vs. ) Case No. 85-3254
JAMES M. McCURLEY, )
Respondent. )
This matter came on for hearing in Fort Lauderdale, Florida, before Robert T. Benton, II, Hearing Officer of the Division of Administrative Hearings, on February 12, 1986. The Division of Administrative Hearings received the transcript of proceedings on February 26, 1986, and petitioner's proposed recommended order on March 12, 1986. Petitioner's proposed findings of fact are dealt with by number in the attached appendix. Respondent James M. McCurley appeared on his own behalf. Petitioner was represented by counsel:
For Respondent: James M. McCurley, pro se
By administrative complaint filed May 16, 1985, petitioner alleged that respondent "at all times material.
. . . registered roofing contractor. . . [o]n or about August 24, 1983,. . . contracted with Thomas v. Shoop, manager of Mayani Biscayne Condominiums in Miami and of Camelot South Apartments in Ft. Lauderdale, to repair the roofs of both buildings. . .[although] Respondent did not
obtain the required permits for either building"; that respondent "did not meet the local licensing requirements for Dade County"; that the contract "contained a three-year guarantee against leaks"; that "leaks began to occur in 1984 in all buildings"; that "Shoop made numerous calls to the Respondent but the calls were unanswered or never returned"; that respondent "did some repair work at the Miami location. . . [but] never performed any repairs at the Ft. Lauderdale location. . . [and so] failed to honor said guarantee in a reasonably timely and diligent fashion"; and that "upon the foregoing allegations, Respondent is in violation of Sections 489.129(1)(j) and 489.117(2), Florida Statutes (l983), by contracting in a locality he was not locally licensed in. . .[and] violated Section 489.129(1)(d), Florida Statutes (1983), by willfully or deliberately disregarding and violating the applicable building codes or laws of the state or of any municipality or counties thereof. . . [and] is in violation of Section 489.129(1)(m), Florida Statutes (1983), in that there is evidence of misconduct or gross negligence or incompetency in the practice of contracting."
When petitioner requested formal administrative proceedings, the matter was referred to the Division of Administrative Hearings, in keeping with Section 120.57(1)(a)1., Florida Statutes (1985).
Whether respondent's license should be revoked, suspended or restricted, or whether an administrative fine should be levied against him, or whether he should be reprimanded for the reasons alleged in the administrative complaint?
James M. McCurley is a registered roofing contractor, holding Florida License No. RC 0042226. Licensed in Florida since 1982, Mr. McCurley has been in the roofing business for 25 years all told. Although he holds a state license, he is registered to do roof projects in Broward County only, 82-3201-R-R.
Thomas v. Shoop, a real estate broker, manages the Mayani Biscayne Condominiums in Miami at 5995 Biscayne
Boulevard, (Mayan) and the Camelot South Apartments on 17th Street in Fort Lauderdale (Camelot), which consist of three buildings (A, B and C). Above Camelot B's roof, which "is not properly set up for drainage at all," (T. 183), loomed a leaking water tower, which has only recently been fixed. In the summer of 1983, all four buildings' roofs leaked; and the roofer who had given long-term guarantees on Camelot's roofs had gone bankrupt.
An associate of Mr. Shoop knew one John Emig, who was a salesman for Mr. McCurley. Messrs. Shoop and Emig visited the roofs and discussed the problems. In order to "mak[e] sure that they got a reputable roofer. . . [Mr. Shoop] did great deal of research with a list . . . [of] people that [Mr. McCurley] had done work for and were satisfied." (T. 16).
Through Mr. Emig, Mr. McCurley offered to replace the 8,000-square-foot roof on Camelot B for $25,000. Further conversations eventuated instead in an agreement, reduced to a separate writing with respect to each Camelot building, Petitioner's Exhibit No. 2, that called for Mr. McCurley to repair, clean and paint the root and soffits of the three Camelot buildings. The contract for Camelot A characterized the work both as restoration and as preventive maintenance.
Repairs were to be effected "as needed." The contracts recited the roofing contractor's "opinion [that] the following maintenance work should put this roof and mansard in the best possible condition, and that it reasonably can be expected to have up to a five year service life." Petitioner's Exhibit No. 2. The agreements specified installation of a total of 35 vapor pressure release vents and stated that Mr. McCurley was to:
Check and reseal where needed all pitch pockets, using 10-year rubberized elastomers.
. . . Remove all blistering coating from the roof decks and at all such spots install a repair patch. Repair any bulges or blisters and treat all cracks as needed using elastomeric and waterproofing membrane. Petitioner's Exhibit No. 2
The contracts were typed on printed forms. When Mr. Emig and Mr. Shoop signed the roofing contracts on August 24, 1983, Mr. McCurley was not present. At the time the agreements were signed, "3 was substituted for "1" in the phrase, "The above work . . . carries with it our 1 year Pree Service Guarantee should any leak occur . . ." Petitioner's Exhibit No. 2. Unchanged was a typewritten paragraph on each contract stating:
In this particular situation our warranty shall be a one year unconditional one, which is standard procedure in the industry.
Petitioner's Exhibit No. 2.
Although Mr. Shoop dealt primarily with Mr. Emig in negotiating the contract, Mr. Shoop and Mr. McCurley went up on a roof together at one point before the contracts were signed. On September 20, 1983, an addendum to the contracts, calling for work on the buildings other than roofing, was executed. The contract price for the roofing work was less than 40 cents per square foot.
The roofs in the Camelot complex were built-up tar and gravel, coated with a cementitious fill. Ordinarily insulation lies underneath a built-up roof of this kind. The vapor pressure release vents were proposed and contracted for on the assumption that insulation underlay the tar, insulation which permitted lateral movement of water and water vapor trapped by the tar and cementitious fill. Pressure attendant on vaporization of water trapped underneath the tar and fill is the apparent cause of the cracking and blistering that led to the leaks.
In installing the first vapor pressure release vent, Mr. McCurley discovered that the tar had been placed directly on the roof sheathing. He explained to Mr. Shoop that there was no good reason to go forward with installation of the other vents because the impermeability of tar and fill precluded lateral movement of moisture and, therefore, its escape in any significant quantity through the vents. Mr. Shoop insisted, however, that all the vents called for by the contract go in, and Mr. McCurley complied. The vents stood useless (T. 99) but firmly affixed to the roof as recently as five or six months before the hearing. (T. 94) Thereafter, many were
dislodged by the contraction and expansion of the roof, aggravating the leakage problems.
To meet the contract requirement of an "elastomeric and waterproofing membrane," Mr. McCurley employed a coating he had never used before, but one which was advertised by a company listed on the New York Stock Exchange, Rohm & Haas, as capable of withstanding ponding water. At the time he entered into the contract, Mr. McCurley did not know that this claim was false. In the fall of 1983, he applied this coating not only to places where cementitious fill had bulged, blistered, or cracked, but also to unblemished portions of the Camelot roofs, covering them entirely twice, before applying a final coat of high gloss white paint. Before he was paid, Mr. McCurley had done everything called for by the contract.
On May 30, 1984, however, Mr. Shoop told Mr. Emig that old leaks had reappeared and that new leaks had sprung open. Mr. Shoop also telephoned and left word for Mr. McCurley to this effect on June 15, 18, and 19. On July 5, 1984, Mr. Shoop wrote Mr. McCurley a letter, Petitioner's Exhibit No. 4, in response to which Mr. McCurley applied another acrylic waterproofing compound and plastic cement. When he finished, "it looked from a laym[a]n's point of view that it was a good job." (T. 31). In November of 1984, the B building roof still looked good but it leaked. In response to complaints, Mr. McCurley returned several times to repair blistered areas with acrylic waterproofing and to apply plastic cement. Typically these repairs prevented leaks the next hard rain but not the one following.
Camelot B needs reroofing, which involves taking out the existing roof and building up a new one with tar and gravel, the approach Mr. McCurley originally recommended.) Mr. Hilson, who has spent approximately 30 years in the roofing business, testified that the coatings that Mr. McCurley used were permeable, and inappropriate for use on horizontal surfaces on that account. Specifically, after inspecting Camelot B's roof, Mr. Hilson testified:
It has continued to leak from what we was shown and told.
I made a note here that it takes a zero perm rating to hold back water, and these coatings apparently have no such perm rating.
These coating[s] are breathable. And because they are breathable they allow water to go through them and become trapped, underneath the cementious fill.
The only type of coating that we know of that these type of coatings were normally used on vertical surfaces where water can't stand on them, showing these photographs here the water where it does pond on this coating, it deteriorates the coating. It actually eats it. The fungus attacks it.
Basically that's it, except where the bottom statement that I made is that these type of coatings cannot hold back water and should not be used to try to hold back water.
And anybody with any roofing knowledge should understand or know they can't hold back water. (T. 71, 72).
Respondent McCurley testified that he did not know what numerical "perm rating" the material he used had been given, but that he relied on the manufacturer's representations that it would withstand ponding, when he told Mr. Shoop that he thought it would work. He did not dispute that the coating had failed.
Mr. Hilson was of the opinion that not even an impermeable coating would have worked, because it would not only have prevented water's penetrating, but would also have trapped moisture already in the cementitious fill. In his view, when the trapped water vaporized, it "would have blown the system off". Petitioner's Exhibit No. 7.
Mr. McCurley also contracted with Mr. Shoop to work on the roof of the Mayani apartment building in Miami. For $1200.00, he undertook, among other things, to check and reseal as needed "litch [sic] pans," repair three leaks in the deck, cover "all bald spots with gravel," and install Gravel Lok over the entire gravel roof area. The leak repairs were unconditionally guaranteed for a year. After work was completed, Mr. McCurley received full payment on September 6, 1983.
Before he began work, Mr. McCurley telephoned some government office in Dade County and asked whether a permit was "required to put a cement coating over a gravel built-up roof," (T. 9) and was told that none was required. After the present proceedings were instituted he called again and got the same answer. As a practical matter, persons not licensed as roofers, including "the average painter, goes out and does a waterproof of a roof." (T.
103) Repair of the three leaks probably cost Mr. McCurley
$30.00. (T. 99)
When he began on the Mayani roof Mr. McCurley was aware that Dade County's code is similar to Broward County's, which incorporates the South Florida Building Code, and knew specifically that Dade County required a permit for roofing repairs "after Three Hundred dollars," (T. 98) a permit he was ineligible to obtain. Dade County does indeed require permits for the "application, construction or repair of any roof covering. . .exceeding three hundred dollars (S300.00) in value of labor and materials, . . . or for work exceeding 2 roofing squares in extent," Petitioner's Exhibit No. 6, and the requirement applied to the job Mr. McCurley did at Mayani. (T. 66).
When Mr. Shoop reported the Camelot leaks to Mr. Emig on May 30, 1984, he also reported leaks at Mayani that had appeared after heavy rains in Miami. Eventually respondent repaired the Mayani roof, but problems developed again in November of 1984.
CONCLUSIONS OF LAW
Petitioner is authorized to take disciplinary action against licensees, when violations of Section 489.129, Florida Statutes (1985) are properly pleaded and proven. Specifically, petitioner's Construction Industry Licensing 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. . . 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.
Section 489.129(1), Florida Statutes (1985).
Petitioner contends in the present case that respondent has violated Section 489.129(1)(~), Plorida Statutes (1985) by willfully failing to comply with Section 489.117(2), Florida Statutes (1985), which provides:
Registration allows the registrant to engage in contracting only in the counties, municipalities, or development districts where he has complied with all local licensing requirements and only for the type of work covered by the registration.
Petitioner abandoned its allegation in the administrative complaint, that respondent failed to obtain the required permits for the Broward County Job.
In a matter as grave as license revocation proceedings, the duty allegedly breached by the licensee must appear clearly from applicable statutes or rules or have a "substantial basis," Bowling v. Department of Insurance, 394 So.2d 165, 173 (Fla. 1st DCA 1981), in the evidence. Disciplinary licensing proceedings like the present case are potentially license revocation proceedings, even in the absence of a recommendation of revocation, since the penalty for the infraction alleged lies within the discretion of the disciplining authority, if allegations of misconduct are established at a hearing. Florida Real Estate Commission v. Webb, 367 So.2d 201 (Fla. 1979). License revocation proceedings have been said to be "'penal' in nature." State ex ref. Vining v. Florida Real Estate Commission, 281 So.2d 487, 491 (Fla. 1973); Kozerowitz v. Florida Real Estate Commission, 289 So.2d 391 (Fla. 1974); Bach v. Florida State Board of Dentistry, 378 So.2d 34 (Fla. 1st DCA 1979) (rein. den. 1980).
The evidence showed clearly and convincingly that respondent McCurley engaged in contracting in Dade County where he had not complied with local licensing requirements. This was a material failure to comply with Section 489.117(2), Florida Statues (1985) and, therefore, a violation of Section 489.129(1)(j), Florida Statutes (1985).
Petitioner also proceeds on the theory that respondent's failure to obtain a permit before beginning work in Dade County amounted to "[w]illfull or deliberate disregard and violation of the applicable building codes," but Mr. McCurley's testimony, about telephoning beforehand and being told that painting over the gravel on a built-up roof with plastic cement did not require a permit, has been credited. Since the evidence did not clearly establish that this component accounted for less than $900.00 of the total price of $1200.00, there was not a clear and convincing showing that respondent's doing the Mayani job without a permit was a deliberate or willful violation of the Dade County code even though the evidence did establish that failure to obtain the permit was a violation, and that respondent was ineligible to get a permit in Dade County, in any event. At the hearing, petitioner abandoned any claim that respondent violated Broward County ordinances.
Petitioner also contends that respondent was "guilty of fraud or deceit or of gross negligence,
incompetency or misconduct in the practice of contracting" by using the Rohm & Haas product and representing to Mr.
Shoop that application of the product would fix the leaks, by representing that the moisture release vents would be useful, and by failing to honor warranties. The evidence showed that experienced roofers have a healthy skepticism for claims that rubberized elastomers will render horizontal surfaces waterproof, but petitioner's expert testified that products with a "zero perm" rating are capable of protecting horizontal surfaces. From the fact that it had been unable to withstand ponding water, Mr.
Hilson concluded that the Rohm & Haas product respondent used did not have a non-permeable or "zero perm" rating. But this falls short of a showing that respondent was guilty of negligence, incompetency, or misconduct in assuming that a product said to be capable of withstanding ponding was impermeable, and in making representations to Mr. Shoop that flowed from that predicate.
A chief strategy for preserving the life of the roof was installation of the vents. Respondent undertook to apply the rubberized elastomer only where he patched, although he ended up applying it to the whole surface. The use of moisture release vents was on the assumption that the coating was impermeable, so that another avenue for the escape of water vapor was necessary, and on the assumption that insulation between the sheathing and the tar would permit lateral movement of moisture. Neither assumption was shown to be unreasonable, although both proved false.
Once he discovered that the Camelot roofs lacked insulation (because they did not conform to industry standards in that respect), Mr. McCurley realized the vents would be unavailing, and so informed Mr. Shoop, who insisted that the contract be adhered to, as originally drawn. Perhaps Mr. McCurley was aware at that early point that the project was foredoomed, even if the coating had been able to withstand ponding water, as he then believed. The logical implication of the inutility of the moisture release vents was-that water vapor under pressure would cause continued deterioration of the roof. Respondent is guilty of carrying through on a contract, at the owner's insistence, after he learned the facts that should have put him on notice that the work contracted for would not accomplish the owner's objective', but respondent's installation, of the moisture release vents was not a violation of Section 489.129(1)(m), Florida Statutes
(1985).
Respondent's representative agreed to a three- year warranty for the Casnelot roofs. The evidence showed that respondent made repeated repairs to breaches in the "waterproof" coating, but that the roof of building B reached such a condition that it did not keep water out for two hard rains in succession, because the tar and the cementitous fill were breaking down from the pressure of water vapor. Respondent was not under an obligation to perform the $25,000.00 reroofing job he originally recommended in order to make good on the warranty he gave on the $3,000.00 job he got. But he was bound, by the guarantee given on the roof he worked on for Mr. Shoop, to respond promptly to complaints of leaks and would have done well to inspect more frequently, and on a prophylactic basis. By waiting five or six weeks to respond to complaints, Mr. McCurley failed to honor the warranties in a timely fashion, and so was guilty of misconduct, within the meaning of Section 489.129(1)(m), Florida Statutes, 1985).
$500.00 on respondent.
DONE and ENTERED this 25th day of March, 1986, in Tallahassee, Florida.
ROBERT T. BENTON, II
Filed with the Clerk of the Division of Administrative Hearings this 25th day of March, 1986.
Fred L. Seely, Executive Director Construction Industry Licensing Jacksonville, Florida 32201
Nancy M. Snurkowski, Esquire Department of Professional Regulation
James M. McCurley 6541 N. E. Way
Salvatore A. Carpino, Esquire Department of Professional Regulation
12, 13, 15 through 18, 20, 22, 23, 28, as, and 31 of petitioner's proposed findings of fact have been adopted, in substance.
The second sentence of paragraph 7 has been rejected as not being established by the weight of the evidence.
Mr. McCurley's testimony on this point has been credited, in light of the language in the contracts, notwithstanding Mr. Shoop's testimony to the contrary.
Paragraphs 10, 11, and 24 have not been adopted because they suggest that the waterproofing was the only means proposed to stop and prevent leaks.
Paragraph 14 does not break out the roofing costs for the Camelot project which amounted to much less than the total figure, which included painting and other building maintenance.
Paragraph 19 has not been adopted because the evidence did not show that the attempts were negligible.
Paragraph 21 is not material to any allegation in the administrative complaint.
Paragraphs 25 and 26 have not been adopted because they assume that the Rohm & Haas product does not have a "zero perm" rating, which the evidence did not prove.
Paragraph 27 has not been adopted because it was not shown to be improper for respondent to go forward when Mr. Shoop insisted, nor proven clearly and convincingly that the installation was technically deficient. The evidence did show that the vents served no useful purpose.
Paragraph 30 has not been adopted because it was not established by clear and convincing evidence.
