The Issue At issue in this proceeding is whether Respondent committed the offenses set forth in the Administrative Complaint and, if so, what penalty should be imposed.
Findings Of Fact Preliminary matters At all times material hereto, Respondent, Juan Rodriguez, was licensed by Petitioner, Department of Business and Professional Regulation, Construction Industry Licensing Board (Department), as a certified general contractor, having been issued license number CG C005171. Respondent was licensed as an individual and not as the qualifying agent of any corporation or other business organization. At all times material hereto, Henry Pena was the sole officer and director of U.S.A. Henry Roofing Corp., a Florida corporation. Neither Henry Pena nor U.S.A. Henry Roofing Corp. (hereinafter jointly referred to as "Pena"), were registered, certified, or otherwise qualified under the provisions of Chapter 489, Florida Statutes, to engage in contracting in the State of Florida. Respondent was clearly aware of Pena's lack of licensure.1 The Zapata job Pertinent to this case, Oscar and Consuelo Zapata owned a one-story commercial building located at 59 Beacom Boulevard, Miami, Florida. On August 1, 1996,2 Mr. Pena, on behalf of U.S.A. Henry Roofing Corp., and Mr. Zapata entered into an agreement whereby U.S.A. Henry Roofing Corp. would replace the roof on the building in exchange for an agreed price of $18,200. A first payment of $8,000 was to be paid after the first inspection, and the balance of $10,200 was to be paid following the final inspection. Later in the month of August, Mr. Pena presented a building and zoning permit application, as well as a request for permit, to Mr. Zapata (as owner of the property) for signature. (Petitioner's Exhibit 8.) Following Mr. Zapata's signing, Mr. Pena delivered the forms to Respondent who signed as the contractor. Thereafter, on or about September 3, 1996, Respondent submitted the forms to the City of Miami to obtain a building permit for the re-roofing job. Respondent was not then, nor was he ever, under contract to make improvements to the Zapata property, and his sole involvement was to obtain a permit so Pena could proceed with the job. The permit was issued on or about September 5, 1996.3 On September 17, 1996, Pena began work on the roof, and ceased work the same day when the roof collapsed.4 With the discovery that Pena was not licensed or insured, Mr. Zapata ultimately contracted with another company (that was licensed) to re-roof the building for $16,000. That contract was duly fulfilled, and the re-roofing of the Zapata building was accomplished (notwithstanding the roof collapse) without financial loss to the Zapatas.5 Respondent's lapse of insurance coverage Respondent's liability and property damage insurance policy was terminated June 25, 1996, and was not reinstated until September 19, 1996. Respondent does not dispute the lapse in insurance coverage. (Petitioner's Exhibits 6 and 10, and Transcript, at pages 76-77, and 80-81.) The costs of investigation and prosecution At hearing, the Department offered proof, without objection, that its costs of investigation and prosecution, excluding costs associated with any attorney's time, totalled $306.09, as of January 27, 1999. (Petitioner's Exhibit 7.) Previous disciplinary action On January 18, 1996, the Department entered a final order which found the Respondent guilty of the violations set forth in a two-count Administrative Complaint issued March 25, 1993. (Petitioner's Exhibit 1.) In that complaint, the Department charged (in Count I) that Respondent violated the provisions of Subsection 489.129(1)(e), Florida Statutes, "by performing any act which assists a person or entity in engaging in the prohibited uncertified and unregistered practice of contracting, if the cerfificateholder or registrant knows or has reasonable grounds to know that the person or entity was uncertified and unregistered," and (in Count II) that Respondent violated the provisions of Subsection 489.129(1)(m), Florida Statutes, "by being found guilty of fraud, deceit, or of gross negligence, incompetency, or misconduct in the practice of contracting." Such charges were premised on a renovation contract Respondent held wherein he "subcontracted Nelson Echeverria [who was not a state licensed electrical contractor] to perform electrical work at customer's home for approximately $4,500.00." The final order found Respondent guilty of the charges, and imposed an administrative fine of $1,500 and costs of $1,433.03, to be paid within 30 days. On March 8, 1996, Respondent's license was suspended for failure to satisfy the penalty imposed by the final order; however, the penalty was then apparently satisfied and on June 19, 1996, the suspension was lifted and Respondent's license was reinstated.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered finding Respondent guilty of the violations alleged in Counts I through III of the Administrative Complaint and imposing, as a penalty for such violations, an administrative fine in the sum of $5,000; assessing costs of investigation and prosecution in the sum of $306.09; and, suspending Respondent's licensure for a period of one year, followed by a two-year term of probation subject to such reasonable terms and conditions as the Construction Industry Licensing Board may impose. DONE AND ENTERED this 12th day of May, 1999, in Tallahassee, Leon County, Florida. WILLIAM J. KENDRICK 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 12th day of May, 1999.
The Issue The issues are based upon an administrative complaint brought by the State of Florida, Department of Professional Regulation against Phillip E. Sheffield, Respondent. In particular, Respondent is said to have violated the building code of the City of Jacksonville, Florida by failing to obtain a building permit before commencing construction work related to a roofing project and building the roof to a slope that was contrary to that local building code. For violations of the City of Jacksonville building code, Respondent is said to have violated Section 489.129(1)(d), Florida Statutes, by willful or deliberate violation and disregard for the applicable building code of the municipality. Finally, Respondent is said to have violated Section 489.113(3), Florida Statutes by failing to subcontract roofing work.
Findings Of Fact James Wells is a registered building contractor having been issued license number RB 0008753. In June, 1985, Christiane J. Guignard hired James Wells to do repairing and rebuilding on parts of her home, including roofing work. The roofing work consisted of building a roof extension with hot tar and gravel roofing and a shingle roof. Guignard maintains that Wells agreed to guarantee his roof work against leaks for five years. Wells maintains that there was no explicit warranty, but he understood that he was responsible for "about a year" for leaks in his work. Wells did the work agreed on and completed it at the end of July, 1985. Guignard paid Wells a total of $4,575 for all of the work he had done. Prior to Wells' roofing work, Guignard had three leaks in her roof. Wells' work eliminated those leaks. According to Guignard, she had five leaks after Wells completed his work: 3 leaks around chimneys, 1 leak in a valley, and 1 leak in the overhang roof. Guignard called Wells and he came to perform repairs at the end of August, 1985. He applied silicon in the valley, around the chimneys and around a picture window, and he inserted extra shingles in the valley. According to Guignard, none of the leaks stopped. According to Guignard, she called Wells incessantly from the end of August, 1985, to March, 1987, regarding the leaks. Wells came back several times to inspect the roof for leaks. Wells determined that one leak was the result of an electrician who put a hole and two nails in the roof. Wells repaired this leak even though it was not the result of his work. Wells flashed two chimneys. In June or July, 1985, Wells replaced the shingles in the valley. Wells repaired all the leaks except the one in the overhang. Wells never found any evidence of a leak in that area. Guignard believes that area is leaking because the siding has become discolored and because she saw rain water running around the siding when she stood under the overhang in a heavy rain. Wells says that he told Guignard that the possibility existed that excess rain water from a heavy rain could run down the siding because of the slant of the roof. He saw the discoloration of the siding and says it results from the tree buds of a nearby tree falling on the roof, mixing with rain water, and running over the siding. Wells told Guignard that she needed to treat the siding with a water sealer to seal the wood. Sealing the wood was not part of his job and Guignard said she would do it, but never has. No independent or expert testimony was offered to show that a leak exists in the overhang or that any leak which is alleged to exist is the result of Wells' work.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Professional Regulation, Construction Industry Licensing Board, enter a Final Order dismissing the Administrative Complaint against James Wells. DONE AND ENTERED this 11th day of May, 1988 in Tallahassee, Leon County, Florida. DIANE K. KIESLING 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 11th day of May, 1988. APPENDIX TO RECOMMENDED ORDER, CASE NO. 87-5603 The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on the proposed findings of fact submitted by the parties in this case. Specific Rulings on Proposed Findings of Fact Submitted by Petitioner, Department of Professional Regulation, Construction Industry Licensing Board Proposed finding of fact 1 is adopted in substance as modified in Findings of Fact 1 and 2. Proposed findings of fact 2 and 3 are rejected as being unsupported by the competent, substantial evidence. Proposed findings of fact 4-8 are subordinate to the facts actually found in this Recommended Order. Specific Rulings on Proposed Findings of Fact Submitted by Petitioner, James Wells Proposed finding of fact 6 is adopted in substance as modified in Finding of Fact 11. Proposed finding of fact 12 is adopted in substance as modified in Finding of Fact 10. Proposed finding of fact 1 is adopted as a Conclusion of Law. Proposed findings of fact 2 and 9-11 are rejected as being unnecessary for the resolution of this matter. Proposed findings of fact 3-5, 7, and 8 are subordinate to the facts actually found in this Recommended Order. COPIES FURNISHED: David L. Swanson, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 Harold S. Richmond, Esquire 227 East Jefferson Street Post Office Box 695 Quincy, Florida 32351 William O'Neil, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 Fred Seely, Executive Director Construction Industry Licensing Board Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750
Findings Of Fact At all times material hereto, Respondent, Dean R. Stewart, held real estate license number 0172552 issued by Petitioner, Department of Professional Regulation, Board of Real Estate. He was employed as a salesman for Don Capin, Inc. a real estate firm located at 3001 Salzedo Street, Coral Gables, Florida. In March, 1977, Respondent and one Raymond W. Romeo purchased a parcel of property located at 1720 Wa-Kee-Na, Coconut Grove, Florida, for approximately $65,000. The parcel consisted of a large two-story house built in 1930 and an adjoining vacant lot. The vacant lot was later sold by Stewart and Romeo to a builder who wished to construct a new home. Respondent began a substantial restoration of the older house shortly after the parcel was purchased and eventually spent approximately $100,000 in modernizing and repairing the house. The entire first floor was torn out and replaced with new walls, windows, bathrooms, kitchen and electrical wiring. The house was repainted inside and out, recarpeted and landscaped. A swimming pool was installed in the back yard. The studs and plates on the second floor were also replaced and the bathrooms and kitchen modernized. An associate of Don Capin, Inc. described the list of things done to the house as incomprehensibly large". In March, 1979, Respondent contracted with Cooper Roofing, Inc. to "reroof" the house. According to the terms of their agreement dated March 12, 1979, Cooper was to perform the following work: Remove roof to sheating and hauling all trash away replacing rotten lumber where needed, using 30 lbs. felt in cap 12 on 12. Gravel stop around edges nail every 8" mopping on 2-15 with hot asphalt strip out with 1, 6" and 1, 9" 15 lbs felt flood coat and gravel, on top part only. On tile remove roof to locations of leaks re- pairing and relaying tiles back. gravel roof carries four (4) year guarantee. This roof is water tight with no evidence of leaks at this time. Price $1,400 /s/ Lonnie Cooper The main portion of the roof consisted of a large flat gravel area with parapets; the remaining area was made up of several smaller roofs, one covered with barrel tile and the other two with gravel. The two small gravel roofs were on the lower deck where the entrance to the house is located. Cooper reroofed the main gravel area and replaced missing tile on the small tile roof. However, notwithstanding the contract, he did not check the three smaller roofs for leaks. After the job was completed, he certified that the roof was in "satisfactory condition with no evidence of leaks at the time of inspection. (Petitioner's Exhibit 14). When the work was performed, Stewart believed that approximately 80 percent of the entire roof was being replaced and that the work was guaranteed. Stewart later repainted the small tile roof to improve its appearance. At the hearing, representatives of Cooper Roofing, Inc. agreed with Stewart that the area replaced represented about 80 percent of the entire roof. In April, 1979, Stewart and Romeo decided to sell their property. They listed the home with Respondents's employer, Don Capin, Inc., with an asking price of $275,000. The realtor accepted the listing knowing that the restoration project on the house was still underway, and was not yet completed. On April 18, 1979, Stewart gave the realtor an information sheet from which the firm prepared a brochure for inclusion in the Coral Gables Multiple Listing Service. The brochure described or stated the property's location, legal description, lot size, year built, improvements, taxes, price, terms, and procedure for inspection. It also included the following information: First Floor consists of 2 Large Apts: 3 Bedrooms 2 Baths, Large Living Room, NEW KITCHEN. 2 Bedroom 1 Bath, Living Room, NEW KITCHEN. Baths on First Floor are NEW, NEW ROOF, NEW CARPETING. NEW BLACK LAGOON POOL with Wood DECKING, Circular Drive, Entire Property is Walled In for Privacy Over 5000 Square Feet. (Petitioner's Exhibit 3) The listing included a proviso that it was made subject to omissions, errors and prior sale without notice. After reviewing the brochure several weeks later, Stewart noted a number of errors. Thereafter, on May 14, 1979, be prepared a corrected listing. In it, he changed the year the house was built from 1928 to 1930, modified the lot size from 90' x 120' to 89' x 122' and advised that the purchaser must qualify for assumption of the mortgage and be subject to escalating interest rates. (Petitioner's Exhibit 5). John F. Phillips, a salesman at Don Capin, Inc., received an inquiry concerning the property in May, 1979, from one Shirley Deitz, who had read an advertisement in the Miami Herald. Prior to this he had shown the house to only one other prospective buyer. Phillips took Dietz and her late husband to the property where they met Stewart. There Phillips accompanied Dietz and Stewart on an inspection of the house while Stewart explained the work done in the restoration project, including those areas that were not finished. During the inspection, Phillips and Dietz noted several items requiring repair. As is pertinent here, they included sagging and water-damaged ceilings in the living room, the upstairs hall, and above the kitchen sliding door. Stewart readily acknowledged that the ceilings had been damaged by a leaking roof, but advised the roof had been recently replaced. He also agreed to repair the sagging ceilings, and other items, prior to closing. Stewart claimed he told Dietz that only the parapet roof had been replaced; Dietz did not recall this, and Phillips was not privy to their conversation. Although the brochure stated that the entire property was "[w]alled in for privacy", there was no fence or wall on its west side. At the time of inspection, the property was enclosed on three sides by a concrete wall in front, and wooden fences in the back and on the east side. The missing wall was obvious to all, and Stewart made no effort to conceal it. In fact he agreed to construct a fence in the missing area prior to closing which was acceptable to Dietz. Stewart told her he intended to construct a wooden fence rather than a wall so that it would be compatible with the fences on the other two sides of the house and decking on the rear. There was no objection by Dietz. When the fence was constructed, it lay slightly over the property line and on the adjoining neighbor's property. This was caused by a water pipe which lay under the property line and required the foundation and fence to be placed beyond Stewart's property. Dietz executed a contract for sale and purchase on May 19, 1979. After an initial offer was rejected, the parties finally agreed upon a sales price of $225,000. The contract provided that: [s]ellers shall give credit at closing (to) repair ceilings in living room and hall upstairs, repair wall above sliding glass in upstairs kitchen, complete fence to west, property line, resurface driveway, and paint steps and porch to upstairs apartment. Prior to closing, Stewart repaired the ceilings, resurfaced the driveway, painted the steps and porch, and completed the fence as required by the contract. On or about Augusta 15, 1979, a closing was held on the property. Both parties were represented by counsel. Just after the closing, Respondent orally advised Dietz that the newly constructed fence on the west side was actually six inches over the property line and lay on Lot 4, her neighbor's property. Earlier that day Stewart had given Dietz a letter that she had signed and which acknowledged this problem. (Petitioner's Exhibit 7). The letter explained that a conveyance of the fence to the neighbor was necessary in order "to avoid any dispute with the owner of lot 4." However, Dietz claims she did not understand what this meant. At the closing Stewart and Romeo also executed a quit-claim deed conveying a strip of land...and fence lying approximately two feet from the east boundary of Lot 4..." to George I. and Rebecca Pope Stoeckert, who owned the adjacent property. (Petitioner's Exhibit 6). The document was prepared upon the advice of both parties' counsel although Dietz claimed it was never shown to her. Approximately one week after the closing a tropical storm swept through the Miami area and caused large amounts of rainfall. As a result, the ceiling in the house began to leak. Dietz complained to John Phillips, who told her that it should not leak because Stewart had recently had a new roof installed. Dietz attempted to contact Stewart but he was out of the State. She then called Cooper Roofing who, after a number of visits, ran a water test on her roof and found the lower deck to be leaking. This was the area that had not been replaced or repaired. Cooper advised her to get a roofing contractor to fix the leak. After finally contacting Stewart, he paid Andrews Roofing $900 to replace and repair a part of the barrel tile roof. The leaks continued and Dietz finally hired Fredrico Jaca, a roofing contractor, to inspect the roof. Jaca found the three smaller roofs needing repair and thereafter replaced "about two or three hundred feet of bad lumber" and about 500 square feet of tile. Dietz incurred the cost for making these repairs. In early November, 1979, George Stoeckert told Dietz that the fence between their property was actually 2.4 feet over his property line. He showed her a copy of a property survey to verify this. Dietz claimed this was the first time she was aware of the problem. Stoeckert then removed the fence in January, 1980, for ten months while he built a swimming pool and landscaped his yard. When it was rebuilt, the new fence was compatible with his own fencing rather than the one torn down. Stewart contended that neither the realtor or Dietz was misled. He stated he always advised that the house was rebuilt and that it had a new parapet roof, which covered approximately 75 percent to 80 percent of the roofing area. He believed the remainder had been patched and made watertight by Cooper Roofing, Inc. After learning of Dietz's dissatisfaction, he offered to re- purchase the house for what she had paid plus any moving expenses she had incurred; however, Dietz refused. Given the amount of money spent in remodeling the housed ($100,000), he considers the brochure representation that the house was "completely" rebuilt to be accurate. He further stated that he signed the quit-claim deed only after being advised to do so by both attorneys at the closing.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that all charges against Respondent be DISMISSED. DONE and ENTERED on this 5th day of March, 1982, in Tallahassee, Florida. DONALD R. ALEXANDER 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 5th day of March, 1982.
The Issue 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.
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.
Recommendation 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 Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 29th day of December, 1989. COPIES FURNISHED: J. Craig Myrick, Esquire Department of Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792 Charles J. Eckert 2515 16th Avenue Drive East Bradenton, Florida 34208 Kenneth E. Easley General Counsel DPR 1940 North Monroe Street Tallahassee, Florida 32399-0792 Fred Seely Executive Director CILB Post Office Box 2 Jacksonville, Florida 32202
The Issue Whether disciplinary action should be taken against the Respondent's contractor license number CG C022926, issued by the State of Florida, based upon the violations of Section 489.105(4), 489.113(3), 489.117(2), 489.115(1)(b), 489.119, and 489.129(1)(d), (e), (g), (j) and (m), Florida Statutes (1987), alleged in three administrative complaints filed by the Petitioner.
Findings Of Fact At all times material to this proceeding, the Respondent, Richard Lee Melvin, was a licensed contractor in the State of Florida, having been issued license number CG C022926, by the State of Florida. The Armstrong Job On or about February 26, 1987, Mr. and Mrs. Armstrong entered into a contract with Sunshine State Homes to do certain siding work and roofing work on two mobile homes owned by the Armstrongs located at 4605 and 4607 Orange Drive in Holiday, Florida. The cost of the repairs under the contract was $6,400. Although the Respondent did not sign that contract, his name and license number appeared on it, he applied for and was granted the necessary Pasco County permit for Sunshine State Homes using his licensure. At the time he applied for the permit, the Respondent knew that Sunshine State Homes was not licensed since he was considering qualifying that company. The permit that the Respondent received from Pasco County required, among other things, that all the Respondent's work conform with the requirements of state and county codes and regulations. The Respondent acted in the capacity of a contractor for Sunshine State Homes even though his certificate did not contain the name Sunshine State Homes. After the signing of the contract, work began on both structures. The roof was replaced on the main structure, and the Armstrongs were informed that the Rainbow Roof System contracted for could not be installed. After work began, it rained and because of improper construction techniques, both mobile homes flooded. Representatives of Sunshine State Homes attempted to correct the problems, but when it rained again, there was substantial leaking in both mobile homes. A rug from the main mobile home had to be removed. Another attempt was made to correct the leaks at the rental unit by re-coating the roof with sealant. Again, it rained, and both mobile homes flooded. Both mobile homes had leaks where, prior to construction beginning, they did not have leaks. Insurance covered $1,200 of the damage to the main mobile home. There also was damage that was not covered by insurance. The type of roof put on the main coach resulted in leaks all along the seam between the roof over the main coach and the roof over the addition to the main structure. The water leaked through the walls of the mobile home, causing water damage. On or about April 7, 1987, the roofs supposedly were finished, and the contractor wanted the rest of his money. The Armstrongs refused to give the balance of the money until another heavy rain was experienced. After representatives from Sunshine State Homes made various threats, the owners paid Sunshine State all but $900 of the contract price. The $900 was withheld to cover the water damage sustained as a result of the leaks. The work that was done was required to be inspected by Pasco County. The work had not been inspected because neither the Respondent nor anyone else from Sunshine State had called for inspections. The work that was done deteriorated over the summer months. On October 14, 1987, the homeowners contracted with Holiday Aluminum to replace the two mobile home roofs in accordance with the contract previously entered into between the homeowners and Sunshine State Homes. It cost the homeowners $4,300 to have the two new roofs installed. They have not experienced any problems with the roofs installed by Holiday Aluminum. The work Sunshine State did under the Respondent's licensure was done in a grossly negligent or incompetent manner. The Respondent and Tropical Exteriors The Respondent was contacted by Jeff Gaston, in mid-November, 1986. Gaston wanted the Respondent to qualify Gaston's company, Tropical Exteriors and Services, Inc. The Respondent met with Gaston and Gaston's attorney, and the Respondent understood that it would take time for all of the paperwork to be concluded. Towards the end of March, 1987, the Respondent started having concerns about his business relationship with Gaston and Tropical. However, the Respondent took no action to terminate that relationship or otherwise advise any governmental agencies involved or homeowners that he was not associated with Tropical until May 13, 1987. There was a continuous business relationship between the Respondent and Tropical for the period November, 1986, through May 13, 1987. The Respondent never qualified Tropical. The Respondent knew that Tropical was using his name in connection with its business after November, 1986. He also thought he would be given notice of any contracts Tropical entered into. But Tropical entered into contracts with the Clems and the Warzyboks and began work without telling the Respondent. The homeowners relied on Tropical's representations regarding the Respondent's association with the business. The Clem Job In November, 1986, Mr. and Mrs. Clem knew that they needed a new roof on their residence located 10511 - 53rd Avenue North, St. Petersburg, Florida, because the shingles were curling. However, they did not have any leaks in the roof. In November, 1986, the Clems were contacted by Millie Morris regarding the roof repairs. Morris stated that she worked for Tropical and was representing U.S. Steel. She advised the Clems that she would like to use the Clem home in an advertising campaign. The Clems did not have the cash money to pay for the repairs and needed financing. As part of that financing, Morris stated that she would give the Clems a $300 rebate on contracting resulting from any leads the Clems gave her. The Clems were able to obtain a second mortgage on their home which provided for the financing of the needed improvements. On or about February 9, 1987, the Clems entered into a contract with Tropical. At the time of the signing of the contract, Morris again reaffirmed to the Clems that any leads the Clems gave Morris that resulted in a contract would result in the Clems being paid the sum of $300. The Clems put $1,000 down at the time of signing the contract and were to pay $1,500 during the course of the job and $2,500 on completion of the job. Before entering into the contract, the Clems relied on the information on the contract letterhead which contained the Respondent's name, type of state certificate, license number, number of years of experience and a representation that the Respondent was insured. Additionally, the Clems called the Better Business Bureau and checked on Tropical to see if any complaints had been filed. The contract provided for, among other things, the removal of the old roof, installation of a new roof, the installation of soffit and facia, the installation of doors and windows and a guaranty on all the work. Shortly after the contract was signed and work was started on the roof, the Clems told Morris the people across the street from them needed repairs. Those people signed a contract with Tropical to have their roof replaced. The work was done, but the Clems received nothing for giving Tropical the customer lead. After the work was done, the Clems dealt with Morris and Gaston. Several times after the job was started, the Clems tried to get Gaston on the job site because the roof was leaking, there was no flashing around the drain pipes and vents, the aluminum edging was bent in many places and the siding had fallen on the ground. Several times when a representative of Tropical was on the job site, Mrs. Clem pointed out to them that the aluminum was bent in places, the seams were cut crooked, there were unnecessary splices in the aluminum, there were bad cuts around certain pipes, there was an electric light left hanging, the wrong weather stripping had been installed around the door, other weather stripping was not put up right, the windows were not sealed, the roof leaked, there was unnecessary tar on the shingles and there were aluminum overlaps facing the street, among other things. From that point forward, representatives of Tropical assured the Clems on many occasions that those problems would be corrected by a date certain, but the deadline was missed in every base. During the construction, the Clems agreed to pay Tropical the $1,500 due during the construction and $2,000 of the $2,500 that was due at the end of construction because a representative of Tropical explained to them that the job was near completion, Tropical needed the money to cover expenses and that Tropical would put in a bedroom window in the Clems residence at no charge. After many telephone conversations and on-site inspections by Tropical, all to no avail, Tropical agreed to finish the job if the Clems would pay him the remaining $500 and if the Clems would pay him an additional $150 for the bedroom window Otherwise, Tropical threatened to forfeit the $500 and not complete the job. The Clems agreed because they knew that it would cost them more than $500 to have the job completed by someone else. The job still was not competed, and the complaints were not corrected. The Clems called another siding contractor, who told the Clems that he would charge $750 just to correct the siding problems, that no permits had been pulled for the job and that the Clems should not allow any further work to be done until the permits had been pulled for the siding and the roof. When the building department received the siding contractor's inquiry regarding the permits, it contacted Tropical. The Clems had several conversations with their attorney, who advised the Clems that it would be cheaper to attempt to solve the problem with Tropical than to get a new contractor. Several attempts were made to have Tropical complete the job, but Tropical continuously failed to honor its agreements. The last time anyone from Tropical was on the job site was April 17, 1987. As of the hearing date, the complaints had not been corrected, and the work had not been completed in accordance with the contract. On or about March 13, 1987, the Respondent obtained a building permit from Pinellas County, Florida, for the installation of the aluminum soffit and facia work, only. Later, after the Respondent had terminated his relationship with Tropical, the job was inspected by the Department of Building Inspections of Pinellas County and was cited for violations of the applicable local codes which never were corrected. The work that was done was done in a grossly negligent or incompetent manner. The Warzybok Case On or about January 14, 1987, Mr. and Mrs. Warzybok, entered into a contract with Tropical Exteriors and Services, Inc., for the removal and replacement of the Warzyboks flat roof at their residence located at 6088 - 27th Avenue, St. Petersburg, Florida. Before entering into the contract, the Warzyboks relied on the information on the contract letterhead which contained the Respondent's name, type of state certificate, license number, number of years of experience and the representation that the Respondent was insured. Additionally, the Warzyboks called the Better Business Bureau and checked on Tropical Exteriors and Services, Inc., to see if any complaints had been filed. Before entering into the contract, the Warzyboks' old flat roof was leaking on the outside of an exterior wall but was not leaking inside. Shortly after the contract was signed, Tropical tore off the old roof, mopped one coat of tar over it, and after it started to rain, put some visqueen over the roof and left. Sometime during the following week, representatives of Tropical finished mopping, put some roof paper down and did some other miscellaneous work. Approximately one week later, Warzybok had the tile roof over the main house pressure cleaned (this roof was connected to the flat roof). When the water from the pressure cleaning came off the tile roof onto the flat roof, the water flooded the room underneath the flat roof. The Warzyboks also discovered that there were broken tiles on the roof over the main house. The flat roof was now leaking inside as well as outside. The Warzyboks attempted on numerous occasions to contact Tropical and have Tropical correct the problems and finish the work. Numerous appointments were made to finish the work and correct the problems, most of which were not kept. Whatever work was done by Tropical did not complete the job or correct the problems. At one point, Tropical sent out a new roofer, Bill Vance, who told the Warzyboks that the roof needed to be totally redone. Several months after the job was started, the homeowners called the City to get an inspection and determined that no permit had been obtained for the job. The City of St. Petersburg Building Department went to the Warzybok property and determined that there had been no permit issued and that the persons who were working on the premises were not licensed roofers. The building department placed a stop order on the work and told the Warzyboks that they needed a licensed roofer to complete the job. The job still has not been completed, and the problems have not been corrected. As of the hearing date, the Warzyboks have problem with leaking skylights, skylights covered with tar, a leaking fireplace, plaster being separated from the sheetrock because of water damage, roofing tiles that were not replaced after they were broken by Tropical and tar on the bottom of the roof, among other things. The Warzyboks got an estimate of $275 just to replace one piece of plaster adjacent to the fireplace only. Tropical started the roof as a three-ply roof and then changed the roof to a one-ply roof. There has been leaking at the chimney and at the skylights, which were not properly installed Some of the tile removed from the main roof at the point of tie-in with the flat roof has not been replaced properly and, in some places, has not been replaced at all. The Respondent, under whose license the work was done, did not know of, and did not properly supervise, the installation of the roof. The roof was installed in an incompetent manner.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Construction Industry Licensing Board find the Respondent guilty of violating Section 489.105(4), 489.119, and 489.129(1)(d), (e), (g), (j) and (m) , Florida Statutes, and that, as punishment, impose on the Respondent a fine of $5000, suspend the Respondent's license for three years and place the Respondent on probation for one year after termination of the suspension conditioned on completion of continuing education designated by the Board and on such other terms that the Board deems appropriate. DONE and ENTERED this 20th day of April, 1989 in Tallahassee, Leon County, Florida. J. LAWRENCE JOHNSTON Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 20th day of April, 1989. APPENDIX TO RECOMMENDED ORDER CASE NOS. 88-5197, 88-5198 and 88-5199 To comply with Section 120.59(2), Florida Statutes (1987), the following rulings are made on the parties' proposed findings of fact: Petitioner's Proposed Findings of Fact. 1.-4. Accepted and incorporated. Sixth sentence, rejected because it was additional sealant, not fiberglass, that was put on the rental unit. Otherwise, accepted and incorporated. Accepted and incorporated. Proposed findings regarding the "high ridge" rejected as not supported by the evidence but otherwise accepted and incorporated. Rejected that the owners held back $1,400 (they held back $900) but otherwise accepted and incorporated. Proposed findings regarding the owners' telephone calls to the inspection department and the inspection results rejected as not supported by the evidence. First and penultimate sentences, accepted and incorporated. 10.-11. Accepted and incorporated. 12. Subordinate and unnecessary. 13.-28. Accepted and incorporated. 29. Accepted but subordinate and unnecessary. 30.-33. Accepted and incorporated. 34. Proposed findings that the permit was pulled after the work for purposes of correcting the work rejected as not proven by the evidence. Otherwise, accepted and incorporated. 35.-45. Accepted and incorporated. The estimate was for plaster, not "plastic." Otherwise, accepted and incorporated. Accepted and incorporated. Second sentence, rejected as not supported by the evidence. Otherwise, accepted and incorporated. Accepted and incorporated. Respondent's Proposed Findings of Fact. (These rulings relate to the unnumbered paragraphs in the Respondent's March 23, 1989, letter, starting with the third paragraph. They are assigned consecutive paragraph numbers for purposes of these rulings.) Accepted and incorporated. First sentence, accepted and incorporated; second sentence, rejected as contrary to facts found. Accepted but subordinate to facts found and unnecessary. First and last sentences, accepted and incorporated. Second and third sentences, rejected as contrary to facts found. First sentence, accepted and incorporated. Second sentence, rejected as unclear. Accepted. First sentence, incorporated; second sentence unnecessary. First and third sentences, rejected as contrary to the weight of the evidence; second sentence, accepted but unnecessary. First sentence, accepted and incorporated (although the unlicensed companies using the Respondent's name also did work and assumed responsibility for the jobs over which the Respondent exercised no control at all.) Second sentence, rejected as contrary to facts found. COPIES FURNISHED: Jack M. Larkin, Esquire 806 Jackson Street Tampa, Florida 33602 Richard Lee Melvin 12737 North Florida Avenue Tampa, Florida 33612 Fred Seely, Executive Director Florida Construction Industry Licensing Board 111 East Coastline Drive, Suite 504 Jacksonville, Florida 32202 Kenneth E. Easley, Esquire General Counsel Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750
The Issue The issues presented are whether Petitioner should discipline Respondent's license as a roofing contractor for knowingly and willfully performing roof repairs without first obtaining a permit and recording a Notice of Commencement and without obtaining interim and final inspections of the work, and, if so, whether the proposed penalty is reasonable.
Findings Of Fact Petitioner is the local agency responsible for disciplining contractors licensed by Petitioner. At all times material to this proceeding, Petitioner licensed Respondent as a roofing contractor pursuant to license number C-2779. Sometime after October 8, 2004, Respondent knowingly and willfully repaired the roof (roof repair) of a private residence located in the City of Dunedin (the City) without first obtaining a permit and recording a Notice of Commencement, both of which are required by the City. Respondent performed the work, valued at approximately $4,200, on a residence located at 778 San Christopher Drive, Dunedin, Florida. Respondent failed to obtain interim and final inspections of the roof repair. Respondent did not request the City Building Department (the Department) to perform interim inspections or final inspections, and the Department did not perform any inspections of the roof repair. Respondent met with Rodney S. Fischer, Executive Director for Petitioner, to discuss the allegations against Respondent. During that conversation, Respondent admitted to performing the relevant roof repair without a permit. Respondent offered several reasons for the failure to obtain a permit and recording a Notice of Commencement prior to performing the roof repair. The work performed was to repair damage from a previous hurricane. Time was of the essence because another hurricane was approaching. The homeowner was in the hospital and was not able to replace Respondent with another roof contractor. Respondent objects to the disclosure of information required by the City in the permit application and Notice of Commencement. Respondent claims that requirements for disclosure of the value of the work to be performed discloses to competitors the pricing structure utilized by Respondent and provides an unfair competitive advantage for large roofing contractors. The evidence is insufficient to support a finding that the unauthorized roof repair caused harm to the homeowner or to any other member of the public. Neither the homeowner nor a private citizen filed a complaint against Respondent. The homeowner obtained a permit after Respondent completed the roof repair and is not subject to penalty. The evidence is insufficient to support a finding that any previous discipline has been imposed on Respondent's license. As Petitioner admits in its PRO, Respondent has had similar complaints against his license in the past relating to the failure to pull permits for jobs requiring permits. Complaints are not synonymous with convictions and discipline. The purpose of the relevant requirement for a permit is to protect the health, safety, and welfare of persons that come into contact with the work. The requirement is also imposed to ensure the integrity of the structure through interim inspections. There is no evidence that the roof repair is faulty or is likely to harm the health, safety, and welfare of the homeowner or others. The City requires a Notice of Commencement to be filed prior to the issuance of a permit in order to ensure that all material suppliers and subcontractors are put on notice that notices to the owner of a property must be provided in accordance with the construction lien provisions of Chapter 713, Florida Statutes (2004). The requirement ensures that a property owner will not be required to pay twice for materials or services rendered. There is no evidence that the homeowner paid twice for the roof repair.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner enter a final order finding that Respondent is guilty of the violations alleged in the Administrative Complaint and imposing an administrative fine in the total amount of $400. DONE AND ENTERED this 30th day of September, 2005, in Tallahassee, Leon County, Florida. S DANIEL MANRY 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 30th day of September, 2005. COPIES FURNISHED: Robert Neal Davis 9770 130th Avenue, North Largo, Florida 33773 Donald S. Crowell, Esquire Pinellas County Attorney 315 Court Street, Sixth Floor Clearwater, Florida 33756 Rodney S. Fischer, Executive Director Pinellas County Construction Licensing Board 11701 Belcher Road, Suite 102 Largo, Florida 33773-5116
The Issue Petitioner, the state agency charged with regulating the practice of contracting pursuant to Section 20.30 and Chapters 455 and 489, Florida Statutes, filed an administrative complaint dated May 20, 1986. Thereby, it has charged Respondent with violations of Sections 489.119, 489.129(1)(g), (j), and Florida Statutes, for which violations it seeks to impose, according to its post-hearing proposal, the requirement of $5600 restitution to Mr. Kenneth Jessell, a fine of $1500, and a one year suspension of Respondent's contractor's license. BACKGROUND AND PROCEDURE The parties' Joint Prehearing Statement was admitted as Hearing Officer Exhibit 1. Petitioner presented the oral testimony of Kenneth A. Jessell, Richard P. Scanlon, Gene O. Seymour, and Robert D. Hilson, and had admitted Petitioner's Exhibits 1, 2, 4, 5 and 6. Exhibit P-3 was marked for identification and proffered but not admitted. Respondent presented the oral testimony of Sheldon Israel and Respondent and had admitted Respondent's Exhibits 1, 2, and 4. Exhibit R-3 was marked for identification and proffered but was not admitted. At the close of hearing, Respondent moved for dismissal for failure of Petitioner to establish a prima facie case. That motion was taken under advisement and is addressed in the following conclusions of law. Upon the filing of a copy thereof as a post-hearing exhibit, judicial notice was taken of Section 3401.1(a)(3) South Florida Building Code, without objection. Petitioner filed transcript herein, and the parties' timely filed their respective post-hearing proposals within the time extensions agreed-upon and granted. The parties' respective proposed findings of fact are ruled upon pursuant to Section 120.59(2), Florida Statutes, in the appendix to this recommended order.
Findings Of Fact Respondent is, and has been at all times material hereto, a certified roofing contractor, license number CCC02955I, whose address of record is 2311 N. E. 35th Street, Lighthouse Point, Florida 33064. On or about June 6, 1985, Respondent, doing business as Great Southern Industries, contracted with Mr. Kenneth Jessell to install a roof on Jessell's house at Lighthouse Point, Florida. The contract price was $5,600. At no time relevant to the charges herein did Respondent or anyone else qualify Great Southern Industries nor did that name appear on Respondent's license. At hearing, Respondent admitted a violation of Section 489.129(1)(g), Florida Statutes, by acting in the capacity of a contractor under a name other than that appearing on his state certificate, and further admitted violation of Sections 489.129(1)(j) and 489.119, Florida Statutes, by failing to qualify a legal entity through which he was contracting. The parties stipulated those allegations of the complaint were to be considered proven. In mitigation, Respondent established that no fraud or deceit concerning who was actually performing the roofing work was perpetrated against Mr. Jessell, that Respondent's omissions were due to his misunderstanding of the legal requirements involved, and that at all times since its incorporation, August 31, 1984, Respondent has been sole shareholder, officer, and director of Great Southern Industries, Inc., a Florida corporation. Upon being made aware of his violations, he has ceased to do business as Great Southern Industries. There is no evidence of prior misconduct. Respondent, as Great Southern Industries, partially completed work on Jessell's house and Jessell partially paid for said work when a dispute arose between Respondent and Jessell relative to the work. Respondent began work on Jessell's roof on June 17, 1985. On June 18, 1985, a pitch fire broke out. The pitch fire resulted from a tar kettle which had not been appropriately handled by an employee of Respondent who had been assigned to tend it. Such fires are not uncommon in the industry. After the fire was put out, work ceased for the day, but Respondent appeared the very next day and continued with the roofing project. There is expert testimony that leaving such a pitch or tar fire unattended was negligent and that if the overly hot pitch or tar had then cooled overnight, been reheated, and used on Jessell's roof it would have been inadequate for the job. However, there is no direct credible testimony or documentary evidence that this is what actually occurred. Mr. Jessell was not present on the site the next day and approximately 60-70 percent of the base layer of the roof had been tarred over before this event occurred. Mr. Jessell is a college professor in finance and real estate. He has no expertise in contracting, roofing, or inspection of such jobs or the material used therein, but upon observation from the ground, without going onto the roof, Jessell decided the roof was not being properly constructed. On June 25, 1987, at Mr. Jessell's insistence, Gene O. Seymour, the Chief Building Inspector of the Broward County Building Department inspected the job, which he did not approve at that time. Respondent came back to conform the job to the inspector's concerns. Seymour did not approve the job at reinspection on July 1, so Jessell withheld payment. Respondent again returned and did some additional work. On July 9, the job again did not pass inspection. Respondent did further repairs on July 29. There were numerous other inspections but the job did not pass for one reason or another. On each occasion, Respondent came back to address the inspector's concerns. Seymour's testimony can be synopsized that he made an extraordinary number of inspections (at least 20) at Mr. Jessell's urging, and that the roof often failed to pass, mostly because the work was not yet fully completed. Inspector Seymour noted that sometimes the job would pass one inspection only to have Jessell call him back and show him new problems which had appeared in the interim. Seymour could not explain how this could be. He termed the job "jinxed." Respondent maintains, and Jessell denies, that Jessell frequently would go up on the roof and make suggestions to Respondent and his employees on how the roofing should be done, that Jessell pulled up on the felts, and that Jessell otherwise damaged the work done by Respondent and his crew. Having observed the respective candor and demeanor of Jessell and Respondent, and after considering and weighing the foregoing comments of Inspector Seymour and of all the witnesses' peripheral testimony on how rapid deterioration and excessive patching occurred, I find Respondent's explanation of the problems up to this point to be the more credible explanation, if a somewhat exaggerated one. Up until August 22, 1985, Respondent came and fixed anything Jessell complained of or that had been noted by an inspector. Finally, on August 22, Inspector Seymour approved the job as ready for the addition of tiles. Jessell was still dissatisfied with the roof.. By this time, he had been up on it several times with and without Seymour. Jessell took photographs and sought out Seymour in his office. Seymour rescinded his approval due to the appearance of new water blisters. Both Jessell and Seymour concur that at this point there were no leaks. On August 30, Seymour inspected again. He cut deeply into the roofing material in three places; in each place, he cut down to the base plywood sheeting and found no evidence of any water. This type of testing is considered "destructive testing." He also observed gouges, slashes, and nails working out. He proposed that Jessell get an independent consultant to resolve the problems between them. Respondent obtained a visual inspection by Sheldon Israel who wrote a letter which was signed off on by a certified architect and which confirmed that the roof as completed by Respondent thus far complied with the intent of the South Florida Building Code, which Code has been adopted in Broward County. On September 20, Seymour gave final approval for the stage the job had reached based on the letter from Israel and the fact that the waterproof membrane which Respondent had installed was intact at that time. Thereafter, Jessell hired Richard Paul Scanlon, a licensed and certified roofer, who eventually tore off what had been done by Respondent and did a complete "reroof" at a cost to Mr. Jessell of $6500. Scanlon, qualified at hearing to give expert evidence in roofing contracting, saw the roof in January 1986, approximately six months after Respondent had left the job. During those six months, the unfinished roof had been sitting exposed to the elements, without tiles, and with numerous patches, gouges, and cuts in it. He opined that Respondent's work constituted poor work and gross negligence. His opinion is based on his visual inspection without any tests whatsoever. Errors in Respondent's work which he noted included mopping the tar the wrong way, improper water lapping, and use of some rag felts and some fiberglass felts as opposed to the use of fiberglass as required by the Jessells' contract with Respondent. (However, rag felts and fiberglass felts both meet Code requirements.) Scanlon felt there was a possibility the roof would slide if tiles were added atop Respondent's work but declined to say this was a probability. In order to give a roof warranty, Scanlon felt he had to tear off Respondent's work and "reroof." Whatever he may have found when he tore the roof off later was not explored. Robert D. Hilson, a licensed and certified roofing contractor was also qualified as an expert witness. He also did not inspect the Jessell work until January 1986. He stated the number of patches over the base layer was excessive and unusual and the consistency of the tar was far too "runny," thin, and "gooey." As opposed to this thin consistency being clearly connected to the kettle fire and base coat mopping, Hilson indicated the consistency of tar he was objecting to was a last attempt at overpatching the base layer. He also testified that the roof patches had been lapped the wrong way and occasionally had been mopped inadequately or the wrong way, and he assumed the base layer was also lapped the wrong way, but he never "eyeballed" the base layer to verify this. He found water present at that time. He indicated 6 months exposure would have caused insignificant deterioration. Contrariwise, Sheldon Israel, also accepted as an expert, opined that possibly 6 months could have caused the deterioration Scanlon, Hilson and Jessell all described as existing in January 1986. The contract between the Jessells and Respondent is ambiguous. One portion provides: "5. Install Spanish Style, cement tile roof over 90 lb. roof surface." Another paragraph provides: "8. Owners to select specific colors of Gory Spanish S by 6/12/87 at 12:00 p.m." Printed instructions (specifications) for installation of Gory roofing tile require water laps on 90 pound felt. The Southern Building Code requires prepared roof coverings to be applied in accordance with manufacturers' printed instructions for the products used. Respondent used 90 lbs. rag felts and some fiberglass felts. Both meet Code. Respondent admits he also installed a waterproof membrane or tile underlayerment that was manufactured especially to go underneath Genstar cement tile. This waterproof membrane can only be exposed to the elements without covering for 6-8 months before it is too damaged for use. Respondent planned to install Gory tile on top of the membrane but according to the best expert testimony Gory tile cannot competently be installed over such a waterproof membrane and its ability to be installed over fiberglass felts is questionable. The dispute between Jessell and the Respondent was resolved and Mr. and Mrs. Jessell executed and tendered a full release dated March 20, 1986, for all work performed on their house by Respondent and Great Southern Industries, Inc.
Recommendation Upon the foregoing findings of fact and conclusions of law it is recommended that the Construction Industry Licensing Board enter a final order finding Respondent guilty of violations of Sections 489.129(1)(g), 489.129(1)(j) and 489.119, Florida Statutes, assessing a penalty of $1000 administrative fine therefor, and dismissing the charge of fraud, deceit, gross negligence, incompetency, or misconduct brought under Section 489.129(1)(m), Florida Statutes. DONE AND ORDERED this 2nd of July 1987, in Tallahassee, Florida. ELLA JANE P. DAVIS 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 2nd day of July 1987. APPENDIX TO RECOMMENDED ORDER CASE NO. 86-2552 The following constitute rulings pursuant to Section 120.59(2), Florida Statutes, upon the parties respective proposed findings of fact (FOF). Petitioner's Proposed FOF. 1-2. Covered in FOF 1. Covered in FOF 1 and 4. Accepted but subordinate and unnecessary. Sheldon Israel was accepted as an expert witness upon other qualifications of record. Accepted but alone is not dispositive of any issue at bar. Rejected as out of context and as not constituting an ultimate material fact. The topic as a whole is covered in FOF 9-11 and the conclusions of law so as to conform to the credible record as a whole. Accepted but not dispositive of any issue at bar. Topic covered in FOF 5 and 10. Accepted but not dispositive of any issue at bar. Contrary to the parties' belief, lack of supervision was not alleged with specificity in the administrative complaint. I accept Respondent's testimony that the employee assigned to the kettle, improperly oxygenated its contents but had not abandoned it. See FOF 5 and 10. Rejected as covered in FOF 11 which conforms with the evidence of record. Rejected as covered in FOF 9 which conforms to the evidence of record. Respondents Proposed FOF. Covered in "Issues." Covered in FOF 1. Covered in FOF 2. Covered in FOF 4. Covered in FOF 12. Covered in FOF 3. Rejected as covered in FOF 11, which conforms with the evidence of record. Rejected as a conclusion of law. Accepted as modified in FOF 6-7 to conform to the evidence of record. COPIES FURNISHED: G. Vincent Soto, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 Gary I. Blake, Esquire 3111 University Drive Coral Springs, Florida 33065 Fred Seely, Executive Director Construction Industry Licensing Board Post Office Box 2 Jacksonville, Florida 32201 Van Poole, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 Joseph A. Sole, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750
The Issue The issue is whether Petitioner is entitled to reimbursement of its attorneys' fees and costs under section 120.595(3), Florida Statutes, from its successful prosecution of a rule challenge in DOAH Case No. 12-1944RX.
Findings Of Fact In DOAH Case No. 12-1944RX, Petitioner challenged Florida Administrative Code Rules 69O-170.017 and 69O-170.0155 and incorporated forms OIR-B1-1699 (Form 1699) and OIR-B1-1655 (Form 1655). These rules generally relate to fixtures and construction techniques that mitigate wind loss and earn homeowners a discount on the wind portion of their homeowners' insurance premium. The most important of these rules, Form 1699 consists of two matrices: one matrix provides discounts for mitigative fixtures and construction techniques applied to existing residential construction (i.e., predating the 2001 Florida Building Code), and the other matrix provides discounts for mitigative fixtures and construction techniques applied to new residential construction (i.e., subject to the 2001 Florida Building Code or any of its successors). The Final Order invalidates the matrix applicable to existing residential construction, but not the matrix applicable to new residential construction. The Final Order concludes that the omission from Form 1699 of discounts for increased wind resistivity for doors modifies and contravenes the law implemented and is arbitrary. The Final Order finds other omissions from Form 1699--i.e., discounts for increased wind resistivities for windows and increased impact resistivities for doors--but these findings served the purpose of partly justifying the invalidation of the entire form for the omission of a single set of discounts substantially affecting Petitioner--i.e., the discounts for increased wind resistivities for doors. (Findings as to the interdependency of all of the discounts provided the remaining justification for invalidating the entire form for the omission of a single set of discounts.) Form 1655 advises homeowners of the availability of discounts applicable to the wind portion of their homeowners' insurance premiums for various mitigative fixtures and construction techniques. The Final Order invalidates Form 1655 in its entirety. The main reason is that Form 1655 fails to notify homeowners about the availability of discounts for fixtures and construction techniques that increase the wind resistivity of windows and doors. An additional reason is that Form 1655 mentions shutters as the sole fixture to increase the impact resistivity of windows and doors, misleadingly implying that shutters are the sole fixture or construction technique for increasing the impact resistivity of windows and doors. Rule 69O-170.017 incorporates by reference Form 1699. The Final Order denied Petitioner's request to invalidate rule 69O-170.017 because the rule incorporates the still-valid, existing-construction matrix in Form 1699. Rule 69O-170.0155 incorporates by reference several forms. The Final Order invalidates only rule 69O-170.0155(k), which is the subsection that incorporates Form 1655. Petitioner commenced its rule challenge to obtain a wind-premium discount for homeowners who purchased and installed its bracing system on their existing, nonglazed garage doors in order to increase their wind resistivity. The thrust of Petitioner's challenge was thus to the omission from Form 1699 of any discounts for fixtures and construction techniques that increase the wind resistivity of doors. Obviously, the shortcomings of Form 1655--and its adopting rule, rule 69O-170.0155(k)--were almost entirely derived from this omission from Form 1699. Respondents' liability for attorneys' fees and costs thus requires consideration only of its adoption of Form 1699 without any discounts for fixtures and construction techniques that increase the wind resistivity of doors. As noted in the Final Order, the establishment of discounts for all mitigative fixtures and construction techniques is a complicated process. The actuarial expertise necessary to complete this task resides in Respondent Office of Insurance Regulation (OIR), but is itself dependent on engineering expertise that is not found within either respondent, or at least was not in 2006 when Form 1699 was adopted. The engineering work underlying Form 1699 featured computer modeling, among other things, to project the salient features of storms that may be expected to strike various parts of Florida over thousands of years; as for impact resistivity, to project the trajectories and momentum of missiles that will be launched by these storms; to place in the path of these storms and missiles various forms of residential construction with relevant combinations of mitigative fixtures and construction techniques covering several factors, including the protection of windows and doors from impacts and the protection of windows and doors from wind (without regard to impacts); to project the damage states that will result from these modeled storms upon individual hypothesized residential buildings; and to project the economic losses--with particular emphasis on insured losses--that will result from these damages. The relevant timeframe for this case begins with Hurricane Andrew in 1992. As the Final Order describes, the Florida legislature and other federal and state agencies and organizations reacted swiftly and comprehensively to this storm and the catastrophic damage and loss that it caused. FEMA quickly published its analysis of, among other things, the relationship between construction and storm damage. In 2001, the legislature adopted the Florida Building Code (FBC), which required, among other things, new construction to meet wind loads specified in the code, based on projected wind speeds in different regions of Florida. Almost at the same time that the 2001 FBC went into effect, in March 2002, Applied Research Associates, Inc., published the Development of Loss Relativities for Wind Resistive Features of Residential Structures (2002 ARA Report). Procured by the Florida Department of Community Affairs, which, at the time, had considerable responsibilities in the adoption of the 2001 FBC, the 2002 ARA Report was a groundbreaking achievement in modeling the effects, in terms of reduced damage and loss, from various forms of mitigative fixtures and construction techniques, alone and in almost countless combinations. For present purposes, the focal point of the 2002 ARA Report were tables of loss relativities, which provided factors by which to calculate how different combinations of mitigative fixtures and construction techniques reduced wind losses. Taking these data, OIR's actuaries issued in January 2003 an informational memorandum and a precursor to Form 1699, which suggested premium discounts to be used by homeowners' insurers when filing insurance rates. (Then and now, insurers are permitted to use other data sources in setting their rates, but all but two of them use the suggested discounts in Form 1699.) In August 2004, Hurricane Charley struck Florida. A design wind event, like Hurricane Andrew, the timing of Charley, after the adoption of the 2001 FBC, proved the effectiveness of the 2001 FBC in requiring fixtures and construction techniques that demonstrably mitigated wind damage and loss. In 2006, respondents issued Form 1699 in its present form, eliminating a dampening factor that they had included in the precursor form three years earlier. (To allow insurers to adapt to the new rate-setting environment, respondents had halved the discounts in the precursor form.) The 2002 ARA Report claims to adhere to the statutory mandate contained in section 627.0629(1), to determine discounts for fixtures or construction techniques that "enhance roof strength, roof covering performance, roof-to-wall strength, wall-to-floor-to-foundation strength, opening protection, and window, door, and skylight strength." For reasons explained in the Final Order, "opening protection" is limited to the impact resistivity of windows and doors, and the "strength" of windows and doors (skylights being treated as windows) is limited to their wind resistivity. Unfortunately, the 2002 ARA Report collapsed opening protection and the strength of windows and doors into one category--opening protection--so ARA never developed loss relativities for fixtures and construction techniques that increased the wind resistivities of doors or, for that matter, windows. As noted above, respondents were entirely dependent on the work of ARA due to its specialized knowledge of the FBC and, more generally, its expertise in engineering and computer modeling. ARA, not respondents, possessed this highly specialized knowledge, which was necessary to generate the loss relativities, on which respondents, in turn, could rely to generate the legislatively mandated premium discounts. The omission of loss relativities for the strength of windows and doors--as a standalone category or within the category of opening protection--is not apparent in the richly detailed 2002 ARA Report. The above-described facts--coupled with the time- pressured nature of the task assigned to respondents--provide the reasonable basis in fact for the adoption of the portion of Form 1699 that has been invalidated. The factual justification for the adoption of the portion of Form 1699 that has been invalidated is greater than any legal justification that respondents may claim. The statute truly is a model of clarity--and succinctness. Reduced to its plainest terms, the statute calls for discounts for six categories of mitigative fixtures and construction techniques, and ARA and respondents addressed only five. However, some legal justification exists for the adoption of the portion of Form 1699 that has been invalidated. First, the legal mandate of section 627.0629(1) does not exist in a vacuum; it operates in the complex facts of engineers, computer programmers, and actuaries whose work is necessary to lend meaning to the statutory mandate. To this extent, respondents find some legal justification for the same reason that they find ample factual justification for the adoption of the portion of Form 1699 that has been invalidated. Second, the legislature itself missed a clear, early opportunity to remind respondents of their failure--obvious, perhaps, only in hindsight--to address the omitted sixth factor enumerated in section 627.0629(1). The precursor of Form 1699 likewise omitted discounts for fixtures and construction techniques that increased the wind resistivities of doors and windows. When, in 2006, the legislature mandated the adoption of full discounts, without any dampening, it easily could have forcibly reminded respondents that they--and their contractor-- had missed one of the six statutory discounts. The subtlety of respondents' legal error seems to have eluded the legislature, as well. Third, even in hindsight, the legal underpinning of the invalidation of the existing-construction matrix of Form 1699 is sometimes elusive, given the temptation to join ARA and respondents in analyzing wind resistivities under the factor of opening protection. As disclosed at the hearing, the Administrative Law Judge spent a considerable amount of time, in preparing the Final Order, misanalyzing respondents' treatment of the wind resistivities of doors from the perspective of opening protection. Repeated, close readings of section 627.0629(1), in the context of the complex materials presented in the 2002 ARA Report, eventually revealed the now-clear legal principle that the omitted sixth statutory factor--the strength of windows and doors--applied to wind resistivity (and opening protection was restricted to impact resistivity). And Petitioner itself joined in exactly the same misanalysis, both in its pleading and proof at the hearing in the rule challenge. Seeming to yield once more to this misanalysis, even in the fee hearing, Petitioner cross-examined OIR's lone witness with an emphasis on respondents' flawed decision, as described in the Final Order, to omit a discount for doors under opening protection.
