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CONSTRUCTION INDUSTRY LICENSING BOARD vs. ROBERT L. FOUNTAIN, 89-002954 (1989)
Division of Administrative Hearings, Florida Number: 89-002954 Latest Update: Oct. 24, 1990

The Issue The issues to be resolved in this proceeding concern whether the Respondent has committed violations of Section 489.129(1)(m), Florida Statutes, by committing fraud, gross negligence, incompetency and misconduct in the practice of contracting, and whether he has violated Section 489.129(1)(d), Florida Statutes, by deliberately disregarding and violating applicable building codes with regard to the construction of two residences or additions thereto in Tallahassee, Florida.

Findings Of Fact The Petitioner is an agency of the State of Florida charged with enforcing the provisions of Chapter 489, Florida Statutes, and related rules, which provisions regulate the admission to licensure and the licensure status of certified building contractors, impose standards for the practice of building contracting and provide a means for enforcement of these practice standards by disciplinary proceedings such as this one. The Respondent is a citizen of the State of Florida and is a certified building contractor. He is the qualifying agent for Fountaincrest Builders.. He holds license no. CBC022113. The Respondent had built a substantial number of residences in Tallahassee and Leon County, Florida, in the years in which he has practiced contracting in Leon County. On December 23, 1988, Dr. Ronald Reeves purchased a home in the High Grove subdivision located at 4770 Lancashure Lane, Tallahassee, Florida. The home had been built by the Respondent and Fountaincrest Builders, and Dr. Reeves purchased the home from the Respondent. Dr. Reeves was apparently satisfied with the quality and type of construction in the existing home which he purchased. However, he decided to construct an addition to that home. He desired to construct the addition on the end of the house encompassing the garage (the south end), in order to have room for an upstairs playroom, additional bathrooms, an office and library area, and to continue to have garage space. Dr. Reeves is a medical doctor, who operates a consulting business, using a portion of his residence as his office and work area. Accordingly, in early January of 1989, he consulted with Mr. Fountain about the possibility of constructing an addition to the home for this purpose. On January 23, 1989, he contracted with the Respondent and Fountaincrest Builders for the construction of the addition. He believed that the Respondent could best accomplish an appropriate blending of the structure and appearance of the addition with the existing house since he was the original building contractor, who constructed the house and would be most familiar with all construction details related to it and to the addition. In fact, his decision to buy the existing house was influenced by his desire to build an addition to integrate structurally and visibly with the existing house, so that the fact that the addition had been built at a later time would not be readily apparent. The Respondent assured him that he could structurally and aesthetically blend the addition with the existing house in an appropriate and pleasing manner. The parties agreed to a contract price of $40,666.00. Construction was commenced and carried through to completion, although not to the satisfaction of the owner. Dr. Reeves ultimately paid approximately $36,000.00 of the agreed- upon contract price before frequent and increasingly heated disagreements between Dr. Reeves and the Respondent culminated in the termination of the contract and the Respondent leaving the job. The construction agreed upon consisted of an enclosure of the existing garage to create an office, study and library area with a half bathroom, as well as adding a three-car garage with a staircase and a recreation room and half bathroom on the upstairs level. The contract provided and the Respondent verbally agreed that all work would be performed to the same quality and standards as that prevailing in the existing home to which the addition was to be added. Dr. Reeves and the Respondent discussed Dr. Reeves' desires and requirements for the addition, including the bathroom, study, garage, staircase, recreation room, etc.; and Dr. Reeves thereby indicated to the Respondent the general physical nature and description of the construction he wanted done. The Respondent then selected a draftsman and had the draftsman draw plans for the addition. Prevailing standards for the practice of building contracting in Florida and in Leon County require that a building contractor, who obtains the plans, should be responsible for verifying the measurements to insure that the drawings correctly account for and depict the existing construction and the proposed construction to be added to it. Verifying the measurements in this context means that the contractor should check all dimensions before construction begins to insure that the new construction depicted on the plans, including its junction with the existing building, will fit and match the existing building, both as to dimensions and type and size of materials used, as well as verifying the dimensions depicted on the plans with the actual layout of the proposed construction in the field. This helps to insure that all elements depicted on the plans, materials used and finished components of the construction will appropriately fit within the dimensions depicted on the plans and that those dimensions will ensure appropriate mating of the new construction with the old. The plans obtained by the Respondent contained the following caveat from the draftsman: While every attempt has been made in the preparation of this plan to avoid mistakes, the maker cannot guarantee against human error. The contractor on the job must check all dimensions and other details and be responsible for same. The Respondent obtained the building permit for the additional construction on January 24, 1989 and construction commenced shortly thereafter. Construction had commenced before the Respondent ever advised the owner that certain problems existed regarding differences between the dimensions depicted on the plans and the actual field rendering of those same elements of the construction. During the course of construction, Dr. Reeves perceived certain deficiencies and discussed them on a repeated basis with the Respondent. These deficiencies and the discussions concerning them, which became more and more heated, culminated in Dr. Reeves' sending the Respondent a registered letter on May 9, 1989 identifying the deficiencies which ultimately were the basis for the charges in the complaints. In Leon County, all structures constructed pursuant to a building permit must comply with the Standard Building Code; and all such structures must have a building permit issued before construction can commence. It is the builder's responsibility to be familiar with that building code and to apply it correctly to each phase of construction. The code applicable to this construction and proceeding is that contained in the Standard Building Code, 1935 Edition, with 1986 and 1987 Revisions ("SBC"). This code and its predecessor versions have prevailed in Leon County for the past 16 years. The Respondent had assured Dr. Reeves that the exterior appearance of the proposed addition would aesthetically blend with the existing house so that the junction of the addition with the existing house would not be noticeable. In fact, however, the brick on the front elevation or face of the Reeves' home, facing the street and front yard, does not properly blend with the brick of the existing home at the point where the addition joins the existing home.' Although brick of a matching size, shape and color was used in the addition, the new brick does not correctly align and blend with the old brick. After the brick work was already in place, the Respondent represented to Dr. Reeves that the blending was, in his opinion, of good quality and about the best obtainable from masons and contractors in the trade in the Leon County area. In fact, however, `the existing masonry work is substandard. The joint thicknesses vary beyond acceptable limits and the brick was not correctly "keyed in" or overlapped with existing brick courses from the existing house corner and thus does not achieve minimum standards of masonry construction prevailing in Leon County and in Tallahassee. In fact, at one point, in a noticeable area near the ground, at the junction of the old and new brick veneer walls, bricks are cut or broken and the old half brick is joined to the new half brick with a mortar joint rather than whole old bricks and whole new bricks being correctly overlapped or "keyed in". Thus, even if the Respondent intended that the blending of the brick would be of good quality and would not be readily noticeable, the execution of the masonry work was not actually carried out in that manner. The plans as originally procured by the Respondent from the draftsman depicted a garage window on the front of the addition to the home at the same level as the existing windows in the home itself. That window was depicted on the original plans as a square window. The plans contain a notation by Dr. Reeves', questioning why the window was square instead of matching the existing windows of the house in shape, which were large palladian windows (having arched openings). Because Dr. Reeves wanted the palladian window, the plans were taken back to the draftsman for revision. When the draftsman revised the plans, he indicated to the Respondent that the palladian window would cause a problem because it was higher than the square window originally depicted on the plans and, therefore, would project up into the space required for the window "header". The header is a top plate or structural component designed to span the top of a window opening at the top of a wall and which, in this case, is required to support part of the load or weight of the upstairs floor and roof assembly. The plans were nonetheless changed to include the palladian window, and the Respondent obtained the plan showing the palladian window in the garage wall, rather than the square window, prior to commencing construction. In order to fit the palladian window in the wall and still have room for a header over the window opening upon which to support the upstairs floor and roof components overlying the top of the window opening, it became necessary to frame the window in such a way that the finished window would ultimately project approximately one foot lower or closer to the ground or grade level than the existing windows in the home, which is readily apparent when viewing the front elevation. The Respondent did not inform Dr. Reeves that the window would be approximately one foot lower than the existing windows in the home until well after construction had commenced and, indeed, the window was already framed into the wall. Dr. Reeves did not actually approve of this difference in window elevations. He felt compelled to accept it since at that stage of construction, it was the only practical solution to the problem created by there being insufficient space in the wall to accommodate the palladian window if installed at the level of the existing palladian windows in the home. Although it is true that Dr. Reeves insisted on the change from the square configured window to the palladian window, the fact that the window was ultimately installed at a lower level than existing windows and is thus aesthetically undesirable due to its misalignment with existing windows was due to the Respondent's failure to verify the measurements of the plans and their depiction of the window with the dimensions necessary to the correct framing of that wall. This resulted in insufficient space required for the header or support beam system spanning the window opening necessary to support the overlying second floor and roof elements of the construction. The relatively incurable nature of the problem also resulted, in substantial part, from the Respondent's failure to advise the owner of the dimension problem created by the window configuration change before construction began and had progressed to the point that proper alignment of the window and proper window configuration could no longer be effected. It was the Respondent's duty to reconcile all discrepancies in the existing measurements in the plans for the permitted addition before the work commenced and to disclose in a timely fashion any deviations from those plans to the owner in order to effect the owner's consent or agreement on any further changes or corrections. The plan for the upstairs playroom area of the addition depicted that a bathroom or half bathroom was to be located at the southern end of the addition above the entrance to the new garage area in the southwest corner of the upstairs playroom area. The plans depicted a double window in the south wall of the upstairs playroom directly over the garage doors. During the course of the construction, the Respondent discovered that in order to construct the bathroom of the size, dimensions and location depicted on the plans, the bathroom would encroach or project in front of the attic playroom window if placed in the position depicted in the plans. The plans, themselves, do not show such an encroachment. Either the plans are incorrect in depicting the location and dimensions of the bathroom and the window in positions relative to each other, or the Respondent erred in interpreting the plans and in constructing the bathroom and window in deviation from the plan drawings. In any event, the Respondent did not offer explanation to nor seek permission from the owner for the change in location of the bathroom. The Respondent told Dr. Reeves that the bathroom would have to be moved because it would encroach on the attic playroom window, but did not tell him that the location was being changed until the bathroom was already being framed in the new location at the other end of the attic playroom on the same west wall. Thus, the owner did not approve of the relocation of the bathroom, but felt that there was no practical choice in having to accept its relocation at that point because its construction had already progressed to the point where it would be impossible to relocate it once again to its originally depicted position. Thus, based upon the Respondent's references to the apparent encroachment of the bathroom over the attic playroom window space, the owner acquiesced in the relocation. It then developed that, as a result of relocating the position of the bathroom, the bathroom door would not open sufficiently to meet building code requirements regarding the distance and space to be allowed for the opening of doors. The bathroom door still does not open fully as a result of the bathroom relocation. This is because the bathroom door is too close to an opposite partition wall and contacts that wall when opened so that the door cannot open fully. As a result of relocating the bathroom, the wall in question had to be also relocated so that the bathroom door would open wide enough to meet code requirements. As a result of the wall being relocated, patching of the plaster-type of wall coating was required. That patching resulted in a substandard wall finish with a sort of light adobe texture changing to a sort of heavy adobe stucco texture within six feet of wall space on the same wall. This is unsightly in appearance and not in accordance with the standard of construction for contractors in Leon County and not in accordance with the quality of construction which the owner was told he would receive in the new addition, as compared to the quality of the existing house. All of this resulted from the Respondent's failure to timely anticipate the bathroom location problem and inform the owner. The Respondent also failed to reconcile the plans with existing dimensions prevailing at the site in relation to the existing construction to which he was connecting the addition. This resulted in the necessity for relocation and modification of the stairwell and stairs from that originally depicted in the plan drawings. A stairwell to the attic playroom was constructed after three attempts. The last attempt, after redrafting of the plans, finally achieved a workable arrangement for the stairwell and stairs, but was not in conformity with the originally drawn plans. The draftsman for the stairwell and stairs met with carpenters on the job site to assist in resolving discrepancies between the measurements depicted in the existing structure of the house and the plans. The draftsman also had to return a second time to meet with the owner and the carpenters at the owner's request to assist in adequately locating, designing and constructing the stairwell and stairs. The Respondent was not present at either of those two meetings. The owner did not find out that the stairs had to be relocated until framing of the stairs was well underway. The Respondent failed to adequately anticipate measurement discrepancies between the existing house structure and the planned addition in interpreting the plans for the stairwell and stairs and in carrying them out. The Respondent located plumbing above the floor level in the addition and in the renovated garage of the addition. This consisted of the sanitary sewer drain line from a newly constructed half bathroom. The plans had not depicted constructing the plumbing or sewer drain line above floor level in an exposed fashion. Because the sanitary sewer line was installed above the floor level of the addition on the ground floor, it had to be "boxed in" or surrounded by a plumbing chaise where the sewer line went through the office area of the new addition. This caused a condition incompatible to some extent with the design of the structure and the owner's intent for that space. It was to be a portion of his office area, but the plumbing chaise to conceal the above floor sewer line resulted in the file cabinets, planned to be installed in that area, resting approximately six inches out into the room away from the wall, resulting in less usable floor space in that office area. Additionally, the same sewer line was exposed in one corner of the garage area of the addition suspended above the floor before it exited through the foundation wall of the building at a point above floor level in the garage. The plans did not depict such an exposed sewer line, and the owner was not aware that the sewer line would have to be located inside the addition or the renovated garage portion of the addition above floor level until he discovered them already installed or being installed in that fashion during construction. When he discovered them that way and questioned their location and configuration, the Respondent explained that in order to achieve sufficient "fall" or slope for the gravity sewer line to the septic tank, to which it was routed, the sewer line had to be constructed above floor level. While this was shown to be true and resulted in the owner being economically benefited by using the same septic tank which was already installed for the house, he was not given the opportunity to choose whether to construct them in that fashion or to, in a more expensive way, cut through the concrete floor and adjacent foundation wall to go immediately outside the building from the bathroom. This method would have been more expensive, but would have been more aesthetically pleasing. The point is that the owner was not given an opportunity to consider this departure from the plan drawings before the construction of the sewer line had progressed to the point where it was impractical to change the design and location of it once again. Roof framing trusses are very critical construction components. Roof trusses are pre-engineered, pre-constructed rafter and attendant bracing assemblies which are built by a truss manufacturer, transported to and installed on the job site. Their design, construction and placement on the roof structure of a building is to be accomplished in exact accordance with building plans and the truss manufacturer's design and specifications in order to avoid the risk of failure due to downloading of the weight of the roof of a building, as well as failure during wind uplift in storm conditions. Thus, structural engineering and contracting standards with regard to truss manufacture, installation and repair must be strictly adhered to, as depicted in Sections 1708.2.1 and 1708.2.3 of the SBC, in effect in Tallahassee and Leon County. Trusses installed over the addition on the Reeves' residence were improperly cut and after the cut was discovered, were improperly repaired by the Respondent and his subcontractors. In the course of a framing inspection, the inspector discovered that the "heel end" of one truss over the new garage addition at the Reeves' residence had been cut to accommodate the location of the top of the brick veneer wall on the outside of the framed wall of the new addition. That is to say, the bottom horizontal member of the truss projected outward from the framed wall too far and had to be cut or "notched out" to allow it to be installed in relation to the height of the top of the brick veneer wall immediately adjacent to it and to the framed wall. The Respondent did not have a qualified superintendent on the job at the time of the inspection nor was the Respondent present. When later confronted by the building inspector with this problem, the Respondent either denied its existence or had no knowledge that the truss end had been cut. He did, however, agree to repair them immediately. The repairs to the trusses were specified by engineering personnel of Alpine Engineering, who designed and built the trusses. The repairs were to be accomplished by the addition of metal reinforcing plates at certain critical junctions of the truss members. The repairs were not carried out properly, however. The corrective metal plates specified by Alpine Engineering were not properly placed and nailed. Adherence to truss specification, both as to design, installation and repair, if necessary, is critical to the structural integrity of a building, especially under downloading conditions and storm wind uplifting conditions. The failure to properly install this truss, including the cutting of it at a critical point to make it fit, and more especially, the incorrect repair after the defect was discovered, constituted a departure from generally-accepted structural engineering and contracting standards prevailing in Tallahassee and Leon County in the construction industry. It constituted a specific violation of the above-cited Sections of the SBC. The Respondent also allowed a negative grading condition to exist in the vicinity of the garage door opening on the west side of the garage. In effect, a negative slope existed in this area causing rain water to flood into the front portion of the garage. This apparently resulted from inadequate supervision of the subcontractor who performed the grading of the ground surface around the addition to the house. The grading behind the garage addition on the west side, combined with the negative slope of the driveway concrete pad in that area allowed water to flow into the garage. This condition was aggravated somewhat by the owner's failure to timely effect sodding of the graded area, as the subcontractor had recommended. The subcontractor had recommended that the area be sodded completely so as to retard the flow of water and the attendant erosion of soil from the grade behind the garage and driveway. The condition was ultimately alleviated by the owner, himself, when he built a small retaining wall of brick to redirect the flow of water away from the negatively sloped area of the driveway pad. In addition to the problem discussed above concerning the improper truss installation and repair, the Respondent also failed to insure that the roof on the new addition was properly supported and framed. The "common-framed" portion of the new roof (that part not constructed with pre-engineered trusses) joined the factory-built trusses on the existing garage. At the point of that juncture, an unsightly bulge in the finished shingle level or plane of the roof occurred, which was itself due to poor construction by failure to insure that proper measurements were taken and that the common-framed members were cut to the proper measurements so that the level of the common-framed portion and the factory-truss-supported portion of the new roof would line up in the same plane. When this condition came to the Respondent's attention, after the roof was completed, either through remonstrances of the owner or through advice by his carpenters, the Respondent promised the owner that they would correct the condition by "shimming up" or raising the common-framed roof portion so that the bulge would be eliminated and the common-framed portion and the truss-supported portion of the addition's roof would be level with each other. After the shimming or raising of the common-framed portion of the roof was accomplished. and after the "final" framing inspection, the building inspector made another inspection visit to ascertain if proper repairs had been accomplished at the bulged roof area. He observed that the roof had been raised by the placing of the shims or wedges under the ends of the common-framed rafters between the ends of those rafters and the decking of the pre-existing roof on the original portion of the house. (See Petitioner's Exhibit I, page 101; Petitioner's Exhibit F, page 63, photo 7, page 64, photo 10 in evidence) The lifting of this portion of the roof by the installation of shims accomplished a favorable cosmetic result in the exterior appearance of the roof line. It was accomplished at the expense of structural integrity, however. The shimming of the common-framed roof rafters created a dangerous risk of wind uplift during storm conditions because the holding power of the nails was largely nullified at the end of the rafters. This is because the installation of the shims resulted in the nails being removed approximately half their length where the ends of the rafters were "toenailed" into the old roof decking. In permitting the installation, and then the "shimming up" of the common-framed portion of the new roof, resulting in the partial pullout of the nails attaching the ends of the common-framed rafters to the existing roof deck beneath, no apparent effort was made (by lifting the old shingles) to ascertain if the joint of the new, common-framed rafters was with the existing rafters beneath the old roof or merely nailed through the plywood decking of the existing roof. This latter condition would result in little support for the new common-framed portion of the roof and almost no resistance to wind uplift, especially in consideration of the fact that the addition of the shims under the new rafters greatly reduced the holding power of the rafter nailing. This constitutes a clear violation of SBC 1701.1.1, requiring that wood members and fastening comply with and conform with good engineering practices. Additionally, the common-framed rafters were allowed to be set on 48- inch "centers," or a distance of 48 inches between the center of each rafter, instead of the Code required 24 inches. The plywood decking for the roof has a load rating only allowing a maximum of 32 inches of unsupported span for that decking. The inspector later required the installation of additional rafters between each of the existing common-framed rafters installed by the Respondent with the addition of horizontal purlins, or two-by-four bracing members, between the rafters in order to prevent sagging of the plywood decking at the decking joints. Lumber used for such framing is stamped with codes that correlate to the use and load tables in the SBC for the permissible uses of lumber for framing, including roof framing. The failure to set roof rafters on two-foot centers under such circumstances is a substantial departure from prevailing contracting standards in Tallahassee and Leon County. A ridge beam support column was installed beneath the ridge beam to which the common-framed rafters attached at the center, highest point of the common-framed portion of the addition's roof. This support column was established by the Respondent's testimony, as well as that of the framing carpenter involved, to be unimportant and not intended as a structural member, being merely placed there to support and hold the rafters in alignment until they had been properly nailed. The problem with it, however, is that it was poorly nailed with only three nails connecting it; and it was left in place after completion of this portion of the roof. It was merely nailed to the roof decking beneath without a supporting rafter member directly under it to bear the downward load exerted on it by the weight of the roof system above it. If construction of the common-framed portion of the roof had been performed properly, there would be no downward loading on this column; and, indeed, it would be unimportant. In the instant situation, however, the ends of the rafters, as discussed above, had been shimmed up in such a way that they were no longer securely nailed at each end. This permits the weight of the roof system, and anything on that roof above it exerted in a downward fashion, to allow potential spreading of the feet or ends of the rafters where they attach to the pre-existing roof beneath, so that they cannot bear all of the downward load of the roof. This, in turn, puts a downward loading on this column which, due to the incorrect rafter framing and installation, results in it being a support column even if it was not intended to be. It is inadequately nailed to be a support column and is inadequately attached because it is attached merely to the plywood roof decking and shingles underneath it, instead of to a pre-existing rafter under the pre- existing roof decking. The potential for horizontal spreading of the ends of the common- framed rafters where they were shimmed up could be alleviated if the proper horizontal collar beams had been in place running between the rafters, in a horizontal plane, from one pitch of the roof to the other in the common-framed portion of the roof. These were left out, however. Thus, there is no real preventive measure to prevent the spreading of the rafters and the potential that the inadequate toenailing at the ends of the rafters may become loosened with the downward loading on the roof over time. Thus, the failure to properly attach the ends of these common-framed rafters to supporting members beneath the pre-existing roof decking and to adequately nail them, coupled with the failure to install the correct collar beams between the two legs of the rafters, as well as the use of the ridge beam support column in the way in which it was used resulted in the common-framed portion of the roof on the addition being extremely inadequate in terms of complying with correct and generally-accepted building and engineering standards prevailing in Tallahassee and Leon County under the purview of the SBC. Additionally, common-framed rafters in this area were severely bowed or bent near the new roof line, due to the excessive length of the rafters used. In other words, the two-by- four section rafters used span too great a length for their cross section volume and density to adequately support the roof load they have to carry. The required cross-section for each rafter spanning the length required should have been 25 cubic inches. They were only of 8 cubic inches cross section. The potential consequence is thus severe bowing of the rafters and eventual roof failure. Because of the inadequate toenailing of the rafter ends allowed by the Respondent, the potential uplift load from high winds exceeded the dead load downward of the weight of the roof itself on the rafters by some 200 pounds at the nailing points at the ends of the rafters. That is to say, the storm wind standard in the building code results in an uplift loading on such a roof which, when considered with the dead load of the roof in a downward direction, results in an uplift potential of 200 pounds at the nailing points under the storm wind velocity condition contained in the subject standard in the SBC. Thus, there is a real potential for failure of this portion of the roof in the event of hurricane-force winds. The Respondent additionally allowed the construction of point loadings on shims under the roof framing, where the roof framing joins the vertical wall framing, which actually bear on the brick veneer exterior wall. Brick veneer is intended to be a wall finish or covering rather than to provide structural support for the wall to which it is attached or the roof above it. It can easily fail if it supports roof loading. The downward loading from the roof members at the point in question was 400 pounds per square inch. The brick veneer wall was constructed with standard "type M" mortar, which has a standard strength of 300 pounds per square inch. Thus, the bearing of "down loaded" roof weight onto the brick veneer wall, transmitted to that brick veneer wall by the use of shims or wedges on top of it bearing under the roof framing members, can result in failure of the brick veneer wall. Use of shims in this fashion violates Section 811.1.2 of the SBC It is true that the Respondent himself did not perform the roof framing in the manner discussed above, but rather it was performed by his framing and carpentry subcontractors. It is also true that the Respondent was not on the job every day, observing the installation of each roofing member, but rather had to supervise other jobs in other areas of the City or County, as well. It is common practice by contractors to have more than one job proceeding at the same time, such that their supervisory time has to be divided between jobs. The contractor is, however, responsible for the quantity and quality of work performed by his subcontractors and has a duty to supervise them adequately. Even if the deficient framing was done without the Respondent's knowledge, he had a responsibility to promptly see that it was corrected. This responsibility was not fulfilled in the instant situation, and the corrections called to his attention by the building inspector were either not made, or were deficiently performed when made, in the manner found above. Either the Respondent's supervision of the job was grossly inadequate or he lacked a basic knowledge of proper roofing and structural framing standards necessary for safe residential roofing construction or a combination of the two factors. The finished carpentry and plaster work in the addition was deficient in a number of respects. This work was performed by the Respondent's subcontractors and, to some extent, by the Respondent, himself. The built-in bookshelves in. the office area were trimmed with two different types of mismatched trim moulding. Additionally, the shelves warped because they spanned too great a distance for the strength of the lumber used for the shelves. This resulted in them bowing severely when loaded with heavy books, and on some occasions, resulted in them falling when loaded with books. The Respondent was aware that these shelves would be used for Dr. Reeves' books before he constructed the shelves and yet constructed them of materials and in such a manner that they would not adequately bear the weight of the books placed on them. Standard building practices require disclosure to an owner at any point when design materials are not appropriate to the construction element in which they are to be used. In using materials for the bookshelves that would not adequately bear the weight which they were designed to bear, the Respondent either negligently did not insure that lumber of the proper strength and dimension was used to bear the weight and see that it was properly braced or, alternatively, did not know that the type of lumber he used would not sufficiently bear the weight of the books, which he should have foreseen would be placed on the shelves. In response to Dr. Reeves' complaint about the quality of the bookshelves, the Respondent merely indicated to him that the materials used were the highest quality and that the shelves were constructed properly. He then suggested placing the shelf boards flat on the floor with weight on them to straighten them out. This response ignores the fact that inadequate materials and construction methods were used in the bookshelves in the first place, both as to the necessary structural strength and as to the appearance of the bookshelves, which was clearly substandard in view of the mismatched trim moulding used around the top of the shelves. Additionally, when the attic playroom windows would not close because of the improper sizing of the windowsill, the Respondent sent a carpenter, who chiseled out recesses in the windowsill to accommodate the window handle so that the window could shut in a downward direction and lock. None of the other windowsills in the house match the sill in the attic playroom windows, because it was not necessary in any of the other windows to chisel out a recess for the window handles to go down far enough for the window to lock. This problem could have been remedied by the removal of the bottom window casing member and lowering it a sufficient, small amount so that when the windowsill was replaced on top of it, adequate clearance for the handles would still exist when the window was locked so that a person's hands could fit into the window handles to raise and lower the window. Instead, the Respondent took an expedient approach at remedying this situation by chiseling out a space in the windowsills for a person's hands and then attempting to cosmetically improve it by suggesting the installation of metal cups in the windowsill to conceal the chiseled out portion. Additional finish work in the addition, which was substandard, involved the wall patching in the stairwell and the patching and finish work around the baseboards in the stairwell, which was substandard and of a rough appearance. The skylights were not finished in the addition in a way to match the skylights in the existing house, which had been trimmed out with proper moulding and covered with a light-defusing plexiglass, which was left off the skylights installed in the addition. More importantly, the handrail on the steps in the new addition was merely anchored through the sheetrock wall with toggle bolts or screw anchors, rather than being fastened or anchored in the wall studs themselves behind the sheetrock, which would have been a strong connection to pine lumber, rather than in weak plasterboard-type sheetrock material, which was the actual result. Because of the failure to attach the stair handrail to the studs in the wall, it would be possible for a person using the handrail to fall down the stairs and be injured. In fact, the handrail actually fell off the wall eventually because of this inadequate attachment. It is noteworthy that the Respondent, himself, personally participated in the installation of this handrail in a deficient fashion. The finish grade outside of the garage wall on the west side of the garage portion of the addition was higher than the floor of the garage, that is, the soil in the finish grade came up higher on the outside of that wall than did the concrete floor of the garage on the inside of that wall. This was doubtless the result of the subcontracting grader's efforts to create a valley or a slight swale around the house a short distance away from the wall so to conduct water away from the house. What resulted, however, because of inadequate reverse sloping and because the wall was inadequately waterproofed, was that water seeped through the wall in a manner which could eventually rot and deteriorate the interior wall studs and the sheetrock on the inside wall of the garage. A water line or stain is visible six inches above the floor line on the interior wall of the garage at this point, which indicates that moisture is migrating through this wall. This is a departure from prevailing standards of practice in the construction industry. An additional severe defect in the construction of the addition occurred in conjunction with the installation of the palladian window discussed above. The Respondent permitted the use of doubled "two-by-sixes" nailed or "scabbed" together as a header member or plate spanning the top of the palladian window opening in the garage. Although double two-by-sixes are stronger than a single two-by-six or even doubled two-by-fours, the doubled two-by-six member was not sufficient to bear the load from the flooring and roof system bearing downward from the room and roof above. Doubled two-by-twelves or their equivalent was required for such a load-bearing-span. When the building inspector visited the job site and observed the doubled two-by- sixes, he issued an oral correction notice to the Respondent's subcontracting framing personnel on the job. When he returned to inspect the job later, after sufficient time had elapsed to make the correction, he found that the two-by-sixes were still in place and the sheetrock installers were already covering the interior walls of the garage. This would soon have the effect of concealing the inadequate, doubled, two-by-six header. Because of this, the building inspector immediately issued a stop work order on the job. If the Respondent had properly carried out his duties in supervising this job, he would have been aware that the two-by- sixes had been substituted for two-by-twelves or their equivalent. Even if he had not initially realized that the two-by-sixes were installed and were inadequate (although a competent contractor should have), he should have seen that the two-by-sixes were replaced when the building inspector called it to his or his subcontractor's attention. A stop work order should not have been necessary in order to effect safe construction of the window header in question. Eventually the problem was corrected by having the truss company engineers involved design a steel "flitch plate" to adequately construct and install a safe window header in the space that was available. This was done by sandwiching the steel plate in-between two two-by-sixes, which then made an adequate header support member easily installed in the available space. The Respondent either negligently failed to note that the use of the two-by-sixes was inadequate or failed to adequately supervise the framing work on the job. Alternatively, if the Respondent knowingly allowed the available space for the header at the top of the window too dictate the size of the header, rather than using Code required window-opening span tables to calculate an effective alternative, he would have engaged in misconduct in the practice of contracting. The record does not clearly reflect, however, that he knowingly allowed the two- by-sixes to be used for this reason, although it does establish that he should have been aware of their use and of their inadequacy and promptly acted to correct it when it was called to his attention, which he did not do until the stop work order was issued. The Griggs House On November 10, 1986, Dr. Griggs, after having solicited proposals for construction of his residence, accepted a proposal from the Respondent to construct a residence for him and his wife at 3552 Trillium Court, Tallahassee, Florida. The cost of the construction was to be $170,090.00. The original proposed cost, prior to the entry of the parties into a contract, was $188,000.00. Certain deletions and changes were made, which resulted in the ultimate contracts price of $170,090.00, however. Construction commenced on the Griggs, residence in February of 1987. A certificate of occupancy was issued in October of 1987. During the course of construction, certain deficiencies in the house were communicated orally and in writing to the Respondent by the Griggs. These included posting of letters and the leaving of "post-it" notes on the spot of certain areas of construction which the Griggs believed to be defective or which they wanted changed for some reason. The frequent changes in construction elements proposed by the Griggs, many of which resulted from changes of mind by their concerning how they wanted certain elements of the construction performed, culminated in a strained relationship between the Griggs and the Respondent. Ultimately, they sent a number of registered letters to the Respondent concerning their dissatisfaction with the manner in which the project was being completed and concerning items they wished performed by the Respondent. Some of these letters were returned undelivered and unopened. Their differences culminated in Dr. Griggs' decision, after ten months of construction, to finish the house himself because he felt that the Respondent was not responding to his requested corrections or changes. The contract had specified that the Respondent had six months to complete the house. Some of the delay, at least, was the responsibility of the Griggs, caused by their requesting various changes in the way the house was constructed and to be constructed. In any event, after Dr. Griggs terminated the relationship with the Respondent, he called the Tallahassee Builders' Association, lodged a complaint, and received the recommendation of that Association that he hire an engineer to review the construction performed to date. Ten days after Dr. Griggs received a letter from the Respondent stating that he was leaving the job, Dr. Griggs gave the Respondent a letter terminating his contract. A number of significant construction deficiencies and errors exist in the manner in which the Respondent constructed the house. These include problems with the foundation and basement wall construction, certain framing deficiencies in the walls and roof, the front porch, inadequate water damage protection, and improper installation of correctly engineered framing components. These deficiencies are treated in detail below. The Respondent fabled to install adequate steel reinforcement and to adequately fill cores or cavities in the concrete blocks of the outside, western-most basement wall, in that area of the wall where backfall or earth rested against its outside surface. This wall was constructed of 12-inch concrete blocks, with the normal cavities or cores in each block. The blocks were laid by the brick mason in "courses" or rows, one block course on top of the course below it to a height of nine feet. Each core thus represented a vertical cavity of approximately nine feet in the wall. The architect's plans called for inserting vertical steel reinforcing rods or "rebar" in these cores or cavities, 48 inches apart, pouring them full of concrete, with the vertical rods extending to the top of the nine-foot wall where a solid concrete lintel was to be poured over and around them. The plans also called for horizontal steel reinforcing rods to be placed at two-foot intervals from the bottom to the top of this wall in the area of wall where backfill or earth was retained on the outside of, and bearing against, the wall. Although vertical steel dowel rods were installed from the foundation footing extending into the vertical concrete block wall in this west wall, they only extend in the case of each such dowel, from two feet, three inches to 36 inches above the foundation footing. The plans call for each vertical rod to extend the full height of the nine-foot wall where earth bears against it. (See Respondent's Exhibit 10 and Petitioner's Exhibit AA in evidence, as well as the testimony of Martin Page, Engineer). None of the vertical steel rod reinforcing in the 12-inch block wall was present from the bottom to the top of the nine-foot wall. None of it extended vertically more than three feet above the footing. Additionally, the cores of this basement wall were not poured solid with concrete, as specified in the plans for the earth-retaining portion of the wall. In fact, less than 50% of the cells in the earth-retaining portion of this wall were poured solid. The test corings performed by Ardiman & Associates, depicted in Respondent's Exhibit 10 and in the testimony of Martin Page and others, establishes that, through this coring method and by visual inspection thereafter, this reinforcing in the wall was missing in large part. Nearly all of the specified horizontal rebar steel was also omitted, although the Respondent maintained that he used "durawall" material on every two courses of block, instead of the specified horizontal rebar steel. He maintained this was equal to the horizontal steel as an adequate reinforcement. This was not established to be adequate, however, in terms of proper engineering and construction and, in any event, was not in accordance with the plans. If it was impossible, as the Respondent maintained, to put the horizontal steel in the mortar joints because of lack of sufficient space between the blocks in those joints, he should have called this to the architect's attention and obtained an alternative solution approved by the architect who drew the plans. Construction in this manner, for the earth-bearing portion of the west wall, renders it deficient in the structural strength demanded by the design and renders it of less structural integrity in the future with possible cracking and leaking to result. The potential for future damage caused by the inadequate reinforcing in the wall is alleviated somewhat by the fact that the earth retained by the wall does not extend to its full height, nor does the entire wall have to support earth loading. Only 28 feet of the wall has earth backfill extending upward for a portion of the wall's height. In any event, however, to correct this failure to follow the architect's design (which was adequate as designed) will be costly and time consuming, although it was not clearly shown that the problem is of sufficient seriousness to justify constructing a retaining wall on the outside of the present west basement wall at issue, as the Petitioner maintains. The Respondent constructed a front porch on the residence by placing the brick forming the porch floor over felt tarpaper and plywood, as well as framing members which were not "pressure treated." Since they are not pressure treated, they are susceptible to water-induced rot damage. The felt paper, itself, is not impervious to water and is not adequately waterproofed. Accordingly, the non-pressure treated wood beneath the brick and felt paper, including structural members under the porch, are already rotting; and the bricks and mortar of the porch are loose due to being placed on an unstable, water-damaged surface. The water runs down into and erodes into the basement space below and adjacent to the porch location. The plans originally called for a roof to be placed over this porch floor which would have alleviated the water damage presently being caused. Because of a change agreed to by the Griggs and the Respondent to place three windows above this porch, the Respondent deleted the porch roof. Although the deletion of the porch roof may, indeed, have been necessitated by the addition of the three windows which the Griggs desired, the Respondent failed to explain to them the consequences of deleting the protection of the roof over that porch; and, indeed, knowing that the roof was to be deleted, the Respondent should have taken steps to insure that the porch floor was constructed of waterproof, stable materials. As constructed, there is a load-bearing wall on part of the support system that underlies the brick porch, creating a dangerous situation over time because of weakness caused by water- induced wood rot. The construction of the porch was shown not to comport with the SBC, particularly Section 1703.15, because it was not constructed with pressure- treated wood or in the alternative, because it did not have an impervious material between the brick porch floor and the wood beneath. This method of construction also violates SBC at Section 1409.4 because the masonry floor rests on a combustible wood material. Additionally, the exterior trim on the house lacked proper flashing and where it contacted concrete was not pressure treated. The windowsills were improperly installed so that the drip edge on the window casing could not function properly in conducting water away from the house. Dr. Griggs requested that the Respondent construct a crawlspace storage area adjacent to the finished portion of the basement, and the Respondent agreed to do so. This space was not included in the original plans, but the Respondent agreed to construct it at Dr. Griggs' behest in order to accommodate Griggs' wishes. He never informed Dr. Griggs, however, that in order to get sufficient space in the storage area, the Respondent would have to excavate the earth in the area in such a way that the floor slab poured in this basement crawl space would be significantly lower than the existing perimeter foundation footing. This resulted in exposing the soil under the existing foundation footing above the poured slab. This allowed the soil under the foundation footing to erode due to passage of water from outside the house, particularly from the area of the front porch, so that soil was eroded from under the foundation footing in this area. The creation of such a condition ir1i the crawlspace storage area is a serious structural problem. It could cause, if allowed to progress uncorrected, cracking of the foundation or collapse of the walkway above it on the outside of the house. This condition is a serious departure from prevailing standards of construction practice for similar foundations in Leon County and violates the SBC, specifically Section 1302.1. This provision requires that the bottom of foundation footings and foundations extend no less than 12 inches below the finished earth grade. By excavating out and installing the slab floor beneath the foundation footing, the result was that the foundation footing was resting approximately 12 inches above the finished grade on the inside of the footing. The earth beneath the exposed footing eroded away until the matter was corrected by the installation of brick and cement "parging" to retain the earth beneath the footing. This corrective measure was specified by the architect for the job and was eventually accomplished. In the same area of the basement crawlspace, the Respondent also permitted non-pressure-treated bottom plates to be installed in direct contact with the concrete, which can promote water-induced rot in violation of Section 1703.4, SBC. Although the Petitioner charged that the basement floor slab, itself, was not poured within an acceptable tolerance of thickness, the evidence, consisting of the results of the Ardiman engineering investigation of this matter, in evidence as Respondent's Exhibit 10, showed that the basement floor slab averaged approximately 3.97 inches thick, which is sufficient to meet the building code requirements. It was shown, however, that the slab does not rest on top of the foundation footings on the southwest or north portions of the foundation, as specified in the plans. Although the Respondent maintained that pouring this slab as a monolithic slab with thickened portions under the load- bearing areas successfully addresses this problem, in fact, the evidence shows that some of those load-bearing, thickened portions of the slab are not the full required ten- to twelve- inch thickness, but rather are on the order of six to nine inches thick, with reinforcing steel not encased in concrete at at least one point. This is an insufficient footing under the interior walls of the basement. Thus, although the slab is of a sufficient average thickness to meet the building code requirements, the thickened portions of the slab are not sufficient to support load-bearing walls within the context of compliance with good construction and engineering practices established by the Petitioner's expert witnesses. A floor truss or joist was installed upside-down, due to a subcontractor's mistake. In order to properly comply with engineering specifications, the addition of "gusset" plates was required according to the engineering specifications furnished by the truss manufacturer. The repair was appropriately made. Misplacement of this truss should have been readily apparent to the contractor if propel supervision had been effected on the job. The particular circumstance of the truss placement, configuration and loadbearing requirements made structural failure as a result of its upside-down placement unlikely, however. The Respondent failed to insure, by adequate supervision, that certain walls were properly framed according to the architect's plans. In this respect, the ceiling height for the basement was designed in the plans to be nine feet; but the Respondent allowed the walls to be framed in such a way as to result in an eight-foot ceiling height. The upper floor is framed to accommodate a nine- foot ceiling according to the plans, however. Three load-bearing door headers (load-bearing members spanning the top of door openings in the basement) were constructed in such a way as to not be in contact with the wall framing above or the vertical supports or "cripples" below. The cripples were cut too short. The owner was required to take the remedial measure of hiring a carpenter, who jacked up the support headers above these door openings to the correct load-bearing positions and then replaced the cripples with cripples of proper length so that they would bear properly against the headers and prevent any sagging or cracks from developing in the walls, or improperly-fitting doors above. This could result from sagging of the wall plate, wall and floor above these improperly fitted headers and cripples. Additionally, horizontal purlin supports needed to be added to interior walls between studs in the basement as a remedial measure, after the Respondent ceased work and left the job site, in order to prevent bowing of studs from downward loading. The endmost stud of a non-load-bearing wall in the basement contacted or "butted" against a concrete block wall. It was not treated to resist moisture-caused rot. The use of non-pressure-treated studs at points where that wood must bear against concrete is contrary to prevailing standard building practices, since only pressure-treated rot-resistant lumber should be in contact with moisture-prone concrete. This condition had to be repaired by a carpenter retained by Dr. Griggs. Common-framing was constructed on top of and between two trussed roof areas. The roof joists were insufficient for the spans covered,. and the bearing points of the ridge beam were improperly braced. The effect of this was to create a soft or flexible roof section in this common-framed area. This means that with a live load atop the roof, such as a person walking on the roof, the roof would `flex, which can cause failure over time as the roof ages due to flexing, which will cause leakage. The original plans for the roof call for a polynesian-type roof line, that is, with gables and a compound or cantilevered pitch. The home was built, however, with a conventional, straight-pitched roof. It was not established, however, that Dr. Griggs and his wife had never authorized the change from the polynesian roof line to a straight pitch. Rather, there had been discussions between the Respondent and the Griggs before entering into the contract about ways in which they could save costs. In response to these discussions, the Respondent had Ben Sheppard, the draftsman for the truss system, redesign the roof system to depict a straight or conventional pitched roof. The weight of the evidence indicates that the Griggs approved of this change in the roof before entering into the actual contract. Upon questioning of Dr. Griggs by roof truss installer, Reggie Brown, when the trusses were delivered to the site and when the trusses were installed on the upper floor framing, concerning them not providing for the cantilevered, polynesian pitch, Dr. Griggs acknowledged that he and the builder had agreed to the different design. The testimony of Marvin Moran, a general contractor and the superintendent of the job, indicates that on an occasion when he, Reggie Brown and Dr. Griggs were present together on the job site with the construction plans, and were discussing the roof design, at the sheathing stage, Dr. Griggs again acknowledged that he and the Respondent had agreed to the reconfiguration of the roof. This reconfiguration was taken into account in arriving at the final contract price depicted above. While the best practice in the construction industry indicates that an owner and a builder should execute a written change order for such a major alteration of a construction project, it is common practice for such changes to be done by verbal agreement. In any event, the preponderant evidence of record indicates that this change was effected prior to the formal contract involved herein being entered into by the Griggs and the Respondent. Finally, the Respondent did not insure that proper flashing was installed between the rear deck surface and the house. The flashing was necessary, especially since the rear deck level was the same level as the interior floor of the house and was necessary to prevent water from penetrating the house walls at the point where the decking joins the house. Although caulking was used to substitute and was performed with an appropriate material, the mere use of caulking in such an application is not accepted, good building practice and does not comport with appropriate building and contracting standards in the Leon County construction community.

Recommendation Having considered the foregoing Findings of Fact, Conclusions of Law, the evidence of record, the candor and demeanor of the witnesses, and the pleadings and arguments of the parties, it is therefore, RECOMMENDED that a Final Order be entered suspending the Respondent's building contracting license for one year and requiring the Respondent to complete such continuing education courses, in those areas of residential contracting represented by the deficiencies found herein, as the agency deems appropriate. DONE AND ENTERED this 24 day of October, 1990, in Tallahassee, Leon County, Florida. P. MICHAEL RUFF 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 24 day of October, 1990. APPENDIX TO RECOMMENDED ORDER IN CASE NO. 89-2954 Petitioner's Proposed Findings of Fact 1-17. Accepted. 18. Accepted, except to the extent that the clear and convincing evidence of record does not establish that representations made by the Respondent were fraudulent because it has not been established that he made any misrepresentations knowing at the time that they were made that they were false or that he did not intend to fulfill them. 19-23. Accepted, except that the first sentence of No. 23 is a conclusion of law and not a proposed finding of fact. 24-27. Rejected, as subordinate to the Hearing Officer's findings of fact on this subject matter. Accepted. Accepted. Rejected, as constituting a conclusion of law, rather than a proposed finding of fact. 31-33. Accepted. 34. Rejected, as constituting a conclusion of law, rather than a proposed finding of fact. 35-42. Accepted. 43. Rejected, as constituting a conclusion of law, rather than a proposed finding of fact. 44-57. Accepted. 58. Rejected, as subordinate to the Hearing Officer's finding of fact on this subject matter, in that although the bookshelves were clearly substandard, there has been no proof that the Respondent made any fraudulent misrepresentation as to the quality of materials and construction, but rather differed in his opinion of the quality of the materials and workmanship from the opinion of Dr. Reeves and was negligent in the selection of materials and in the use of them in constructing the shelves. 59-68. Accepted. 69-75. Accepted. Rejected, as subordinate to the Hearing Officer's findings of fact on this subject matter. Rejected, as subordinate to the Hearing Officer's findings of fact on this subject matter. 78-84. Accepted. Rejected, as subordinate to the Hearing Officer's findings of fact on this subject matter and as not supported by clear and convincing evidence of record as to the matter of basement slab thickness itself. Rejected, as subordinate to the Hearing Officer's findings of fact on this subject matter. Rejected, as subordinate to the Hearing Officer's findings of fact on this subject matter. 88-93. Accepted. Accepted, but not in itself materially dispositive of the issue concerning the pitch of the roof. Rejected, as subordinate to the Hearing Officer's findings of fact on this subject matter. Rejected, as subordinate to the Hearing Officer's findings of fact on this subject matter. Rejected, as subordinate to the Heading Officer's findings of fact on this subject matter, and as not, in accordance with the clear and convincing evidence of record, in that it is found above that the owners did consent to the alteration in the roof configuration or design. Accepted. Accepted. Respondent's Proposed Findings of Fact The Respondent's proposed findings of fact have all been considered and in some instances, accepted, and in many instances, rejected in the body of this Recommended Order. It is not possible, however, to separately rule on improperly stated proposed findings of fact because the Respondent did not separately state the proposed findings of fact, but rather intertwined them with factual and legal arguments, discussions and recitation of evidence and testimony. Consequently, separate and coherent rulings on individual proposed findings of fact cannot be made. All factual and legal arguements raised in the Respondent's post-hearing pleading styled "Recommended Order" have, however, been considered and weighed in the rendition of this Recommended Order. COPIES FURNISHED: Mr. Daniel O'Brien Executive Director Construction Industry Licensing Board P.O. Box 2 Jacksonville, FL 32202 Kenneth E. Easley, Esq. General Counsel Department of Professional Regulation 1940 North Monroe Street Tallahassee, FL 32399-0792 Robert D. Newell, Jr., Esq. NEWELL & STAHL, P.A. 817 North Gadsden Street Tallahassee, FL 32303-6313 Robert L. Fountain, Jr., Pro Se 2124 Shady Oak Drive Tallahassee, FL 32303

Florida Laws (3) 120.57489.119489.129
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CONSTRUCTION INDUSTRY LICENSING BOARD vs. DAVID MORTON, 82-002861 (1982)
Division of Administrative Hearings, Florida Number: 82-002861 Latest Update: Dec. 04, 1990

The Issue By Administrative Complaint filed on March 24, 1982, the Petitioner, Department of Professional Regulation, charged the Respondent, David Morton, with specific violations of Florida Statutes and Section 81-64 of the City of Hollywood Ordinances. The charged violations generally involve the alleged failure of Mr. Morton to obtain building permits prior to performing roofing repairs and failure to honor and make good certain guarantees that he gave on two roof repair jobs. Petitioner presented the testimony of Carol Glovan, of the City of Hollywood Building Department; Maurice Segall, complainant; and Hershal K. Deuchare, complainant. Petitioner's Exhibits 1 through 7 were received into evidence. Respondent failed to appear and, therefore, presented no witnesses or documentary evidence on his behalf. The counsel for the Petitioner submitted proposed findings of fact and conclusions of law for consideration by the Hearing Officer. To the extent that those proposed findings of fact and conclusions of law are not adopted in this order, they were considered and determined to be irrelevant to the issues in this cause or not supported by the evidence.

Findings Of Fact Respondent is a registered roofing contractor having been issued License No. RC0030473. David Norton was first licensed as a registered roofing contractor in July, 1977. License No. RC0030473 was issued to David Morton qualifying David Morton Roofing, 6422 Southwest 24th Street, Miramar, Florida 33023. Since qualifying David Morton Roofing, the Respondent has changed business addresses but has not qualified any other business name for the purpose of performing work under his license. On May 8, 1980, the Respondent contracted with H. Deuchare to perform repairs on the roof of the Deuchares' home located at 5521 Buchannon Street, Hollywood, Florida. The contract price was $500. The written contract dated May 9, 1980, and attached as a part of Petitioner's Composite Exhibit No. 3, reflects that the name in which the Respondent was doing business at that time was "David M. Roofing." The contract also provided for a one-year guarantee against faulty material and workmanship. Respondent performed the roof repairs on the Deuchare home but failed to obtain a permit for the work as required by Section 81-64, City of Hollywood Ordinances. After completion of the work, the roof continued to leak, and after two calls from Mr. Deuchare, the Respondent came out and attempted to repair the work. Following this repair effort, the roof leaked worse than before. After continuing calls, the Respondent finally got the leak fixed. However, during the course of making the final repair, the Respondent removed tiles from the roof and broke certain of the tiles. Following completion of the repair, Respondent did not put the tiles back in place and refused to come back and replace the broken tiles. The Respondent made a total of three repair visits to the Deuchare home and on the occasion of each call, was very cordial. On April 22, 1981, Respondent contracted with Maurice Segall to perform roof repairs on the Segalls' home located at 4400 Lincoln Street, Hollywood, Florida. The contract price was $1,075.00. The contract which is attached to Petitioner's Composite Exhibit 4 is dated April 22, 1981, and reflects that the Respondent was doing business in the name of David M. Roofing. The contract also provided for a guarantee for seven years against faulty material and workmanship. The Respondent performed the work on the roof but failed to obtain a building permit prior to beginning the work as required by Section 81-64, City of Hollywood Ordinances. A building permit was later obtained after the repairs were completed. After the Respondent performed the work, the roof continued to leak, and after many calls, Respondent sent someone out to make additional repairs. After Mr. Segall initiated an action with the county licensing board, Mr. Morton did come out and do the roof over again and performed the work in a proper manner. Mr. Morton did obtain a proper hermit prior to performing the work the second time. No charge was made to Mr. Segall for the work performed in redoing the job. Following this work, the roof did not leak.

Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED: That the Construction Industry Licensing Board enter a Final Order finding Mr. David Morton to have violated Florida Statutes 489.129(1)(d) and Florida Statutes 489.119. It is further recommended that the Board impose an administrative fine upon the Respondent of $250 and that the Respondent be placed on probation for a period of six months. RECOMMENDED this 11th day of April, 1983, in Tallahassee, Florida. MARVIN E. CHAVIS, 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 11th day of April, 1983. COPIES FURNISHED: Michael J. Cohen, Esquire Suite 101, Kristin Building 2715 East Oakland Park Boulevard Ft. Lauderdale, Florida 33306 Mr. David Morton 6432 S.W. 24th Street Miramar, Florida 33023 Mr. Fred Roche Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Mr. James Linnan Executive Director Post Office Box 2 Jacksonville, Florida 32202

Florida Laws (3) 455.227489.119489.129
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CONSTRUCTION INDUSTRY LICENSING BOARD vs. RICHARD LEE MELVIN, 88-005197 (1988)
Division of Administrative Hearings, Florida Number: 88-005197 Latest Update: Apr. 20, 1989

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

Florida Laws (6) 120.57489.105489.113489.117489.119489.129
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CONSTRUCTION INDUSTRY LICENSING BOARD vs. REX ALANIZ, 85-004181 (1985)
Division of Administrative Hearings, Florida Number: 85-004181 Latest Update: Aug. 06, 1986

Findings Of Fact Based on my observation of the witnesses and their demeanor while testifying, the documentary evidence received and the entire record compiled herein, I hereby make the following Findings of Fact: At all times relevant hereto, the Respondent, Rex Alaniz, held a registered roofing contractors license, Number RC 0042021, issued by the State of Florida, Construction Industry Licensing Board (hereinafter "the Board"). The Respondent's registered address with the Board was initially 1813 Ocean Drive, Jacksonville, Florida, then changed to 23 Seatrout, Ponte Vedra Beach, Florida. The Respondent's license reflected that he was doing business as "Rex Alaniz Roofing and Remodeling Company." During June 1984, the Respondent was doing business as Alaniz & Sons Roofing Company," a name unregistered and unqualified with the Board. Ms. Audrey Kelly met the Respondent through an as placed in the "Westside Shopper," and advertising newspaper in Jacksonville. The ad stated in part as follows: "Raindrops falling on your head? . . . labor guaranteed . . . State Licensed. . . Alaniz & Sons Roofing Company. Rex Alaniz 246-0265 if you have a leak and cannot sleep, check the rest and then get the best for less. . ." Ms. Kelly called the number listed in the advertisement and met with Buddy Clark on June 5, 1984. Mr. Clark stated that he represented Alaniz & Sons Roofing Company. After Mr. Clark looked at Ms. Kelly's roof, Ms. Kelly signed a contract for the repairs to be completed. The contract provided in part that Alaniz and Sons Roofing Company would repair and seal all exposed areas in the roof and that a one year guarantee on workmanship was included. The total contract price was $735. Ms. Kelly paid Clark $200 as an initial payment on the contract. On June 7, 1984, Respondent went to Ms. Kelly's home to repair the roof. After working approximately two and one-half hours, Respondent told Ms. Kelly that he had repaired the roof. Kelly then paid Respondent the balance of $535 which remained on the contract. On June 19, 1984, a light rain fell on Jacksonville and Ms. Kelly's roof leaked again. Ms. Kelly contacted Respondent and Respondent told her that she should wait until it rained harder so that any additional leaks could be repaired at one time. About three weeks later, a heavy rain fell and the roof leaked a lot. After the heavy rain, the Respondent went out and looked at the roof but did not perform any work on it. Respondent told Kelly that the problem was wind damage and suggested that Kelly contact her insurance company. An inspection by Ms. Kelly's insurance company revealed no wind damage to the roof. Therefore, Kelly repeatedly called Respondent, reaching his answering service, but Respondent did not return her calls. The roof continued to leak until Kelly hired another roofer who replaced the entire roof. Ms. Kelly complained to the State Attorney's office about Respondent's failure to honor the warranty on the contract. In April 1984, Mr. Otis McCray, Jr. discovered three leaks in the roof of his home and called Rex Alaniz. The Respondent went out and looked at the roof and informed Mr. McCray that he could fix it. On April 28, 1984, Mr. McCray entered into a contract with Respondent to repair the three leaks in the roof for a price of $500. A one year guarantee was included in the contract. Approximately one week after the contract was signed, Respondent told McCray that the roof had been repaired. McCray then paid Respondent the full contract price of $500. After a rainfall which occurred during the week following the completion of the repair work, McCray noticed that all three of the areas were leaking again. Thereafter, McCray called the Respondent's office approximately 5 or 6 times, leaving messages with either the receptionist or Respondent's answering service concerning the leaks. McCray also had his wife telephone the Respondent, thinking that perhaps the Respondent would respond to "a woman's voice." The Respondent failed to return any of McCray's calls and failed to return to fix the roof. Mr. McCray ultimately hired someone else to put a new roof on his home. In February 1986, the Respondent entered a negotiated plea to the offense of schemes to defraud in the Circuit Court of Duval County, Florida. The failure to properly perform the repairs and honor the promised warranties in the Kelly and McCray projects were included as a part of the offenses charged. The Respondent was ordered to pay restitution to Ms. Kelly and Mr. McCray. As of the date of the hearing, the Respondent had not made restitution to either Mr. McCray or Ms. Kelly. Douglas Vanderbilt, an investigator for the Department of Professional Regulation, attempted to serve papers upon the Respondent in November of 1985. During such attempt to serve the Respondent, Mr. Vanderbilt discovered that Respondent was no longer living at 23 Seatrout Street in Ponte Vedra Beach and had moved from that address approximately two years prior to November of 1985. At no time material hereto, did Respondent report to the Board a change of address from 23 Seatrout Street, Ponte Vedra Beach. The Respondent has been disciplined by the Board for misconduct twice in the recent past. On November 15, 1984 final action was taken by the Board to suspend Respondent's license for one year, effective January 2, 1985. On November 7, 1985, final action was taken by the Board to suspend Respondent's license for ninety days, consecutive to the one year suspension effective January 2, 1985.

Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law it is, therefore, RECOMMENDED THAT a final order be issued requiring Respondent to pay an administrative fine of $1,000 and suspending Respondent's license for a period of five (5) years from the date of the Final Order in this case. Provided, however, that said suspension will be terminated early without further action by the Board, at any time that Respondent shall both pay said fine and provide written proof satisfactory to the Board's Executive Director of having paid restitution of $500 to Otis C. McCray, Jr. and $735.00 to Audrey L. Kelly. DONE and ORDERED this 6th day of August, 1986 in Tallahassee, Leon County, Florida. W. MATTHEW STEVENSON, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 6th day August, 1986. COPIES FURNISHED: Lagran Saunders, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Rex Alaniz 1612-5th Street, South Jacksonville, Florida 32250 Fred Seely Executive Director Construction Industry Licensing Board Department of Professional Regulation P. O. Box 2 Jacksonville, Florida 32201 Fred Roche Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Salvatore A. Carpino, Esquire General Counsel 130 North Monroe Street Tallahassee, Florida 321301 APPENDIX The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on all of the Proposed Findings of Fact submitted by the parties to this case. Rulings on Proposed Findings of Fact Submitted by the Petitioner Adopted in Finding of Fact 1. Adopted in Finding of Fact 3. Adopted in Findings of Fact 9 and 10. Adopted in Finding of Fact 10. Adopted in Finding of Fact 11. Adopted in Finding of Fact 11. Adopted in Finding of Fact 11. Adopted in Finding of Fact 12. Adopted in Finding of Fact 12. 10. Adopted in Finding of Fact 12. 11. Adopted in Finding of Fact 5. 12. Adopted in Finding of Fact 5. 13. Adopted in Finding of Fact 5. 14. Adopted in Finding of Fact 6. 15. Adopted in Finding of Fact 6. 16. Adopted in Finding of Fact 6. 17. Adopted in Finding of Fact 7. 18. Adopted in Finding of Fact 7. 19. Adopted in Finding of Fact 7. 20. Adopted in Finding of Fact 7. 21. Adopted in Finding of Fact 8. 22. Adopted in Finding of Fact 8. 23. Adopted in Finding of Fact 8. 24. Adopted in Finding of Fact 8. 25. Adopted in Finding of Fact 8. Adopted in Finding of Fact 13. Adopted in Finding of Fact 13. Adopted in Finding of Fact 13. Adopted in Finding of Fact 13. Rulings on Proposed Findings of Fact Submitted by the Respondent (None submitted) ================================================================ =

Florida Laws (4) 120.57455.227489.119489.129
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PINELLAS COUNTY CONSTRUCTION LICENSING BOARD vs ROBERT NEAL DAVIS, 05-001973PL (2005)
Division of Administrative Hearings, Florida Filed:Largo, Florida May 31, 2005 Number: 05-001973PL Latest Update: Sep. 30, 2005

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

Florida Laws (5) 120.52120.56120.569120.57713.13
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CONSTRUCTION INDUSTRY LICENSING BOARD vs. JESSE BRUCE, 82-002387 (1982)
Division of Administrative Hearings, Florida Number: 82-002387 Latest Update: Jun. 09, 1983

Findings Of Fact Based upon my observation of the witnesses and their demeanor while testifying, the documentary evidence received and the entire record compiled herein, the following relevant facts are found. Jesse Bruce, Respondent herein, is a registered roofing contractor and has been issued license No. RC0022948. On September 2, 1981, Respondent entered into a contract to repair a roof at 3684 NW 29th Street, Lauderdale Lakes, Florida, for Ms. Beryl Babb for the sum of $485.00. Respondent admits that he commenced construction under the above-referenced contract without first having obtained a building permit. Respondent was paid in full under the contract by Ms. Babb on September 4, 1981. Pursuant to the terms of the construction contract, Respondent provided for a two-year warranty on the roof repairs. Within an approximate two-month period following the repairs by Respondent, Ms. Babb made repeated phone calls to Respondent's construction company to report complaints that she was having in that the roof and garage appeared to "leak more than it had leaked prior to the repairs." Ms. Babb made at least six telephone calls to Respondent's construction company to no avail. During November, 1981, Ms. Babb filed a civil complaint in small claims court and during January, 1982, Ms. Babb received a judgment against the Respondent for $300.00. 1/ Respondent ahs been a licensed and registered roofing contractor since October, 1974. Respondent acknowledged that he received complaints from Ms. Babb as was testified herein; however, he states that he was busy during the times in which the complaints were made, an further that he did not want to make repairs inasmuch as Ms. Babb had elected to file a civil complaint against him in small claims court. Finally, Respondent acknowledged that he was obliged to return tot he Babb residence to make the repairs inasmuch as the complaints from Ms. Babb came during the two-year period in which the warranty for the roof repairs was in effect.

Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that the Respondent be placed on probation for a period of six (6) months. 3/ RECOMMENDED this 3rd day of February, 1983, in Tallahassee, Florida. JAMES E. BRADWELL 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 3rd day of February, 1983. COPIES FURNISHED: Michael J. Cohen, Esquire Suite 101, Kristin Building 2715 E. Oakland Park Blvd. Ft. Lauderdale, Florida 33306 Jesse Bruce 721 NW 20th Ave. Ft. Lauderdale, Florida 33311 Mr. James Linnan Executive Director Construction Industry Licensing Board Post Office Box 2 Jacksonville, Florida 32202 Mr. Fred Roche, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301

Florida Laws (3) 120.57455.227489.129
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CONSTRUCTION INDUSTRY LICENSING BOARD vs. RICHARD DOMINGO, 88-005195 (1988)
Division of Administrative Hearings, Florida Number: 88-005195 Latest Update: Mar. 16, 1989

Findings Of Fact During times material, Respondent was a certified roofing contractor, having been issued license number CC C014700 and was the sole qualifier for Gulfstream Contractors, Incorporated (Gulfstream). Gulfstream entered into a contract with Dr. Paul J. Schwartz, a chiropractor, to repair the roof to Schwartz' office building located at 1565 South Missouri Avenue, Clearwater, Florida. The contract between Gulfstream and Schwartz was entered into on July 22, 1985, and for a fee of $1,375.00, Gulfstream contracted to repair Schwartz' roof by tearing off the old gravel roof, install new decking and lead boots, to galvanize the roof and to remove all debris brought about as a result of the contracting activities. Gulfstream guaranteed the roof to be free of defects for a period of ten (10) years. (Petitioner's Exhibit 1.) Gulfstream commenced the repairs to Schwartz' roof without obtaining a construction permit and failed to call for progress inspections as was required by the City of Clearwater. Within one month following Respondent's completion of Schwartz' roof, Schwartz encountered leaks to the interior of his office building resulting in stained carpet, interior walls, and furniture in several of his examining rooms. Schwartz made repeated calls to Gulfstream in an effort to get Gulfstream to honor its ten-year guarantee on the roof. Respondent initially attempted to correct (repair) the roof, although he failed to return to the project after two or three visits during the first two months following completion of the project during July 1985. Thomas Chiplinsky is an inspector for the City of Clearwater whose area of responsibility includes the inspection of roofing projects. As part of his duties, Inspector Chiplinsky inspected Schwartz' roof following a complaint received by the City of Clearwater and found that the roof was installed in July 1985 by Gulfstream and no permit was obtained or inspections called for or made by Respondent. Inspector Chiplinsky observed soft spots in the roof and noted that Respondent failed to install counter flashing. Respondent acknowledges his responsibility as qualifier for Gulfstream. Respondent admits that he neither obtained a permit to perform the roof repairs, nor did he call for inspections as required by the City of Clearwater. Within months after Respondent completed the Schwartz project, the entity, Gulfstream Contractors, was disbanded and therefore no one responded to Schwartz' request that his roof be repaired.

Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that: Petitioner enter a Final Order imposing a $500 fine against Respondent, payable to Petitioner within 30 days of the entry of its Final Order. Respondent's license number CC C014700 be suspended for a period of one (1) year within the further condition that Respondent be allowed a period of 20 days following the entry of the Final Order to revisit the Schwartz project and make the necessary repairs to correct the roof repairs and abide by the terms of his guarantee. In the event that Respondent makes the necessary repairs within 30 days of entry of the Final Order, it is further RECOMMENDED that the period of suspension be suspended. RECOMMENDED this 16th day of March, 1989, in Tallahassee, Leon County, Florida. JAMES E. BRADWELL 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 16th day of March, 1989. COPIES FURNISHED: David Bryant 500 North Tampa Tampa, Florida 33602 Richard Domingo 4032 41st Avenue North St. Petersburg, Florida 33710 Kenneth E. Easley, Esquire General Counsel Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 Fred Seely, Executive Director Construction Industry Licensing Board 111 East Coastline Drive Jacksonville, Florida 3220

Florida Laws (4) 120.57489.105489.119489.129
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DIVISION OF REAL ESTATE vs ANDREA S. CAROLLO, 92-003896 (1992)
Division of Administrative Hearings, Florida Filed:Tampa, Florida Jun. 29, 1992 Number: 92-003896 Latest Update: Jun. 14, 1993

Findings Of Fact Petitioner, Department of Professional Regulation, Division of Real Estate, is the state licensing and regulatory agency charged with the responsibility and duty to prosecute administrative complaints filed pursuant to Section 20.30, Florida Statutes and Chapters 120, 455 and 475, Florida Statutes and rules and regulations promulgated pursuant thereto. Respondent, Andrea S. Carollo, was, at all times material hereto, a licensed real estate broker having been issued license number 0229337. The last licensed issued was as a broker c/o Florida Leisure Realty, Inc. t/a ERA, 27427 SR 54, Wesley Chapel, Zephyrhills, Florida 33543. Randy Locke and Geoffrey Bickerdike are not and have not been licensed, during times material, in any capacity with the Florida Construction Industry Licensing Board or the Florida Real Estate Commission. During July 1990, the Beardsleys entered into a contract to purchase realty situated at 220 Debbie Lane, Lutz, Florida. Additionally, the Beardsleys executed an addendum providing for the replacement of the roof. Negotiations for the contract and sale and the contract with its addendum were prepared by Respondent's licensed real estate salesman, Frank Kinsinger, an employee of Florida Leisure. The subject property was owned by Respondent's relatives, the Barettas, (aunt and uncle) who resided in Illinois. In anticipation of the sale of their rental property, the Barettas requested that Respondent obtain proposals to repair the roof. Pursuant to their request, Respondent obtained several proposals including proposals from Sun Roofing of Tampa, Hardy Roofing & Construction, Imperial Roofing Contractors, Inc. and Geoffrey Bickerdike. The proposals from all of the companies, with the exception of Bickerdike, all claimed that they were licensed roofing contractors. Respondent was acquainted with Bickerdike who represented himself in the past as a licensed contractor. Respondent was unaware that Bickerdike was not licensed by the Florida Construction Industry Licensing Board or the local board (Pasco County). Of the proposals received from the various contractors, the Barettas selected Bickerdike's proposal to repair the roof since his proposal also included additional work that the home needed. During the period when the Respondent accepted the proposals and the Beardsleys entered into the contract, the Barettas replaced the roof and undertook certain FHA repairs that were required. After execution of the contract, Bickerdike subcontracted with Randy Locke (Locke) a subcontractor to replace the roof. A permit was not pulled for the removal and replacement of the roof. Respondent was unaware that Bickerdike had subcontracted the roofing job and the other repairs to Locke and that a permit had not been pulled for the repairs. The roofing repairs were completed prior to closing and the inspection was approved by the FHA as required by the contract and other lending requirements. Following a period of approximately two months from completion of the roof replacement and closing on September 11, 1991, no water leakage was observed in the house by the Beardsleys when they subsequently visited the home. At closing, the Barettas paid for and provided the Beardsleys with an ERA home warranty. The Barettas likewise reimbursed Florida Leisure the sum of $1,930.00 for roof repairs which had been advanced by Florida Leisure on behalf of the Barettas. Approximately two months after the closing, the Beardsleys experienced water leaks from the roof of their home. The Beardsleys called Florida Leisure to complain of the leaks. Initially, agents and employees of Florida Leisure contacted Bickerdike such that he could return to the house and correct the leaks. Bickerdike, in fact, made several attempts to correct the roof leaks and after further calls, Florida Leisure furnished the Beardsleys Bickerdike's beeper number which they used to directly contact Bickerdike. Respondent did not hear from the Beardsleys and considered the problem to have been resolved. On August 8, 1991, the Beardsleys contacted the Pasco County Building Department to report the leakage problem. On August 11, 1991, Joe Creech, a Pasco County Building Construction Inspector, inspected the roof and reported the roof replacement by Bickerdike and Locke as being unworkmanlike. Creech concluded that the roof needed to be torn off and corrected. Creech also determined that neither Bickerdike or Locke had a roofing contractors license and that no permit had been pulled for the job. On October 29, 1991, Respondent, after being advised of the problem, obtained a proposal from RFP Roofing Company, Inc. to replace the roof. During November 1991, Creech first met with Respondent to discuss the Beardsley's roof problem. At that meeting, Respondent advised Creech that he had been unaware until then that Bickerdike was unlicensed. On November 19, 1991, Al Shevy, an inspector and investigator with Petitioner, first met with Respondent in connection with the Beardsley complaint filed on October 8, 1991. At that meeting, Respondent advised Shevy that he thought that Bickerdike was responsible for the roofing problems experienced by the Beardsleys and that Bickerdike never advised him that he had gotten someone else to do the roof replacement. Respondent's proposal from RFP Roofing Company, Inc., predates his meeting with Creech and Shevy. Respondent contracted with RFP Roofing Company to have the roof replaced and other repairs done related to interior water damage and drywall for a cost of approximately $5,000.00. Respondent corrected, at his expense, the roof leak problems as soon as he realized that Bickerdike would not or could not correct the problems. The Beardsleys, although provided with an ERA home warranty, never reported their roof problems to the home warranty claims division for repairs.

Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that: Petitioner enter a Final Order dismissing the Administrative Complaint filed herein in its entirety. DONE and ORDERED this 31st day of March, 1993, in Tallahassee, Leon County, Florida. JAMES E. BRADWELL 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 31st day of March, 1993. APPENDIX Rulings on Petitioner's Proposed Findings of Fact: Paragraph 3, rejected, not probative and unnecessary. Paragraph 6, rejected, unnecessary. Paragraph 8, rejected, irrelevant and unnecessary. Paragraph 10, adopted as modified, Paragraph 5, Recommended Order. Paragraph 13, rejected, not probative. Paragraph 15 first sentence, rejected, irrelevant. Paragraph 17, adopted as modified, Paragraphs 15 and 16, Recommended Order. Paragraph 18, adopted as modified, Paragraph 23, Recommended Order. Last sentence, rejected as being irrelevant. Paragraph 20, adopted as modified, Paragraph 16, Recommended Order. Paragraph 22, adopted as modified, Paragraphs 20-22, Recommended Order. Paragraphs 25 and 26, rejected, not probative. Paragraph 27, rejected, speculative. Paragraph 35, adopted as modified, Paragraphs 17 and 21, Recommended Order. Paragraph 36(sic) second 35 and 36, rejected, irrelevant and not probative. Paragraph 39, adopted as modified, Paragraph 17, Recommended Order. Paragraph 40, rejected, irrelevant. Paragraph 41, rejected, irrelevant. Paragraphs 45-49, adopted as modified, Paragraph 7, Recommended Order. Paragraph 50, rejected, not probative. Paragraph 51-54, rejected, not probative. Rulings on Respondent's Proposed Findings of Fact: Paragraph 5, adopted as modified, Paragraph 17, Recommended Order. Paragraph 11, adopted as modified, Paragraphs 12 and 13, Recommended Order. Paragraph 15, adopted as modified, Paragraph 16, Recommended Order. Paragraph 24, rejected, not probative. Paragraph 27, rejected, unnecessary. COPIES FURNISHED: Janine B. Myrick, Esquire Senior Attorney DPR - Division of Real Estate 400 West Robinson Street Post Office Box 1900 Orlando, Florida 32802 Jacob I. Reiber, Esquire LINSKY & REIBER Post Office Box 7055 Wesley Chapel, Florida 33543 Darlene F. Keller, Executive Director Florida Real Estate Commission 400 West Robinson Street Post Office Box 1900 Orlando, Florida 32802 Jack McRay, Esquire General Counsel Department of Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399 0792

Florida Laws (3) 120.57455.228475.25
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CONSTRUCTION INDUSTRY LICENSING BOARD vs. JAMES M. MCCURLEY, 85-003254 (1985)
Division of Administrative Hearings, Florida Number: 85-003254 Latest Update: Mar. 25, 1986

The Issue Whether respondent's license should be revoked, suspended or restricted, or whether an administrative fine should be levied against him, or whether he should be reprimanded for the reasons alleged in the administrative complaint?

Findings Of Fact James M. McCurley is a registered roofing contractor, holding Florida License No. RC 0042226. Licensed in Florida since 1982, Mr. McCurley has been in the roofing business for 25 years all told. Although he holds a state license, he is registered to do roof projects in Broward County only, 82-3201-R-R. Thomas v. Shoop, a real estate broker, manages the Mayani Biscayne Condominiums in Miami at 5995 Biscayne Boulevard, (Mayan) and the Camelot South Apartments on 17th Street in Fort Lauderdale (Camelot), which consist of three buildings (A, B and C). Above Camelot B's roof, which "is not properly set up for drainage at all," (T. 183), loomed a leaking water tower, which has only recently been fixed. In the summer of 1983, all four buildings' roofs leaked; and the roofer who had given long-term guarantees on Camelot's roofs had gone bankrupt. An associate of Mr. Shoop knew one John Emig, who was a salesman for Mr. McCurley. Messrs. Shoop and Emig visited the roofs and discussed the problems. In order to "mak[e] sure that they got a reputable roofer. . . [Mr. Shoop] did great deal of research with a list . . . [of] people that [Mr. McCurley] had done work for and were satisfied." (T. 16). Through Mr. Emig, Mr. McCurley offered to replace the 8,000-square-foot roof on Camelot B for $25,000. Further conversations eventuated instead in an agreement, reduced to a separate writing with respect to each Camelot building, Petitioner's Exhibit No. 2, that called for Mr. McCurley to repair, clean and paint the root and soffits of the three Camelot buildings. The contract for Camelot A characterized the work both as restoration and as preventive maintenance. Repairs were to be effected "as needed." The contracts recited the roofing contractor's "opinion [that] the following maintenance work should put this roof and mansard in the best possible condition, and that it reasonably can be expected to have up to a five year service life." Petitioner's Exhibit No. 2. The agreements specified installation of a total of 35 vapor pressure release vents and stated that Mr. McCurley was to: Check and reseal where needed all pitch pockets, using 10-year rubberized elastomers. . . . Remove all blistering coating from the roof decks and at all such spots install a repair patch. Repair any bulges or blisters and treat all cracks as needed using elastomeric and waterproofing membrane. Petitioner's Exhibit No. 2 The contracts were typed on printed forms. When Mr. Emig and Mr. Shoop signed the roofing contracts on August 24, 1983, Mr. McCurley was not present. At the time the agreements were signed, "3 was substituted for "1" in the phrase, "The above work . . . carries with it our 1 year Pree Service Guarantee should any leak occur . . ." Petitioner's Exhibit No. 2. Unchanged was a typewritten paragraph on each contract stating: In this particular situation our warranty shall be a one year unconditional one, which is standard procedure in the industry. Petitioner's Exhibit No. 2. Although Mr. Shoop dealt primarily with Mr. Emig in negotiating the contract, Mr. Shoop and Mr. McCurley went up on a roof together at one point before the contracts were signed. On September 20, 1983, an addendum to the contracts, calling for work on the buildings other than roofing, was executed. The contract price for the roofing work was less than 40 cents per square foot. The roofs in the Camelot complex were built-up tar and gravel, coated with a cementitious fill. Ordinarily insulation lies underneath a built-up roof of this kind. The vapor pressure release vents were proposed and contracted for on the assumption that insulation underlay the tar, insulation which permitted lateral movement of water and water vapor trapped by the tar and cementitious fill. Pressure attendant on vaporization of water trapped underneath the tar and fill is the apparent cause of the cracking and blistering that led to the leaks. In installing the first vapor pressure release vent, Mr. McCurley discovered that the tar had been placed directly on the roof sheathing. He explained to Mr. Shoop that there was no good reason to go forward with installation of the other vents because the impermeability of tar and fill precluded lateral movement of moisture and, therefore, its escape in any significant quantity through the vents. Mr. Shoop insisted, however, that all the vents called for by the contract go in, and Mr. McCurley complied. The vents stood useless (T. 99) but firmly affixed to the roof as recently as five or six months before the hearing. (T. 94) Thereafter, many were dislodged by the contraction and expansion of the roof, aggravating the leakage problems. To meet the contract requirement of an "elastomeric and waterproofing membrane," Mr. McCurley employed a coating he had never used before, but one which was advertised by a company listed on the New York Stock Exchange, Rohm & Haas, as capable of withstanding ponding water. At the time he entered into the contract, Mr. McCurley did not know that this claim was false. In the fall of 1983, he applied this coating not only to places where cementitious fill had bulged, blistered, or cracked, but also to unblemished portions of the Camelot roofs, covering them entirely twice, before applying a final coat of high gloss white paint. Before he was paid, Mr. McCurley had done everything called for by the contract. On May 30, 1984, however, Mr. Shoop told Mr. Emig that old leaks had reappeared and that new leaks had sprung open. Mr. Shoop also telephoned and left word for Mr. McCurley to this effect on June 15, 18, and 19. On July 5, 1984, Mr. Shoop wrote Mr. McCurley a letter, Petitioner's Exhibit No. 4, in response to which Mr. McCurley applied another acrylic waterproofing compound and plastic cement. When he finished, "it looked from a laym[a]n's point of view that it was a good job." (T. 31). In November of 1984, the B building roof still looked good but it leaked. In response to complaints, Mr. McCurley returned several times to repair blistered areas with acrylic waterproofing and to apply plastic cement. Typically these repairs prevented leaks the next hard rain but not the one following. Camelot B needs reroofing, which involves taking out the existing roof and building up a new one with tar and gravel, the approach Mr. McCurley originally recommended.) Mr. Hilson, who has spent approximately 30 years in the roofing business, testified that the coatings that Mr. McCurley used were permeable, and inappropriate for use on horizontal surfaces on that account. Specifically, after inspecting Camelot B's roof, Mr. Hilson testified: It has continued to leak from what we was shown and told. I made a note here that it takes a zero perm rating to hold back water, and these coatings apparently have no such perm rating. These coating[s] are breathable. And because they are breathable they allow water to go through them and become trapped, underneath the cementious fill. The only type of coating that we know of that these type of coatings were normally used on vertical surfaces where water can't stand on them, showing these photographs here the water where it does pond on this coating, it deteriorates the coating. It actually eats it. The fungus attacks it. Basically that's it, except where the bottom statement that I made is that these type of coatings cannot hold back water and should not be used to try to hold back water. And anybody with any roofing knowledge should understand or know they can't hold back water. (T. 71, 72). Respondent McCurley testified that he did not know what numerical "perm rating" the material he used had been given, but that he relied on the manufacturer's representations that it would withstand ponding, when he told Mr. Shoop that he thought it would work. He did not dispute that the coating had failed. Mr. Hilson was of the opinion that not even an impermeable coating would have worked, because it would not only have prevented water's penetrating, but would also have trapped moisture already in the cementitious fill. In his view, when the trapped water vaporized, it "would have blown the system off". Petitioner's Exhibit No. 7. Mr. McCurley also contracted with Mr. Shoop to work on the roof of the Mayani apartment building in Miami. For $1200.00, he undertook, among other things, to check and reseal as needed "litch [sic] pans," repair three leaks in the deck, cover "all bald spots with gravel," and install Gravel Lok over the entire gravel roof area. The leak repairs were unconditionally guaranteed for a year. After work was completed, Mr. McCurley received full payment on September 6, 1983. Before he began work, Mr. McCurley telephoned some government office in Dade County and asked whether a permit was "required to put a cement coating over a gravel built-up roof," (T. 9) and was told that none was required. After the present proceedings were instituted he called again and got the same answer. As a practical matter, persons not licensed as roofers, including "the average painter, goes out and does a waterproof of a roof." (T. 103) Repair of the three leaks probably cost Mr. McCurley $30.00. (T. 99) When he began on the Mayani roof Mr. McCurley was aware that Dade County's code is similar to Broward County's, which incorporates the South Florida Building Code, and knew specifically that Dade County required a permit for roofing repairs "after Three Hundred dollars," (T. 98) a permit he was ineligible to obtain. Dade County does indeed require permits for the "application, construction or repair of any roof covering. . .exceeding three hundred dollars (S300.00) in value of labor and materials, . . . or for work exceeding 2 roofing squares in extent," Petitioner's Exhibit No. 6, and the requirement applied to the job Mr. McCurley did at Mayani. (T. 66). When Mr. Shoop reported the Camelot leaks to Mr. Emig on May 30, 1984, he also reported leaks at Mayani that had appeared after heavy rains in Miami. Eventually respondent repaired the Mayani roof, but problems developed again in November of 1984.

Florida Laws (2) 489.117489.129
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CONSTRUCTION INDUSTRY LICENSING BOARD vs. JOSEPH A. DEAN, 82-003106 (1982)
Division of Administrative Hearings, Florida Number: 82-003106 Latest Update: Oct. 21, 1983

Findings Of Fact Respondent is a registered residential contractor having been issued license number RR 0034888. He owns and qualifies Allstate Building Contractors, Inc. Respondent submitted a bid to the City of Miami for renovation and roofing work on a 50-year-old home owned by Margaret Donlevy pursuant to the city's neighborhood rehabilitation program. The Rehabilitation Specifications upon which Respondent bid were written by Roger Rojas, a rehabilitation estimator for the city. The portion of the Specifications pertaining to the roofing work reads only as follows: Remove existing roof covering and replace damaged sheeting and rafters. Apply one 30 No. layer of felt, tin-tacked and then apply two layers of 15 No. felt moppedon. Flood coat and apply gravel (check roof decking (Allow $1.05 per foot) replacing dot decking. Respondent was awarded the Donlevy job. On October 17, 1980, Respondent and Donlevy entered into the one-page form contract being utilized by the city for its rehabilitation projects. The city's Agreement for Rehabilitation contains a date, the names of the contractor and the property owner, the price of the contract, and the deadline by which the work must be done. The Agreement contains no information regarding the work to be performed or the location of the job site. Rather, the Agreement recites the names of various documents, recites that those documents are the contract documents, and incorporates those documents by reference. Only the Agreement for Rehabilitation, the Specifications, and the Proceed Order were offered in evidence. On October 17, 1980, the City of Miami issued its Proceed Order authorizing Respondent to commence work on the Donlevy residence no later than October 20, 1980, which work was required to be completed within 24 calendar days after starting construction. On October 21, 1980, Rojas issued a Change Order on the Donlevy residence which contained the following Description of Work Change: Replace rotted and deteriorated [sic] roof decking and rafters. 2. Upgrade entire electrical system. Install 3 duplex outlets in kitchen area. Move meter to outside of residence. Rojas's authorization to approve the Change Order came from James W. Wager, the senior rehabilitation estimator for the Department of Community Development of the City of Miami. On October 22, 1980, Respondent signed a Contractor's Final Invoice, Release of Liens, and Warranty which recited, inter alia, ". . .that the roof work performed is guaranteed for a period of five (5) years for both workmanship and materials. The undersigned will replace faulty materials or faulty workmanship within the period of the guarantee free of charge." On October 24, 1980, Respondent issued a separate "Roof Guarantee" to Donlevy which provided as follows: The Company guarantees its material and workmanship for five (5) years. It will replace faulty material or faulty workmanship within the period of the guarantee free of charge. On October 28, 1980, the City of Miami issued its check to Allstate Builders in full payment of the Donlevy contract. In performing the roofing work on the Don levy residence, Respondent took off all the existing roof covering, down to the bare deck; repaired all the rotten rafters on the top part of the roof truss that were visible; installed a new roof covering, applying one layer of felt and putting on two layers of 15 No. felt; installed flashing with 90 No. slate, and then laid gravel. Both Rojas and Wager made frequent inspections during the time that Respondent was working on the Donlevy residence, Rojas because it was a job for which he had been assigned responsibility, and Wager because the Donlevy rehabilitation project was one of the first performed pursuant to the rehabilitation program of which Wager was in charge. Respondent successfully completed all interim inspections and the final inspection on the roofing work performed by him. Several months after completion of the roofing work on the Donlevy residence, Respondent was advised that there was a leak over the carport area. He immediately responded and repaired that leak. While at the Donlevy residence, he noticed an abundance of leaves on the roof, apparently attributable to a large tree next to the house. He personally removed the leaves. He advised Rojas and Wager that the tree should be removed, since it created a potential for clogging the drain on the roof. He was advised there was no grant money for tree removal. Wager described the roof on the Donlevy residence as being a strange roof. Although the roof was flat, it was not an average roof. Only one drain was located on the entire roof--a rectangular hole approximately four inches by three inches with a Philadelphia-type gutter. That drain system appeared to have been installed with the roof when the house was originally built, and Respondent's job specifications did not include any changes to the drain system. In September 1981, a portion of the roof caved in. Although Respondent suggested an immediate inspection, the City of Miami employees desired to wait a few days. On October 1, 1981, Respondent, Rojas and Wager met at the Donlevy residence and inspected the roof. Wager took the position that all repairs necessitated by the cave-in were covered by Respondent's warranty, and Respondent took the position that the cave-in was caused by a collapse of the roof system and was not related to any work performed by him. After heated discussion, Wager ordered Respondent off the property. On the following day, Wager caused to be hand-delivered to Respondent a letter advising Respondent that a replacement contractor had been engaged and that Respondent was to make no attempt to correct the damage to the Donlevy residence. Between the time Respondent commenced working on the Donlevy roof in October 1980 and the time the cave-in occurred in September 1981, no citation was issued to Respondent for any defects in workmanship or materials, and no written complaints concerning any such defects were ever made. The only verbal complaint concerned the leak in the carport area, which Respondent immediately repaired. No leak occurred again at that site. The cave-in was caused by the collapse of deteriorated wood, the weight of pooling water, and the size of the single drain (which probably became blocked by leaves). Respondent's contract with Donlevy as the Specifications were written by Rojas did not include putting in a new roof system, and Respondent did not replace the roof system in the Donlevy residence. Respondent's warranty would not cover work not contracted for and not done by him. Petitioner's witnesses admitted that Respondent did not replace the roof system in the Donlevy house and further admitted that even with the roof covering cleared off, all the rafters (the component which collapsed) could not be seen in order to ascertain their condition. The contractor who replaced Respondent received a Proceed Order from the City of Miami on October 2, 1981. Pursuant to instructions from the city, that contractor replaced the entire roof system and further installed a bigger drain.

Florida Laws (3) 120.57455.227489.129
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