STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

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

)

Petitioner, )

)

vs. ) CASE NO. 87-1719

)

LARRY DAVID COMES, )

)

Respondent. )

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

)

Petitioner, )

)

vs. ) CASE NO. 87-2009

)

CHARLES J. GOREE, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, Veronica E. Donnelly, held a formal hearing on January 26, 1988, and March 7, 1988, in Merritt Island, Florida.

APPEARANCES

For Petitioner: David L. Swanson, Esquire

Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32399-0750

For Respondent COMES: J. Ransdell Keene, Esquire

400 Travis, Suite 201 Post Office Box 56

Shreveport, LA 71161-0056

For Respondent GOREE: Charles J. Goree, pro se

1605 Richard Road

Merritt Island, Florida 32952

The DEPARTMENT OF PROFESSIONAL REGULATION, Petitioner, filed Administrative Complaints before the Construction Industry Licensing Board alleging that the Respondent COMES and the Respondent GOREE violated provisions of Sections 489.105, 489.119 and 489.129, Florida Statutes, in a joint construction project which involved the reroofing of a condominium apartment building in Merritt Island, Florida. The two complaints which were filed against the Respondents

were consolidated for purposes of hearing. The Petitioner seeks to have penalties imposed against the Respondents for the alleged statutory violations.

During the hearing, the applicable parties mutually agreed to stipulate to Counts 1-7 of the complaint filed in Case No. 87-1719 and to Counts 1-7 of the complaint filed in Case No. 87-2009. Nine mutual exhibits were entered into evidence.

The Petitioner submitted three additional exhibits and presented eight witnesses at hearing. The Petitioner's two expert witnesses were presented by way of deposition. Their depositions have been marked as Joint Exhibit No. 7, and Petitioner's Exhibit No. 3, respectively.

The Respondent COMES submitted two more exhibits, presented three witnesses, and testified in his own behalf. The Respondent GOREE submitted another seven exhibits, presented five witnesses, and testified in his own behalf. The Petitioner did not offer any rebuttal evidence in response to the defenses presented by the Respondents. No additional evidence was presented by the parties.

A transcript of the proceedings was not ordered. The Respondent GOREE waived his opportunity to submit Proposed Findings of Fact and Conclusions of Law. The Petitioner and Respondent COMES requested that the deadline for filing Proposed Findings of Fact and Conclusions of Law be moved to April 7, 1988.

Both parties timely submitted their proposals by the revised deadline. All parties agreed to waive the thirty day requirement for the filing of the Recommended Order. Specific rulings on the Findings of Fact submitted by the parties are found in the attached Appendix.

FINDINGS OF FACT

1. At all times material to these proceedings, the Respondent LARRY DAVID COMES, was licensed by the State of Florida as a registered specialty contractor and held license number RX00400762. Mr. Comes is the qualifying agent for D & L Enterprises.

   
   

2. At all times material to these proceedings, the Respondent CHARLES J. GOREE was licensed by the State of Florida as a certified general contractor and held license number CG C007621. Mr. Goree is the qualifying agent for CJC Incorporated.

   
   

3. In the beginning of the year 1985, the Island Village Association decided to reroof all six buildings located in the condominium project. At the time of the decision, all of the roofs were leaking. The existing roofs had been repaired and patched numerous times since the condominiums were built in 1973.

   
   

4. On February 27, 1985, the Respondents COMES and GOREE submitted a joint proposal to the association to remove the existing built-up roof, apply a Neoprene/Hypalon roof, and remove and reshingle the mansard roof for $19,865.00.

   
   

5. On April 15, 1985, a written contract was entered into between Island Village Condominium Association and David L. Comes, d/b/a D & L Enterprises, as contractor for the reroofing of Building "C." The Contract required the contractor to furnish all materials and labor to remove the existing built-up roof. Rotten wood on the deck was to be replaced on a time and materials basis. Damaged scuppers were to be replaced and other scuppers were to be cleaned out

   by the contractor. The Neoprene/Hypalon system would then be applied to the flat roof and the parapet walls. The mansard roof was to be removed and reshingled.

   
   

6. Although Charles J. Goree, d/b/a CJC Incorporated, was not named in the contract, the omission was an oversight. At all times during the course of the reroofing project, the Respondent GOREE was responsible for the removal of the existing built-up roof and the application of new shingles to the mansard roof. The Respondent COMES was responsible for the application of the Neoprene/Hypalon roofing system. The reroofing project was a joint undertaking in which Respondents GOREE and COMES exercised equal authority, joint control, or right of control. The Respondents had a community of interest in the performance of the contract with the association. Respondents GOREE and COMES were familiar with what was required of each of them under the verbal joint venture agreement as they had conducted business in the same manner over an extended period of time on several projects.

   
   

7. On May 10, 1985, Respondent GOREE applied for and received a building permit for the reroofing of Building "C" at Island Condominiums.

   
   

8. During the removal of the built-up roof, GOREE observed "an absolute mess and disaster." The roof had been patched in various ways on numerous occasions. GOREE observed a few "T nails" in a piece of metal stripping picked up with shovels on the roof. The "T nails" discovered were the type which are shot into materials from a nail gun. (See GOREE Exhibit #2) They are not used to secure plywood on a deck because of their short length. Another "T nail," such as GOREE's Exhibit 2, was found by GOREE lying on the area of the roof by the air conditioners. This area of the existing roof was not removed or disturbed during the reroofing process.

   
   

   In the application of his common sense and knowledge of good construction practices and in light of the material in which the "T nails' were located, Respondent GOREE was not put on notice that these "T nails" may have been used to fasten the plywood decking.

   
   

   The type of "T nail" which was used upon plywood roof decking a few years ago in Florida was longer, thicker, and shaped like an elongated wedge. (See GOREE Exhibit 4) None of the "T nails" formerly used for plywood decking were observed by GOREE on the roof.

   
   

9. Once the built-up roof was removed, Respondent COMES acted within the terms of the joint venture agreement by applying the Neoprene/Hypalon roofing system in full compliance with the specifications as set forth in the contract with Island Village Condominium Association. During the application of the system, COMES and his crew did not observe any conditions on the plywood decking which would alert them to the possibility of any future problems with the system.

   
   

10. On May 17, 1985, Mr. Jim Peaks, an Inspector for Brevard County, completed a "dry in" inspection of the roof on Building "C" which had been requested by Respondent GOREE. Mr. Peaks placed a stop order on the project because the Neoprene/Hypalon roofing system was not an approved product under the Southern Building Code which he believed was in effect in Brevard County on May 14, 1985. In actuality, the 1982 Standard Building Code was in effect at the time.

Upon receipt of the stop order, Respondents COMES and GOREE went to the building department and met with Murray Schmidt, Mr. Peaks' supervisor. Mr. Schmidt had the authority to override Mr. Peaks' stop order. Mr. Schmidt, who was new to the county and his position, discussed the stop order with the Inspector. Mr. Peaks refused to remove his stop order because of the lack of code compliance. Mr. Schmidt verbally allowed the Respondents GORE and COMES to continue to work on the roof. Mr. Peaks was told to investigate the roofing system with the Southern Building Code Conference in Birmingham, Alabama. The Respondents were not notified again as to the status of the stop order, one way or the other. Because the Respondents had been told to continue the work on the roof by Mr. Schmidt, who had the authority to override stop orders, the Respondents reasonably assumed that a stop order was no longer in effect. In fact, the permit had the notation "See Murray" on it after the stop order notation.

1. Upon completion of the project, Respondent COMES contacted the building department and requested a final inspection. In the usual course of dealing between contractors and the building department in Brevard County, a contractor is notified only if there is a problem with the project which needs correction before final approval. Neither COMES or GOREE received notification of a problem.

   
   

   Another recognized, usual course of dealing between a contractor and the building department is that the department notifies an owner or the contractor if a six month permit has expired and a final inspection has not been completed. GOREE was not notified of any permit expiration in this case. Again, the Respondents were given the impression by the inactivity in the building department that business was being conducted in the usual manner. The Respondents believed, based upon past and ongoing dealings with the department, that all of their obligations had been met on the reroofing project.

   
   

2. On May 28, 1985, the final payment was received from Island Village Condominium Association and a limited warranty was issued in both Respondents' company names, pursuant to the contract with the association.

   
   

3. Shortly after completing the job on Building "C," Respondent COMES was called to repair leaks in the new roof. COMES responded promptly and courteously, and placed the blame for the leakage on various factors such as:

   (1) The short "T" fasteners had begun popping through the Neoprene/Hypalon and destroyed its ability to prevent water penetration. (2) The roof had an inadequate drain system. (3) The plywood deck was bowed in a concave fashion due to the years of improper weight and excess water on the roof.

   
   

4. During a meeting with the board of directors of the association requested by COMES, COMES offered to put on a new roof if the board would install sump pumps to remove standing water. The board rejected COMES offer and authorized the condominium property manager to seek other solutions. The Respondents were not contacted by the board again concerning alternative solutions to the problem.

   
   

5. In June of 1986, Mr. Rex Lahr, the condominium property manager, began a review of the roof situation. After consulting with Mr. Tom Butler of the county building department, Mr. Lahr decided that an architect needed to be retained by the association to determine whether a structural deficiency or the new roofing system caused the leaks in the roof.

6. An architect was not hired by the association. A traditional, built- up roof was applied over the Neoprene/Hypalon roofing system. In the application of the new roof, the drainage system was redone and the flat roof was given pitch, thereby redesigning the roof as well.

   
   

7. Mr. Robert B. Hilson, who was tendered as an expert witness in the case, opined that the Respondents COMES and GOREE failed to properly determine whether the roof deck was in a condition to accept the Neoprene/Hypalon system.

   
   

8. Mr. Robert H. Adams, who was tendered as an expert witness in the case, opined that the leaks which developed soon after the application of the Neoprene/Hypalon system indicated that the deck was not in a condition to accept the system.

   
   

9. Although there is some basis in fact for the opinions rendered by the two experts, their opinions must be rejected for the following reasons: (1) The experts did not personally observe the building, nor was a determination made which would exclude the possibility that the roofing system failed as a result of structural or design defects. (2) There is ample evidence in the case to support a finding that the leaks were caused by structural or design defects, as well as latent defects not readily observable to the Respondents at the time the roofing system was applied, and outside the terms of the reroofing contract.

   
   

10. Some examples of evidence which support a finding that the leaks were caused by structural or design defects are: (1) Mrs. Delores Hammels' testimony that all six buildings had to be reroofed as they all leaked periodically throughout their 12 years of existence; (2) the redesign of the drainage system and the placement of a pitch on the roof by Mr. Roush; (3) the testimony and sketch submitted by Respondent GOREE (GOREE Exhibit #5) which shows that an identical building with a pitch on the roof allows the drainage system, including the internal hidden piping system, to work correctly. The effective redesign of the roof by Mr. Roush confirms this theory as much as, or more than, Mr. Robert H. Adams' theory that the deck was not in a condition to accept the Neoprene/Hypalon system.

    
    

    CONCLUSIONS OF LAW

    
    

    Based upon the foregoing findings of fact and on the applicable legal principles, I make the following conclusions of law:

    
    

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

    
    

12. Section 489.129, Florida Statutes, empowers the Florida Construction Industry Licensing Board to revoke, suspend, or otherwise discipline the license of the Respondents if they are found guilty of any acts enumerated in Section 489.129, Florida Statutes.

    
    

13. Section 489.129(1), Florida Statutes, as it applies to both Respondents, reads as follows, in pertinent part:

    
    

    1. 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 bound 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.

       
       

14. The Respondent GOREE is charged with having violated Section 489.129(1)(d), Florida Statutes, by reason of willful or deliberate violation of the applicable local law. GOREE is charged with failing to obtain one or more required inspections on the Island Village Condominium Building "C" reroofing project. In the alternative, GOREE is charged with failing to assure that required permits and/or inspections were obtained.

    
    

15. The Respondent COMES is charged with having violated Section 489.129(1)(d), Florida Statutes, for ignoring building department correction notices.

    
    

16. Upon review of Ordinance No. 83-19 of Brevard County and Sections 107 and 108 of the 1982 Standard Building Code as submitted as joint exhibits by the parties, the building official is responsible for causing an inspection at various intervals on work for which a permit is required. As Section 108.2(d) only applies to the inspection process in Section 108.2(c) of the Standard Building Code, the Respondent GOREE was not required to obtain written approval from Mr. Murray Schmidt, the building official, to proceed with the building project after the stop work order of May 17, 1985. Mr. Schmidt's verbal instruction to continue and his tacit approval as to the use of Neoprene/Hypalon materials on the project negates the charges that GOREE and COMES willfully violated applicable local law when the project continued after the stop order.

    
    

17. If Mr. Schmidt had rejected or refused to approve the materials used at the site, the Respondents would have been able to appeal the decision to the Contractors Licensing Board. The county cannot give verbal approval to proceed, thwart appeal rights by giving the verbal approval, and then later claim the Respondents were in willful violation of local law for going forward on the basis of the verbal approval. The Respondents GOREE and COMES successfully rebutted the allegations that they willfully violated Section 489.129(1)(d), Florida Statutes, when the project went forward after the stop order.

    
    

18. The Respondents were joint adventurers in the reroofing project which is the subject matter of the two Administrative Complaints. Although GOREE did not personally request a final inspection of the project, there is substantial, competent evidence that GOREE instructed COMES to request a final inspection and that COMES promptly carried out these instructions. Testimony from various

    witnesses revealed that due to the prior course of dealings between the two contractors and the department and the normal business practices of the department, the Respondents were not placed on notice that a final inspection had not occurred on the reroofing project. Accordingly, the charges that each Respondent willfully violated Section 489.129(1)(d), Florida Statutes, should be dismissed for insufficient evidence

    
    

19. The Respondent GOREE is charged with failure to discharge supervisory duty as qualifying agent under Section 489.129(1)(j), Florida Statutes, as the roof coating was not applied properly. The Respondent CONES is charged with the same violation. The proof as adduced in hearing is insufficient to sustain this violation. The leaking through the roof could equally have been caused from structural deficiencies as opposed to the improper application of the Neoprene/Hypalon coating. As causation was never proved and there was no competent testimony based upon personal knowledge of a misapplication of the roofing system on the roof by the Respondents, the charge that the Respondents GOREE and COMES each violated Section 489.129(1)(j), Florida Statutes, should be dismissed for insufficient evidence.

    
    

20. The Respondent COMES responded to all of the service requests made by the condominium association. When the cause of the leaking appeared to him to be a structural or design defect, the Respondent COMES offered a possible solution and offered to reroof the building under the limited warranty if corrections were made to the roof via sump pumps. Based upon the foregoing, the charge that the Respondent COMES failed to respond to service requests should be dismissed.

    
    

21. The Respondents are each charged with violation of Section 489.129(1)(m), by reason of having engaged in gross negligence, incompetence, misconduct, fraud, or deceit in the practice of contracting. The only facts alleged in the Administrative Complaints to support these charges are the allegations that noted deficiencies were not corrected and a final inspection was not requested. I have already concluded that the Respondents have sufficiently rebutted these allegations as well as the allegations that the roof coating was improperly applied. The activities of the Respondents as set forth in the Administrative Complaint and rebutted during hearing did not constitute gross negligence, incompetence, misconduct, fraud, or deceit in the practice of contracting. Therefore, the charge that the Respondents violated Section 489.129(1)(m), Florida Statutes, should be dismissed for insufficient evidence.

    
    

22. Finally, the Respondents are each charged with having violated Section 489.129(1)(j), Florida Statutes, ". . . by failure to discharge supervisory duty as qualifying agent, in violation of 489.119 and 489.105(4)." If the Respondents had been found to have been guilty of any of the violations set forth in the Administrative Complaints as a result of competent and substantial evidence, the Respondents would have also been guilty of the alleged violations of Section 489.129(1)(j), Florida Statutes, as charged. However, the Petitioner was not able to meet its burdens in this case.

    
    

23. The fact that the Petitioner was unable to meet its burdens does not reflect on the investigation process or the presentation of its case. The condominium association unintentionally thwarted the investigation process by failing to obtain an architect to determine the cause of the roof failure as suggested by the county. The Neoprene/Hypalon roof was covered over by a new, built-up roof which changed the roof design. Although this prevented a thorough review of the matter, it also prevented the Respondents from being able to clear up the allegations of the violations prior to final hearing.

24. The county's prior course of dealings with contractors and the fact that a new director of the Brevard County Department of Building and Construction did not give the Respondents any information beyond his verbal approval to proceed with the project also caused the usual safeguards which preserve evidence of competent or incompetent building practices to be destroyed prior to the final hearing in this case.

Based upon the foregoing, it is RECOMMENDED:

That all violations charged against the Respondents GOREE and COMES as set forth in the Administrative Complaint, Case No. 87-2009, and the Amended Administrative Complaint, Case No. 87-1719, should be DISMISSED.

DONE AND ENTERED this 13th day of May, 1988, at Tallahassee, Florida.

VERONICA E. DONNELLY, Hearing Officer Division of Administrative Hearings The Oakland Building

2009 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 13th day of May, 1988.

APPENDIX TO RECOMMENDED ORDER IN CASE NOS. 87-1719 AND 87-2009

Petitioner's proposed Findings of Fact are addressed as follows:

1. Included in H. O. #1.

2. Included in H. O. #2.

3. Included in H. O. #4.

4. Included in H. O. #5.

5. Included in H. O. #7.

6. Included in H. O. #10. Rejected in part as COMES and GOREE's version of the meeting with Murray Schmidt was

   rejected by the Petitioner and accepted by the hearing officer.

7. Accepted in part. The last sentence is rejected as it is conclusionary and was rebutted by GOREE and COMES.

8. Accepted. Included in H. O. #14.

9. Accepted as the testimony of Delores Hummel. Most of her testimony was rejected by the Hearing Officer as Ms.

   Hummel was not in a position to personally know most of the testimony she presented at hearing. The last four sentences are accepted and included in H. O. #14-16.

10. Accepted as the testimony of Roush and Ringdahl. However, little weight was given to their opinions as to the condition of the roof system as they were unfamiliar with the Neoprene/Hypalon system.

1. Accepted as the testimony of Matalune and Campbell. Campbell's testimony that the coating on the roof was not the

   same as GOREE's Exhibit #1 is rejected as other testimony revealed that the white coating powders and changes over time.

2. Accepted as Lahr's testimony. Irrelevant and incompetent to testify as to the quality of the application of the roofing process.

3. Accepted. Included in H. O. #17.

4. Accepted in part. Included in H. O. #14. The Petitioner's summarization of Comes' letter is rejected and the letter, within the four corners of the document, speaks for itself.

5. The Respondent GOREE was not impeached by his deposition. The findings are included in H. O. #8.

6. Included in H. O. #18.

7. Rejected. Speculative. Irrelevant. Not alleged in complaint..

8. Included in H. O. #19.

9. Rejected. Speculative. No facts in evidence to support that deck was bowed prior to application of the system.

Respondent COMES' proposed Findings of Fact are addressed as follows:

1. Included in H. O. #1.

2. Accepted.

3. Included in H. O. #6.

4. Included in H. O. #4.

5. Rejected. Irrelevant.

6. Included in H. O. #5.

7. Included in H. O. #7.

8. Included in H. O. #8 and H. O. #9.

9. Accepted. Portions included in H. O. #10, #11, #18.

10. Included in H. O. #11.

11. Included in H. O. #12, #13.

12. Included in H. O. #14. Accepted.

13. Accepted.

14. Accepted.

15. Included in H. O. #14, #15.

16. Accepted.

17. Accepted. Included in H. O. #16, #17.

18. Accepted.

19. Accepted.

COPIES FURNISHED:

David L. Swanson, Esquire Department of Professional

Regulation

130 North Monroe Street Tallahassee, Florida 32399-0750

Mr. Charles J. Goree 1605 Richard Road

Merritt Island, Florida 32952

J. Ransdell Keene, Esquire

400 Travis, Suite 201 Post Office Box 56

Shreveport, Louisiana 71161-0056

William O'Neil, General Counsel Department of Professional

Regulation

130 North Monroe Street Tallahassee, Florida 32399-0750

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

Jacksonville, Florida 32201

Docket for Case No: 87-001719

Orders for Case No: 87-001719