing Officer recommends that Smith's registration as a roofing contractor be suspended for a period of one year.

DONE and ORDERED this 3rd day of January, 1979, in Tallahassee, Florida.

STEPHEN F. DEAN

Hearing Officer

Division of Administrative Hearings

530 Carlton Building Tallahassee, Florida 32304 Telephone: 904/488-9675

COPIES FURNISHED:

Michael Egan, Esquire

217 South Adams Street Tallahassee, Florida 32304

Gary A. Smith

Sirmons Roofing Company 3845 Edidin Drive

Jacksonville, Florida 32211

J. K. Linnan, Executive Director Florida Construction Industry

Licensing Board Post Office Box 8621

Jacksonville, Florida 32211

================================================================= AGENCY FINAL ORDER

================================================================= BEFORE THE CONSTRUCTION INDUSTRY LICENSING BOARD

FLORIDA CONSTRUCTION INDUSTRY LICENSING BOARD,

Petitioner,

vs. CASE NO.: 78-1780

GARY A. SMITH d/b/a SIMMONS ROOFING CO., RC 0030047, 3845 Edidin Drive,

Jacksonville, Florida 32211,

Respondent.

/

FINAL ORDER OF

FLORIDA CONSTRUCTION INDUSTRY LICENSING BOARD

This cause came before the FLORIDA CONSTRUCTION INDUSTRY LICENSING BOARD at its regular meeting on February 2, 1979.

Respondent was sent the Hearing Officer's findings and recommendations and was given at least 10 days to submit written exceptions to the recommended order. Respondent was notified of the meeting so that respondent or counsel might appear before the Board. Respondent did not appear.

The FLORIDA CONSTRUCTION INDUSTRY LICENSING BOARD on February 2, 1979,

after having reviewed a complete transcript of the administrative hearing, adopted the findings of fact and conclusions of law set forth in the recommended order dated January 2, 1979, and by motion duly made and seconded voted to

suspend the registration of GARY A. SMITH for 2 years or until reinstated by the Jacksonville Trades Qualifying Board, plus a $300.00 fine. It is therefore,

ORDERED that the registration of respondent GARY A. SMITH, Number RC 0030047, be and is hereby suspended for 2 years or until reinstated by the Jacksonville Trades Qualifying Board, plus a $300.00 fine is imposed.

Respondent is hereby notified that he has 30 days after the date of this final order to appeal pursuant to Chapter 120, Florida Statutes, and the Florida Appellate Rules.

DATED this 2nd day of February, 1979.

FLORIDA CONSTRUCTION INDUSTRY LICENSING BOARD

JOHN HENRY JONES PRESIDENT

Docket for Case No: 78-001780

Orders for Case No: 78-001780