Findings Of Fact At all times material, Respondent, Stephen M. Oliver, was both a registered roofing contractor, holding license RC 0042579, and a certified building contractor, holding license CB 025099. Both licenses were issued by the Florida Construction Industry Licensing Board. On or about July 3, 1985, Respondent entered into a contract with Betty Davis to remodel her house in Bradenton. The total contract price was $3,600. Work on the Davis job commenced on Wednesday, July 3, 1985, and proceeded on July 4 and 5 and July 9 through 12, 1985, before Respondent applied for and obtained a Manatee County building permit for the job. This is a violation of local law. Respondent was not attempting to avoid obtaining a permit for the work. He was just busy and did not timely get one. The building permit obtained does not reflect that the permit covered installation of an oven range hood. Although part of the contract, that work was not included on Respondent's application for a building permit. No separate mechanical permit was obtained for this work. Respondent willfully and deliberately installed the oven range hood on the Davis job without obtaining the required Manatee County mechanical permit. At all times material, the Board of County Commissioners of Manatee County had adopted the Standard Building Code and Standard Mechanical Code, with accumulated supplements, to govern construction in Manatee County. Under the applicable code provisions, installation of an oven range hood is mechanical work for which a mechanical license and mechanical permit are required. Respondent is not licensed or qualified by the State or by Manatee County to do mechanical work. Respondent willfully and deliberately did the mechanical work on the Davis job, i.e., installation of the oven range hood, without being licensed or qualified to do it and without a mechanical permit. Respondent's work on the Davis job was incompetent and grossly negligent in that some electrical wires were covered over by vinyl siding that Respondent installed without first being covered with protective coating to prevent safety hazards, in violation of the applicable building code. Otherwise, Respondent's workmanship was not the best, but it was not incompetent or grossly negligent. On or about March 22, 1985, Respondent entered into a settlement stipulation in which Respondent admitted to charges of not getting the required building permit for an August 25, 1983, contract until eleven months after work began. Respondent was fined $500 for that offense. Shortly before the final hearing in this case, Respondent entered into a settlement stipulation in which he admitted to charges of: (1) performing a February 18, 1985, contract without obtaining the required permit and inspections; (2) performing a March 6, 1985, contract by October 1, 1985, without having all necessary inspections done; (3) performing a January 22, 1985, contract without having all necessary building inspections performed, without correcting all violations cited during inspections, and falsely swearing by affidavit that the masonry contractor had been paid; and (4) not having the necessary final inspection done after performance of a March 16, 1985, contract. For these offenses, Respondent was fined an additional $1000 and placed on probation through February, 1988.
Recommendation Based on the foregoing Findings Of Fact and Conclusions Of Law, it is recommended that the Construction Industry Licensing Board enter a final order fining Respondent, Stephen M. Oliver, $1500.00. RECOMMENDED this 26th day of March, 1987 in Tallahassee, Florida. J. LAWRENCE JOHNSTON 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 26th day of March, 1987. APPENDIX TO RECOMMENDED ORDER, CASE NO. 86-5035 Respondent filed no proposed findings of fact. Petitioner's proposed findings of fact are accepted and incorporated to the extent necessary. This ruling complies with Section 120.59(2), Florida Statutes (1985). COPIES FURNISHED: G. Vincent Soto, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Fl 32399-0750 Stephen M. Oliver 2423 Manatee Avenue West Bradenton, Fl 33505 Fred Seely Executive Director Construction Industry Licensing Board Post Office Box 2 Jacksonville, Fl 32201 Van Poole Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Fl 32399-0750 Joseph A. Sole, Esquire General Counsel Department of Professional Regulation 130 North Monroe Street Tallahassee, Fl 32399-0750
Findings Of Fact The parties stipulated to the following matters which are incorporated in and made a part of the Findings of Fact: The Respondent, Raymon Johnson, holds residential contractor's certificate Number CR C--4461. The Respondent entered into a written agreement with Gary J. Stearman and Michelle Talisman to construct a residence at 2911 NE 9th Street in Gainesville, Florida, for $32,000. The Respondent represented to the owners that the house would have a one-year warranty. On or about December 12, 1979, the Respondent was notified by Al Davis of the City of Gainesville that there were code violations involved with the property at 2911 NE 9th Street, and that based upon these violations a certificate of occupancy could not be issued. On or about June 5, 1980, the Board of Adjustment denied Respondent's appeal of the code violations and instructed Davis to provide Respondent with a list of all the code violations to be corrected before a certificate of occupancy could be issued. As of June 12, 1980, Respondent had not corrected all of the code violations. Johnson was initially advised of three code violations. These were improper wood siding, improperly attached roofing shingles, and improper holes and coverage of holes in the house's foundation. Johnson took steps to properly cover the holes in the foundation, had the subcontractor re-nail the roofing shingles, and controverted the allegation that the siding was improper. Subsequently, Davis refused to approve the roof on the basis that in raising the shingles to add the fourth nail the subcontractor had broken the seal on the self-adhering shingles, irreparably damaging the shingles. Eventually, the roof was completely replaced, although the roofing contractor could not fix the exact date. This was done without cost to the home owners. With regard to the siding, Davis based the determination that the wood was not suitable for siding on the determination that its moisture content exceeded the code requirements, which he in turn based upon the fact that the rough-sawn siding was not grade stamped. Lumber is grade stamped by lumber mills. The right to grade stamp is granted by independent manufacturer's associations to mills which cut and dry lumber to the specifications of such associations. Careful review of the Gainesville Building Code does not reveal any requirement that rough-sawn wood siding which is not structural or load-bearing to be grade stamped. See Section 1700.3 (page 17-2) and Section 1700.4 (page 17-4), Petitioner's Exhibit 3. The code does provide that lumber two inches thick or less will not contain more than 19 percent moisture at the time of permanent incorporation in a building. See Section 1700 6 (page 17-2), Petitioner's Exhibit 3. Johnson initially took samples of the siding from the four sides of the house to a lumber mill which graded lumber and had equipment for establishing moisture content. The results of the test of these samples were reported in a letter from Donald Carswell dated December 22, 1979. See Petitioner's Exhibit 5. Carswell testified at the hearing that he used the same test on Johnson's samples that was used on the lumber which the mill grade stamps. The samples from the house contained from 7 to 14 percent moisture content. Davis refused to accept this letter as proof that the wood was permissible for use as siding because the test showed the current moisture content and not the content as of the date it was installed on the house. Johnson then provided Davis with a letter dated January 21, 1980, from James Griffes, whose mill had cut the wood siding in question. See Respondent's Exhibit 3. Griffes also testified at the hearing that the lumber in question was rough-sawn heart yellow pine and had been stacked for four months prior to sale to Johnson. In Griffes' opinion the lumber was at least of utility grade. He testified that the lumber was dry enough to meet the standards in his opinion. Davis refused to consider the letter as proof of the moisture content because the lumber was not grade stamped. Rough-sawn lumber is not grade stamped, although it is graded, because the stamping operation is a part of the planing procedure. Johnson advised Davis that he was aware of rough-sawn lumber from Griffes' mill having been used in Gainesville. Davis indicated that when it had been used it was under circumstances in which an architect had approved the plans and accepted responsibility for its use. Johnson then provided Davis with a letter, Respondent's Exhibit 2, from H. J. Kelley, Professional Engineer, dated January 22, 1980. In this letter Kelley stated, based upon the two earlier letters, that the siding met the standards of the Southern Standard Building Code, Section 1706.7, for its intended use. Davis refused to accept this as proof of the siding's appropriateness. Johnson appealed Davis' determination to the city's Board of Appeals. This appeals hearing was held June 5, 1980. In April, 1980, the home owners obtained legal counsel, and he wrote Johnson a letter dated April 23, 1980, Petitioner's Exhibit 3. Various meetings were held between the parties during this period. One of these meetings resulted in preparation of a written agreement by the home owners' counsel, Petitioner's Exhibit 4. This agreement calls for replacement of the siding and roof as well as items not found by Davis to be in violation of the code. Johnson did not execute this written agreement. On June 5, 1980, the Board of Appeals held its hearing on Johnson's appeal of Davis' determinations. This appeal apparently limited to interpretation of Sections 1700.3, 1700.5, 1702.8.1 and 1302.5 of the Southern Standard Building Code. While all of these sections were not introduced at hearing, the minutes of that meeting, Petitioner's Exhibit 1, reflect that the Board of Appeals took up matters beyond those raised on appeal. This resulted in the Board of Appeals' direction to Davis to prepare a letter to Johnson setting out all violations of code which would have to be corrected in order for Johnson to obtain a certificate of occupancy The Board of Appeals took notice that it lacked authority to direct that the matters be corrected within a specific time. See Petitioner's Exhibit 1 (page 35). Prior to the June 5, 1980, meeting, the home owners had advised Johnson not to come on the premises or to do further work on the house. They had also commenced a suit against Johnson's contractor's bond. Johnson's attorney, Costello, wrote a letter to the home owners' attorney, Michael Davis, on August 13, 1980, which outlines the events subsequent to the Board of Appeals hearing. See Respondent's Exhibit 5. By letter of June 19, 1980, Costello advised Michael Davis that Johnson agreed to perform all repairs or corrections to comply with the code requirements on the condition that the home owners grant him access to the project and abate their suit. See Respondent's Exhibit 4. Michael Davis wrote Costello on June 30, 1980, advising that the home owners would not allow Johnson to complete the repairs. Meanwhile, the home owners continued their suit against Johnson's bond, in which they eventually received the monies necessary to replace the siding using another contractor.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, the Hearing Officer recommends that no action be taken against the Respondent. DONE AND ORDERED in Tallahassee, Leon County, Florida, this 27th day of October, 1981. STEPHEN F. DEAN Hearing Officer Division of Administrative Hearings Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 27th day of October, 1981. COPIES FURNISHED: Charles T. Tunnicliff, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Mr. Raymon E. Johnson Post Office Box 13981 Gainesville, FL 32604 Samuel Shorstein, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301
The Issue The issues in the case are whether Respondent violated Subsections 489.126(2), 489.129(1)(i), 489.129(1)(j), 489.129(1)(g)2., and 489.129(1)(m), Florida Statutes (2004- 2005),1 and, if so, what discipline should be imposed.
Findings Of Fact At all times material to this proceeding, Ms. Eichelberger was a certified contractor, having been issued license number CRC 1326804 by the Construction Industry Licensing Board (Board), and was certified with the Board as doing business as American Pride Building Company, LLC (American Pride). At all times material to this proceeding, Ms. Eichelberger was the primary qualifying agent for American Pride. On February 20, 2005, Duane Stanford (Mr. Stanford) entered into a contract with American Pride to construct a house on property owned by Mr. Stanford at 36 Southwest 13th Street, Cape Coral, Florida. The contract price for the project was $206,300.00. On February 20, 2005, Mr. Stanford paid American Pride $30,000.00 or approximately 14 percent of the contract price as the initial payment on the project. The contract did not provide that American Pride could retain the $30,000.00 if no work was performed on the project. From February 2005 to August 2005, American Pride performed no work on the project. On September 16, 2005, American Pride applied for a building permit with the City of Cape Coral Building Department. The permit application was approved, but American Pride never picked up the permit from the building department. Mr. Stanford received a letter dated November 8, 2005, from American Pride advising Mr. Stanford that there had been a dramatic increase in the costs of labor and materials and that they were passing the increase in costs to Mr. Stanford in the form of a ten percent increase in the contract price. On December 20, 2005, Mr. Stanford and American Pride entered into an agreement in which Mr. Stanford agreed to pay an additional $20,630.00 for the increase in labor and material costs. American Pride agreed to not impose any additional increases in the contract price, and Mr. Stanford agreed to pay the ten percent increase when the certificate of occupancy was issued. After December 20, 2005, American Pride failed to commence work on the project and failed to return the $30,000.00 that Mr. Stanford paid on February 20, 2005. Mr. Stanford terminated the contract in May 2006. From the time Mr. Stanford entered into the contract until the time he terminated the contract, Mr. Stanford did not prevent American Pride from commencing and completing the project. In addition to the $30,000.00 initial payment, Mr. Stanford has incurred in costs in the amount of $5,085.15 for construction loan costs and $2,500.00 for attorney's fees relating to the project. The total amount of investigative costs incurred by Petitioner in prosecuting this case, excluding costs associated with attorney's fees, was $105.50.2 On October 12, 2005, a Final Order Approving Settlement Stipulation was entered in the case of Department of Business and Professional Regulation v. Alexandria Eichelberger, Case No. 2004040305. As part of the stipulated settlement agreement, Ms. Eichelberger agreed to pay an administrative fine of $1,500.00; pay the investigative costs of $423.09; complete seven hours of continuing education; and make restitution to Harry Dorsey in the amount of $3,493.00. The settlement agreement was in settlement of an administrative complaint alleging that Ms. Eichelberger had violated Subsections 489.129(1)(g)1., 489.129(1)(m), and 489.129(1)(l), Florida Statutes. By letter dated March 26, 2007, Ms. Eichelberger surrendered her license number CRC 1326804, effective April 2, 2007.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered finding that Alexandria Eichelberger violated Subsections 489.126(2), 489.129(1)(g)2., 489.129(1)(i), 489.129(1)(j), and 489.129(1)(m), Florida Statutes; revoking her license; imposing a fine of $1,500.00 each for the violations contained in Counts I, II, and III of the Administrative Complaint for a total fine of $4,500.00; requiring her to make restitution to Duane Stanford in the amount of $37,585.15 for consumer harm suffered; and requiring her to pay the investigative costs of $105.50. DONE AND ENTERED this 20th day of April, 2007, in Tallahassee, Leon County, Florida. S SUSAN B. HARRELL 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 20th day of April, 2007.
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 =================================================================
