DEPARTMENT OF PROFESSIONAL ) REGULATION, CONSTRUCTION ) INDUSTRY LICENSING BOARD, )
vs. ) CASE NO. 89-4127
CHARLES J. ECKERT, )
Respondent. )
A hearing was held in this case in Bradenton, Florida on November 8, 1989, before Arnold H. Pollock, a Hearing Officer with the Division of Administrative Hearings.
For Petitioner: J. Craig Myrick, Esquire
For Respondent: Charles J. Eckert, pro se
The issue for consideration is whether Respondent's license as a registered roofing contractor in Florida should be disciplined because of the misconduct alleged in the Administrative Complaint filed herein.
On May 8, 1989, E. Ray Shope, by delegation from the Secretary, Department of Professional Regulation, filed an Administrative Complaint against the Respondent in this case, Charles J. Eckert, charging Mr. Eckert with misconduct or incompetence and failing to properly supervise a job site, in violation of Section 489.129(1), Florida Statutes. Respondent thereafter requested a formal hearing, and on July 31, 1989, the matter was forwarded to the Division of Administrative Hearings for appointment of a Hearing Officer. By Notice dated August 24, 1989, the undersigned set the case for hearing on November 8, 1989, at which time it was held as scheduled.
At the hearing, the Petitioner presented the testimony of James F. Gordon, the homeowner whose house was roofed under contract with the Respondent; Richard Beyer, a roofer hired by Respondent to correct deficiencies in the roofing job
in question; and Jack N. Hurlston, part time inspector of roofs for the Department. Petitioner also introduced Petitioners Exhibits 1 through 3. Respondent testified in his own behalf and introduced Respondent's Exhibit A.
No transcript was provided nor did either party submit Proposed Findings of Fact.
At all times pertinent to the issues contained herein, Respondent, Charles J. Eckert, was a registered roofing contractor in Florida. Petitioner, Department of Professional Regulation, (Department), and the Construction Industry Licensing Board, (CILB), were and are the state agencies responsible for the regulation of the construction industry in this state.
On August 7, 1987, James F. Gordon, an individual with a reported building and real estate business background, contracted with the Respondent to install the roof on the house he was building and which he had designed. Mr. Gordon chose the roofer himself rather than using the general contractor's roofer because that individual was not familiar with the type of tile to be installed. Respondent had installed a roof of this type tile on the condominium apartment in which Mr. Gordon was living at the time, and appeared to have done a good job, so Mr. Gordon chose him to do the house roof.
The contract was negotiated between Mr. Gordon and the Respondent and his partner who took the plans to study before submitting their proposal to install the tile and base which, upon acceptance, became the contract for the job. Mr. Gordon was to pay for the tile ordered by Respondent. The Respondent ordered 9400 square feet of tile plus caps which came to between $8500 and
$8800. The contract between Gordon and Respondent, for installation Of the tile and base, called for a payment of $9800.
The original agreement between the parties was executed in July, 1987. Work was to start about three months later, after the permit for house construction had been pulled, based on an estimate of how construction would progress. As the house was erected, Mr. Gordon would notify the Respondent of the progress so he could have some idea as to when his work was to begin.
The actual roof work began sometime in October, 1988. Respondent's men came timely and did the hot tar and felting during which time, Mr. Gordon often went up on the roof with the Respondent to see how things were going. The original plans called for Anderson skylights in the roof and Respondent's personnel did not want to use the flashings supplied with them. Mr. Gordon agreed to the change.
The tile was custom ordered for this job and took some time to arrive. When it did, it was installed by a subcontractor under arrangement with the Respondent. Respondent never came to inspect or supervise the work of the installers, who he was paying by the piece, after his last visit when the mopping of the tar and felt was completed. Mr. Gordon was there every day and never saw Respondent during the entire installation. Respondent admits that paying by the piece for work of this kind may not be the best way to do it.
The actual installation of the tile took approximately three weeks or more during which time the installers frequently complained about the way the roof was cut. The tile manufacturer sent a representative out to examine it. This individual indicated the roof was OK.
When the installation was complete, there were 16 yards of tile debris left on the ground around the house. When no effort was made by the roofers to clean it up, Mr. Gordon repeatedly called Respondent's office to complain, and it took approximately two weeks before anyone came out to pick it up. Even then, the debris was merely placed in one large pile in the front yard and neither Respondent nor his subcontractor ever came back to remove it. Mr. Gordon had it removed at his own expense. The contract between Mr. Gordon and Respondent did not specifically provide for debris removal and Respondent claims this work is generally accomplished by the general contractor. No evidence to contradict this claim was presented by Petitioner.
It was also noted that the installers mixed the colored cement used in the roofing in the garage and got it all over that area. No effort was made to clean it up before departure.
Other deficiencies in installation included uneven installation of tile on the West side of the house. The tiles ran zigzag in their rows. Colored cement was splashed on the soffits; the color of the caps was irregular due to improper mixing of oxide for the cement; and the cap tiles were raised. Several months after installation, holes were discovered under tiles which were lifting up, and there was a leak in the roof near a skylight.
Because he was dissatisfied with the roofing job he got, prior to closing, Mr. Gordon notified the bank financing the project that he was withholding $1,000 from the amount due the Respondent. He paid Respondent the balance. Because of personal problems unrelated to this matter, Mr. Gordon wad unable to take any further action for several months, during which time he heard nothing from the Respondent. He was, however, still dissatisfied with the roofing job and ultimately called Respondent to come fix a leak which had developed around a skylight. He received no response to that call and Respondent never showed up.
Somewhat later, Mr. Gordon received a letter from a collection agency demanding the thousand dollars he had withheld. Mr. Gordon responded with pictures of the roofing job done by the Respondent and didn't hear anything further about it from either the agency or Respondent.
Thereafter, Mr. Gordon filed a complaint with the Department and after that, Mr. Byer, hired by Respondent, came out to the Gordon house to fix the leak and to attempt to fix the discoloration. Mr. Byer removed the loose tiles and re-cemented the caps. Instead of replacing the cement, he painted with a substance which matched the color, but which will last only eight years.
The roof is now sound and water tight, but due to the holes in some tiles, the mismatching of colors, and the zigzag courses, it is, to Mr. Gordon, esthetically unsatisfactory. Mr. Gordon has called in another roofer who indicated that the existing problems cannot be fixed. To correct the problem would require reroofing.
Respondent's job was also considered unsatisfactory by Mr. Hurlston, the Department inspector who looked at the job in mid February, 1988. In his opinion, the work was sloppy, the tile has been "stretched", the lines are not straight, there are holes between the tiles, the "mud" around the roof ridge is not nesting properly, and some field tile are also raised and not nesting properly. Taken together, the workmanship is poor. It might be acceptable in a project home but not in a custom home as this is. In Mr. Hurlston's opinion,
the failure to continuously supervise and correct errors as they occurred shows indifference to the job and constitutes gross negligence. In his opinion, the defects in the finished job are directly attributable to a lack of supervision by the Respondent, and it is so found.
Respondent contends the job was done according to the installation specifications supplied by the manufacturer. He claims that the irregularity problem starts with the first three rows of tile and once they are down, the course is set. Correcting problems every couple of rows results in irregular lines and since every 5th line is nailed, if it is not in straight, it's too late to change without removing the whole roof. Assuming, arguendo, this is so, removal may well be the only appropriate course of action open if the installation is not right, and Respondent should have done it if necessary.
Mr. Eckert also claims that the loose tiles discovered by Mr. Hurlston were, for the most part, caused by people walking around on the roof. A 10% loose tile rate, as evidenced here, is considered acceptable by the manufacturer. Mr. Hurlston agrees and it is so found.
Respondent claims no knowledge of any problem with Mr. Gordon except for the fact that Gordon owes him $1,000. In light of Mr. Gordon's testimony that he called Respondent repeatedly to get him to come out, this is not likely. He has a policy that if a client owes him money, he won't correct any problems with the job until he is paid in full. Nonetheless, he sent Mr. Byer to make any corrections necessary in this case with the instructions to "do anything necessary to make him [Gordon] happy." Byer worked on the Gordon house for about three weeks during which time he replaced the V ridges by re-mortaring it and straightening crooked tiles.
As the work progressed, Mr. Gordon seemed happy and indicated the work looked better. At no time did Gordon tell Byer to hurry or to abandon the job. When it was complete, however, Gordon told Byer that though he liked what Byer had done, Respondent would either reimburse him or he'd have his license.
In light of his relationship with Gordon, the fact that Gordon has indicated he wants the roof replaced, and Gordon's alleged comment that he'd either be reimbursed or have Respondent's license, Respondent does not believe anything he could do short of replacing the roof, something he will not do, would satisfy Gordon. Other than sending Mr. Byer out to make corrections, he did nothing. It is obvious, however, that the only way to correct the problem of appearance is to remove the tile and start again. Respondent is unwilling to do this.
By Final Order dated February 4, 1987, the Construction Industry Licensing Board imposed a fine of 1,000.00 on Respondent for gross negligence and incompetence demonstrated on a roofing job accomplished by him and his firm in 1980 and 1981.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the parties and the subject matter in this case. Section 120.57(1), Florida Statutes.
Section 489.129 (1), Florida Statutes, authorizes the CILB to discipline the certificate or registration of a contractor if the contractor is found guilty of:
(j) Failure in any material respect to comply with the provisions of [the] act.
and
... fraud or deceit or of gross negligence, incompetency, or misconduct in the practice of contracting.
Here, Petitioner claims that by failing to provide a reasonably watertight structure, by improperly seating tiles, by stretching tile placement, by leaving visible gaps and holes in the roof structure, and by failing to properly supervise the job site, Respondent is in violation of the above cited subsections, as well as of Section 489.119 and Section 489.105(4), Florida Statutes., both of which deal with the matter of qualifying agents.
In order to prevail herein, Petitioner must establish its allegations of Respondent's guilt as alleged by clear and convincing evidence. Ferris v. Turlington, 510 So.2d 292, 295 (Fla. 1987).
The evidence presented by the Petitioner clearly demonstrates that the tile portion of the roof on Mr. Gordon's house was installed in a manner unacceptable for a house of this quality. However, even Petitioner's expert, Mr. Hurlston, admitted the roof was sound and might be acceptable in a house of lesser value. In the contract between Mr. Gordon and Respondent, there was no guarantee that the result would be esthetically satisfactory, only that the work would be done according to specification, and the evidence demonstrates that it was.
There is also little doubt, however, that had Respondent properly supervised the installation of the tile, a task which he subcontracted out on a piecework basis, the appearance of the finished roof would have been better. It is also clear that Respondent's failure to properly supervise was the major contributing factor in the unacceptable appearance of the final product. His lack of supervision here is sufficiently egregious to constitute misconduct or gross negligence and his failure to stand behind his work and make corrections until paid is in aggravation of the violation.
In considering an appropriate action in light of the established violation, Respondent's prior disciplinary action must be considered. In that case, some three to five years ago, Respondent was disciplined for his gross negligence and incompetence in installing tile roofs. A fine was imposed. It is unfortunate that Respondent has again been shown to be grossly negligent in the performance of his work. It is obvious that more stringent supervision of his performance is required.
The recommendations, infra, are consistent with the disciplinary guidelines contained in Section 21E-17.001(19)(a) and (b), (normal ranges); Section 21E-17.002 (1) and (2), (aggravation and mitigation); and Section 21E- 17.007, (probation).
Based on the foregoing Findings of Fact and conclusions of Law, it is, therefore:
RECOMMENDED that the Respondent, Charles J. Eckert's registration as a roofer be suspended for three months but that the suspension not be implemented and he be placed on probation for a period of one year under such terms and conditions as the Board may prescribe; that he pay an administrative fine of
$1,000.00, and that he be reprimanded.
RECOMMENDED this 29th day of December, 1989, in Tallahassee, Florida.
ARNOLD H. POLLOCK
Filed with the Clerk of the Division of Administrative Hearings this 29th day of December, 1989.
J. Craig Myrick, Esquire Department of Professional
Charles J. Eckert
Kenneth E. Easley General Counsel DPR
