Findings Of Fact At all times material hereto, Respondent Robert F. Copenhaver was holder of a registered general contractor's license number RG 0013968 issued by the State of Florida. At all times material hereto, Respondent qualified Southwest Building and Development Corporation with the Construction Industry Licensing Board. See Petitioner's Exhibit #1. At all times material herein, neither Respondent nor Southwest Roofing and Waterproofing, Inc., were registered or certified as a roofing contractor with the Board. See Petitioner's Exhibit #1. At all times material herein, Respondent was the holder of a Class C building contractor's license and a specialty limited roof-coating and spraying license, both issued by Sarasota County. See Transcript of Proceedings, page Said license was limited to work done to cosmetically improve a roof. Any work done to repair leaks required a standard roofing license. Respondent and Don Cogswell incorporated Southwest Roofing and Waterproofing, Inc. (SRWI), under the laws of the State of Florida on January 10, 1980. See Petitioner's Exhibit #5. All work done by SRWI was done under the Sarasota special roofing contractor qualification. Respondent was president of the corporation until December 15, 1980, at which time he resigned and transferred all his stock to Cogswell. See Petitioner's Exhibit #6. On February 14, 1980, SRWI contracted with A. T. Esslinger to completely waterproof a roof at 816 Idlewild Way, Sarasota, Florida. See Petitioner's Exhibit #2. The only warranty referenced in the contract was a separate standard warranty to be delivered at the time of final payment. See Petitioner's Exhibit #3A. Respondent gave the Esslingers a letter (Petitioner's Exhibit #3B) in which SRWI guaranteed to stop the leaks in their roof. This letter referenced SRWI's standard warranty. To waterproof the roof, gravel was removed from the existing roof and a cement-like surface applied to the roof. On June 4, 1980, SRWI contracted with Earl Mowry to waterproof a roof at 5339 Gulf Drive, Holmes Beach, Bradenton, Florida, in accordance with specifications originally attached to the contract but not introduced at hearing. See Petitioner's Exhibit #4. To waterproof the roof, a concrete material was applied to the existing roof. On June 25, 1980, SRWI contracted with Maynard Howe to waterproof a roof over the family room in accordance with attached specifications at 2271 Mill Terrace, Sarasota, Florida. The only warranty given was the separate standard warranty to be delivered at the time of final payment. See Petitioner's Exhibits #7A and #7B. To waterproof the roof, a concrete material was applied to the existing roof. All of these contracts provided that SRWI would apply MARKEM Elastic Waterproofing material so that said roof areas were completely covered and free of all leaks. See Petitioner's Exhibits #9A, #9B and #9C for data concerning MARKEM. After the work was completed, each of the roofs in question leaked. When Respondent was contacted after he had left SRWI, he advised each of the persons that he had left the company and could not assist them. Respondent referred them back to SRWI, MARKEM or the company who became the MARKEM distributors in the area. None of the persons obtained relief from SRWI, the Respondent, MARKEM or MARKEM's new distributor. See Transcript of proceedings, pages 16, 25, 34. Howe sued SRWI and served Respondent with suit papers. In response, Respondent sent Howe a notarized document (Petitioner's Exhibit #6), which states that as of December 15, 1980, Respondent had resigned as president of SRWI and had transferred all of his stock to Don Cogswell. On October 14, 1980, SRWI contracted with Catherine Gilligan to waterproof her roof at 4819 Graywood Lane Meadows, Sarasota, Florida. See Petitioner's Exhibit #12. Gilligan paid SRWI $174 as partial payment on this contract. SRWI never did any work pursuant to the contract. Gilligan called SRWI, but to her knowledge never spoke to the Respondent concerning when SRWI was to start the job. Gilligan waited for one month, then called SRWI every day for three weeks. In the fourth week, SRWI's telephone was disconnected. This date reasonably coincides with the date Respondent resigned, December 15, 1980. No evidence was received of disciplinary action against SRWI or the Respondent by Sarasota County.
Recommendation Having found Respondent Robert W. Copenhaver guilty of violating Section 489.129(1)(j), Florida Statutes, it is recommended that the Construction Industry Licensing Board suspend the registration of Respondent as a general contractor for one year. DONE and RECOMMENDED this 21st day of December, 1982, in Tallahassee, Leon County, Florida. STEPHEN F. DEAN, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 21st day of December, 1982. COPIES FURNISHED: Stephanie A. Daniel, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Mr. Robert W. Copenhaver 2409 34th Street, West Bradenton, Florida 33505 Samuel R. Shorstein, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 K. Linnan, Executive Director Construction Industry Licensing Board Post Office Box 2 Jacksonville, Florida 32201 =================================================================
Findings Of Fact In February, 1975 Dr. and Mrs. Jacobs entered into a contract with Additions Unlimited (AU) to construct an addition to theirs residence in Miami Beach. Lester Cunningham, Jr. is a licensed general contractor and the qualifying contractor of AU. The contract provided that the work be done in accordance with plans and specifications which were admitted into evidence as Exhibit 2. These plans provided, inter alia, that a wood decorative grill of 2" x 8" pressure treated lumber be installed over a window, or windows; that a cedar soffitt be used on the south wall of the addition; that exposed wood and wood in contact with masonry be pressure treated; and that walls of the new room match existing walls which were plaster; and that the floor of the addition be the same level as adjoining floor. During construction the contractor installed 2 x 4 decorative screens in lieu of the 2 x 8 called for in the plans and specifications; a curved stucco soffitt was installed in lieu of the cedar soffitt; the floor of the addition was some 3/4" below the floor of the adjoining room; and a material with trade name of Woncote was used over gypsum wallboard in lieu of plaster that was on the walls of the original house. After disagreement arose between the two parties the work was stopped in July, 1975. Thereafter the building permit was suspended by the City of Miami Beach because the work was not done in accordance with the plans and specifications. During construction AU provided releases of liens for materials each time a draw was paid by the owner. Following the installation of a sliding glass door the supplier of the door, Floradale, Inc., called Jacobs for payment of the bill and filed notice of intent to file lien for this material. The bill for this door was subsequently paid by the contractor. Some conflict of testimony was presented with regard to the installation of Woncote veneer plaster in lieu of plaster. The former is 1/16" thick and is installed over drywalls as a decorative finish similar to paint. It has the outward appearance of plaster and is applied similar to plaster except for the 1/16" thickness as compared to 1/2" thickness for plaster. Had the building inspector conducted a lath inspection he would not have approved the substitute of Woncote as the plans existed. A professional engineer inspected the work at the request of the owner and he noted the discrepancies listed above with respect to the substitution of plaster for cedar soffitt, 2 x 4's in lieu of 2 x 8's, use of commercial grade lumber in lieu of pressure treated lumber as required by plans and specifications, and the discrepancy in the level of the floor in the addition. One witness with extensive experience with Woncote considers this material to be comparable to plaster with the exception for use in areas requiring the fire retardant qualities of plaster (which was not here involved) and offered his expert opinion that the installation of Woncote was in accordance with the plans and specification. However, I find the preponderance of the evidence to be that the use of Woncote in lieu of plaster was not in compliance with the plans and specifications. Respondent contended that the changes from 2 x 8 to 2 x 4 lumber was authorized by the owner but that his brother neglected to get the owners to initial the change on the plans as required by company policy. In view of the denial of the authorization by the owners this explanation is not acceptable. Respondent further contends that the owners also authorized the use of stucco soffitt, which matched the rest of the house, but this too was disputed by the owners. No dispute exists with respect to the floor of the addition being lower than the floor of the adjoining room. When pouring this floor the subcontractor failed to fully consider the existing sill from which a sliding door was removed after the new floor had been poured. Respondent offered to correct this defect by adding a leveling compound which is manufactured by Sacrete. He was not permitted to do so by the owners who had the correction made by another contractor. Respondent contended that commercial grade lumber was used in areas not in contact with masonry and thereafter treated to comply with the building code because this lumber was superior to pressure treated and would take stain better than would the pressure treated lumber. With respect to the allegations that Respondent diverted funds supplied by Jacobs to another project, this was flatly denied by Respondent and no evidence of such diversion was offered.
The Issue Whether Respondent, who is licensed as a Plans Examiner, a Building Inspector, and a Building Code Administrator, committed the offenses alleged in the three-count Administrative Complaint and, if so, the penalties if any that should be imposed.
Findings Of Fact Petitioner is the agency of the State of Florida with the responsibility to regulate Building Code Administrators and Inspectors pursuant to Section 20.165, Chapter 455, and Part XII of Chapter 468, Florida Statutes. At all times relevant to this proceeding, Respondent held licenses as a Standard Plans Examiner in Building and Mechanical; a Standard Inspector in Building and Mechanical; and a Building Code Administrator. Section 468.603(1), Florida Statutes, provides the following definitions relevant to this proceeding: Building code administrator" or "building official" means any of those employees of municipal or county governments with building construction regulation responsibilities who are charged with the responsibility for direct regulatory administration or supervision of plan review, enforcement, or inspection of building construction, erection, repair, addition, remodeling, demolition, or alteration projects that require permitting indicating compliance with building, plumbing, mechanical, electrical, gas, fire prevention, energy, accessibility, and other construction codes as required by state law or municipal or county ordinance. This term is synonymous with "building official" as used in the administrative chapter of the Standard Building Code and the South Florida Building Code. . . . Section 468.603(2), Florida Statutes, provides the following definition relevant to this proceeding: (2) "Building code inspector" means any of those employees of local governments or state agencies with building construction regulation responsibilities who themselves conduct inspections of building construction, erection, repair, addition, or alteration projects that require permitting indicating compliance with building, plumbing, mechanical, electrical, gas, fire prevention, energy, accessibility, and other construction codes as required by state law or municipal or county ordinance. Section 468.603(6), Florida Statutes, provides the following definitions relevant to this proceeding: "Categories of building code inspectors" include the following: "Building inspector" means a person who is qualified to inspect and determine that buildings and structures are constructed in accordance with the provisions of the governing building codes and state accessibility laws. * * * (e) "Mechanical inspector" means a person who is qualified to inspect and determine that the mechanical installations and systems for buildings and structures are in compliance with the provisions of the governing mechanical code. Section 468.603(7), Florida Statutes, provides the following definitions relevant to this proceeding: "Plans examiner" means a person who is qualified to determine that plans submitted for purposes of obtaining building and other permits comply with the applicable building, plumbing, mechanical, electrical, gas, fire prevention, energy, accessibility, and other applicable construction codes. Categories of plans examiners include: (a) Building plans examiner. * * * (c) Mechanical plans examiner. Section 468.603(7), Florida Statutes, provides the following definitions relevant to this proceeding: "Building code enforcement official" or "enforcement official" means a licensed building code administrator, building code inspector, or plans examiner. Ramon Melendez, doing business as R.E.M. Roofing, Inc., was not licensed as a construction contractor in Florida at any time relevant to this proceeding. Mr. Melendez was not individually licensed as a construction contractor in Florida at any time relevant to this proceeding. R.E.M. Roofing, Inc., was not qualified as a construction business by any certified or registered contractor in Florida at any time relevant to this proceeding. On or about March 20, 1998, Mr. Melendez, doing business as R.E.M. Roofing, Inc., contracted with Pedro Camacho to re-roof the residence located at 3961 N.W. 170th Street, Miami, Florida, for the sum of $3,000. Mr. Camacho paid Mr. Melendez the agreed sum in cash based on the contract dated March 20, 1998. On or about June 3, 1998, Mr. Melendez, doing business as R.E.M. Roofing, Inc., contracted with Santos Valentin to re- roof the residence located at 4412 N.W. 185th Street, Opa Locka, Florida, for the sum of $2,800. Mr. Valentin paid R.E.M. Roofing, Inc. the sum of $1,400 on June 8, 1998. Mr. Valentin paid Mr. Melendez the additional sum of $800 on June 10, 1998. Both payments, which were by check, were for the roofing work described in the contract dated June 3, 1998. On April 6, 1998, Respondent applied for and obtained a permit for the Camacho roofing work. This permit application was submitted to the Metropolitan Dade County Department of Planning Development and Regulation. Respondent signed the permit application as “the contractor” and inserted his contractor license number and social security number on the application. The application submitted by Respondent on April 6, 1998, was a fraudulent sham. At no time was Respondent the contractor for the Camacho roofing work. Respondent’s action in obtaining the building permit aided and abetted an unlicensed contractor to engage in contracting. On June 8, 1998, Respondent applied for and obtained a permit for the Valentin roofing work. This permit application was submitted to the Metropolitan Dade County Department of Planning Development and Regulation. Respondent signed the permit application as “the contractor” and inserted his contractor license number and social security number on the application. The application submitted by Respondent on June 8, 1998, was a fraudulent sham. At no time was Respondent the contractor for the Valentin roofing work. Respondent’s action in obtaining the building permit aided and abetted an unlicensed contractor to engage in contracting. Miami-Dade County Compliance Investigator Daniel Vuelta filed criminal charges against Respondent in two separate criminal cases. One case was for his involvement in the Camacho roofing project and the other was for his involvement in the Valentin roofing projects. These cases were brought in Miami- Dade County Court and assigned case numbers M99-57926 and M99- 57931. In each case, Respondent was charged with one count of Unlawful Application for Building Permit and one count of Aiding and Abetting an Unlicensed Contractor. All charges were first- degree misdemeanors. On February 22, 2001, Respondent entered into a plea agreement to resolve those criminal charges. Respondent entered a plea of guilty to each of the two counts in Case M99-57931, and he was subsequently adjudicated guilty of each count. As part of the plea agreement, the State agreed to nolle pross Case M99-57926. The crimes to which Respondent entered a guilty plea involved fraudulent building permits and, consequently, were directly related to building code enforcement. Petitioner’s investigative costs for this case, excluding costs associated with any attorney’s time, were $427.29.
Recommendation Based on the foregoing findings of fact and conclusions of Law, it is RECOMMENDED that Petitioner enter a final order finding Respondent guilty of the offenses alleged in Counts I, II, and III. It is further RECOMMENDED that the final order revoke Respondent’s licensure and impose an administrative fine against him in the amount of $3,000. It is further RECOMMENDED that Petitioner order Respondent to pay its investigative costs, excluding costs associated with any attorney’s time, in the amount of $427.29. DONE AND ENTERED this 7th day of April, 2005, in Tallahassee, Leon County, Florida. S CLAUDE B. ARRINGTON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 7th day of April, 2005.
