Findings Of Fact Respondent is and at all material times has been a licensed residential contractor in the State of Florida. He holds license No. RR 0039483. He has been a licensed contractor for 36 years, including the last seven years in Florida. In late December, 1985, Jessie Lee entered into a written contract with Respondent for the construction of a home at 3010 Surf Drive in Deltona, Florida. The contract called for Respondent to construct a completed house for the sum of $34,000. In the contract, Respondent warranted the house "against defects in material and workmanship for one year from date of final settlement or issuance of Certificate of Occupancy." By a separate document styled, "Contractor Warranty," Respondent attested as follows: That, for a period of one year from the date of the sale, all workmanship, and materials are guaranteed by [Respondent] and that, should any defect in workmanship become evident during that period, that defect will be repaired, replaced or corrected, as the case may be, at no cost to the said purchasers by [Respondent] . . . . The Contractor Warranty was notarized on June 13, 1986. Construction commenced in March, 1986. Sometime after the ordering of the roof trusses, Mr. Lee and Respondent agreed to the addition of a screened porch to the back of the house. Respondent commenced construction of the screened porch prior to the issuance of the building permit for the porch. The addition of the screened porch created a new roof gable. The failure to change the truss design for the rest of the roof left a roof valley that was misplaced by about two feet. The misplaced valley created a flat area on the roof. The slope or pitch in this area was no more than 2 1/2" per 12". Respondent was at all times aware that the pitch did not meet the manufacturer's minimum technical standard of 3" per 12" for the subject shingles. Respondent felt that, based on past experience, such a slight discrepancy would not cause any problems. In late May, 1986, prior to the completion of construction, Mr. Lee reported to Respondent rain leakage over the screened porch on three occasions. Respondent spread asphalt tar over the affected area on each occasion. Closing occurred on June 11, 1986. Mr. Lee made the last payment due Respondent under the construction contract on June 24, 1986. After closing, the roof continued to leak over the screened porch. Mr. Lee's many telephone calls to Respondent's office went unanswered. Mr. Lee called Respondent's home twice, but received no response. In the case of each telephone call, Mr. Lee would speak with Respondent's wife or daughter, who worked in his office, and would be assured that Respondent would be by Mr. Lee's house sometime. Mr. Lee received no response from Respondent during the rainy months of June through August, 1986. The summer rains damaged the screened porch ceiling and walls with water damage and mildew. Finally in late August, 1986, Mr. Lee took his problems to the Volusia County Building Department. On September 4, 1986, the Volusia County Sheriff's Office served Respondent with a Violation Notice giving Respondent ten days to fix the faulty roof. In response to this notice, Respondent sent one of his workers to Mr. Lee's house to paint over or treat the discoloration on the walls caused by water penetration. The repainting or treatment left the affected portion of the walls considerably darker than the remainder of the walls. More significantly, no repairs to the roof were attempted at this time. In late September, 1986, Mr. Lee personally visited Respondent's office. He asked Respondent when he was going to fix the roof. Respondent would not let Mr. Lee into the office. Respondent assured Mr. Lee, "I'll get it someday." Nothing further occurred until October 7, 1986, when Respondent received a building permit from the Volusia County Building Department. The permit was for a building repair job. Respondent attached to the permit a drawing dated October 5, 1986, calling for moving the valley two feet to eliminate the flat area and replace it with a 3/12 slope. No repairs were ever attempted under this permit. Mr. Lee then took his problems to Petitioner in December, 1986. On May 27, 1987, the Volusia County Sheriff's Office served Respondent with a Notice of Hearing, Notice of Violation, and Request for a Hearing before the Volusia County Building Code Enforcement Board. Mr. Lee and Respondent were jointly cited by the Volusia County Building in the Notice of Violation. The hearing was set for June 15, 1987. On June 1, 1987, Respondent received a second building permit to repair the roof. Pursuant to a request by the Volusia County Building Department, Respondent attached to the permit request architectural drawings specifying the placement of a roof "cricket" in order to relocate the mislocated valley and thereby eliminate the flat area over the screened porch. The job was completed and reinspected by the Volusia County Building Department on June 9, 1987. The June 15, 1987 hearing was then cancel led. The roof has continued to leak to some degree following this repair. Although Respondent personally inspected the interior damage in June, 1987, and promised later to repair it, he has never done so. Photographs suggest that the interior water damage is greater now than it was after Respondent's interior repair job in September, 1986. However, there is no competent evidence as to the extent of the leakage since the June, 1987, exterior repair job. Further, Mr. Lee has not contacted Respondent since June, 1987, with respect to the ongoing leakage. On August 14, 1987, Petitioner entered a Final Order in Department of professional Regulation v. Louis Bouchard, Case No. 59700. The Order approved a settlement entered into on January 30, 1986, under which Respondent admitted the allegations of the Administrative Complaint and agreed to the imposition of a $500 fine. In that case, Respondent agreed to install a fireplace following the issuance of a building permit for a house without a fireplace. Following construction of the fireplace, structural problems caused by an inadequate or absent footer and foundation required the rebuilding of the fireplace.
The Issue Whether disciplinary action should be taken against Respondent's license to practice contracting number RC 0054458, based on the violations of Section 489.129(1)(j), (k), (h), (p) and (m), F.S., alleged in the five count Administrative Complaint.
Findings Of Fact Since July 1968 and at all times material, Respondent Ronnie Boles, was licensed as a registered roofing contractor in the State of Florida, having been issued license number RC 0054458, and was registered to do business as "Ronnie Boles Roofing Company." On January 8, 1990 Ronnie Boles, doing business as Ronnie Boles Roofing and Construction, contracted with William C. Martin to construct two pole barns at 10550 N.W. 36th Lane, Gainesville, Alachua County, Florida. The contract price was $21,000.00. There is no evidence that "Ronnie Boles Roofing and Construction" was authorized through a valid contractor to construct pole barns. Respondent's roofing contractor license also did not permit the construction of pole barns. On January 12, 1990, Ms. Jean H. Martin, wife of William C. Martin, issued a personal check to the Respondent for $10,000 as partial payment on the January 8, 1990 contract. The Respondent delivered some materials to the site for use in the construction of the aforementioned pole barns, but never began construction. Mr. Martin attempted to have the Respondent construct the pole barns for over three months without success. The value of the materials provided by the Respondent was approximately $2,000.00, Mr. Martin attempted to have the Respondent refund the $8,000.00 balance of the money Ms. Martin previously paid Respondent on the uncompleted contract. Eventually, Mr. Martin retained attorney Ron Holmes who filed a civil suit against the Respondent based on the aforementioned contract. A judgment for Mr. Martin was obtained in the amount of $9,374.36 on October 1, 1991. Mr. Holmes has attempted to collect the judgment for Mr. Martin on several occasions without success. The Respondent has been actively uncooperative. As of the date of the formal administrative hearing, Respondent had paid no portion of the aforementioned judgment. Mr. Martin filed a complaint against the Respondent with the Department of Business and Professional Regulation. Tom Bishop, Department of Business and Professional Regulation Investigator, investigated the case and mailed the Respondent a notification letter on April 20, 1992. In addition, Mr. Bishop left two messages on the Respondent's answering machine. The Respondent did not respond to the notification letter or the phone messages left by Mr. Bishop. The Department of Business and Professional Regulation has accumulated $22.40 in initial investigative costs, $267.50 in investigative costs, and $605.90 in legal costs associated with prosecution of this cause as of the date of Petitioner's Proposed Recommended Order, totalling $895.80.
Recommendation Upon the foregoing findings of fact and conclusions of law, it is recommended that the Construction Industry Licensing Board enter a final order which provides as follows: Finds Respondent guilty of all violations as set out above. Requires Respondent to pay a collective fine of $5,000.00; Requires Respondent to pay restitution to Mr. Martin of $9,374.36; Requires Respondent to pay costs of investigation and legal fees in the amount of $895.80; and Suspends Respondent's license for three years, thereafter renewal of his license to be subject to proof of Respondent's compliance with requirements (2) - (4) inclusive. RECOMMENDED this 1st day of February, 1994, at Tallahassee, Florida. ELLA JANE P. DAVIS, Hearing Officer Division of Administrative Hearings The De Soto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 1st day of February, 1994. APPENDIX TO RECOMMENDED ORDER, CASE NO. 93-1497 The following constitute specific rulings, pursuant to S120.59(2), F.S., upon the parties' respective proposed findings of fact (PFOF). Petitioner's PFOF: 1 Rejected as unnecessary. 2-9 Accepted as modified to remove rhetoric and cumulative material. Respondent's PFOF: None Filed. COPIES FURNISHED: G. W. Harrell, Esquire Department of Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792 Ron Boles Route 2 Box 417 Alachua, Florida 32615 Richard Hickok, Executive Director Construction Industry Licensing 7960 Arlington Expressway Jacksonville, Florida 32211-7467 Jack McRay, Esquire Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792
The Issue Whether Respondent was negligent in the practice of engineering as a result of alleged deficiencies in a porch addition to a residential structure, as alleged in the Administrative Complaint.
Findings Of Fact Based upon the evidence, the following Findings of Fact are made: Petitioner is charged with regulating the practice of engineering pursuant to Chapters 455 and 471, Florida Statutes (2004). Respondent is, and has been at all times material to this matter, a licensed professional engineer in the State of Florida, having been issued License No. PE 12217. Pursuant to the terms of a stipulation entered into between Respondent and the Board of Professional Engineers (Board) on a prior matter, Respondent provided the Board with a list of all Respondent's projects completed at 6- and 18-month intervals. One of these projects was a Terks Contracting Construction, Inc. (Terks Contracting), project for a screened porch addition. Respondent testified he was retained for the purpose of producing drawings containing specifications for the contractor for the slab, supports, spanning members, the connectors, and other elements. Respondent is the engineer of record for the Terks Contracting's covered porch addition to an existing single- family house. Respondent analyzed the windloads for the wood joists, wood beam, and the uplift supports. He calculated not only the gravity load, but considered the uplift load, as well. The analysis of windloads are covered by Tables 1606.2A and 1606.2B of the FBC. Petitioner testified he used these tables in his design of the covered porch. These tables are a simplified version of the standards of the American Society of Civil Engineers, Chapter 7-98 (ASCE 7). Respondent's determination of the components and cladding wind pressure are not inconsistent with the standards of the ASCE 7, which is the windload provision of the FBC. Respondent's calculations state that the rafters experience a uniform uplift load of 34 pounds per linear foot (plf) for the interior zones, and 38.4 pounds per square foot (psf) and 30.1 psf, respectively, for the endzones. Respondent is not mistaken in treating the overhang area and the endzones as two different areas adjacent to each other. To the extent the endzone (or edge zone) has higher wind pressures, Respondent calculated that the new structure would not adversely affect the existing house, if the new joists were attached to the top plate of the existing house. Respondent's calculations and drawings do not adversely affect how the covered porch addition affects the existing structure. Respondent's plan calls for the new joists to be connected to the top plate, which is part of the wall of the existing house, using a Simpson H 2.5 connector and to be set along side the existing truss members. The new joists were not attached to the existing trusses. In addition, a nailing pattern was selected for the plywood sheathing panels that accounted for variable wind pressures using the higher endzone windload for the entire area. However, Aranegui testified that he did not make any calculations to determine if, in fact, the specifications in the drawings were inadequate or incorrect. Petitioner's witness testified that he did not inspect the structure or speak with Respondent regarding the design of the structure. Aranegui did not take issue with Respondent's specifications for components or materials for the structure. Petitioner presented no evidence that there had been any complaints about the integrity of the structure, that the structure was deficient or unsafe in any manner, or that the structural elements as shown on the plans and, as built, did not meet engineering or FBC requirements. Aranegui testified that his opinions were based solely on two documents: the plans for the additions, Petitioner's Exhibit 1; and Respondent's calculations, Petitioner's Exhibit 2. Petitioner's expert witness testified that his concern came from his review of the paper calculations done by Respondent, and he believed the calculation sheet (not the plans) did not show consideration of windloads or complete analysis. However, Aranequi did not identify any requirement that these calculations be shown on paper and not just on the plans, nor did he identify any engineering practice imposing a duty on Respondent to write these calculations down. As noted below, there is convincing evidence that these concerns were considered and addressed by Respondent in the plans. Aranegui testified that his concern arose from his belief that the entire project in question should have been treated as a large overhang. However, Aranegui did not identify any provisions of the building code requiring Respondent to treat the screen porch addition as an overhang and did not identify any specific engineering practice that imposed a duty on Respondent to approach the design of the project as a large overhang. Aranegui's opinions were based on the assumption that because the plans and the calculation sheet he reviewed did not, in his opinion, show that certain matters were considered, they were not, in fact, considered in the design of the structure. Aranegui also testified he did not find an actual error or miscalculation in Petitioner's Exhibit 2. The evidence is convincing that the design of the porch addition was sound and safe and met all required structural requirements. The evidence is not clear and convincing that Respondent was negligent in the practice of engineering in a porch addition to a residential structure.
Recommendation Based on the foregoing Findings of Facts and Conclusions of Law, it is RECOMMENDED that the Board of Professional Engineers enter a final order finding Respondent, James Tippens, P.E., not guilty of negligence in the practice of engineering as alleged and that the Administrative Complaint filed in this cause be dismissed. DONE AND ENTERED this 5th day of May, 2005, in Tallahassee, Leon County, Florida. S DANIEL M. KILBRIDE 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 5th day of May, 2005. COPIES FURNISHED: Douglas D. Sunshine, Esquire Florida Engineers Management Corporation 2507 Callaway Road, Suite 200 Tallahassee, Florida 32303-5267 Jawdett I. Rubaii, Esquire 1358 South Missouri Avenue Clearwater, Florida 33756 Natalie A. Lowe, Executive Director Board of Professional Engineers Department of Business and Professional Regulation 2507 Callaway Road, Suite 200 Tallahassee, Florida 32303-5267 Leon Biegalski, General Counsel Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-2202
The Issue The issues framed by the Amended Administrative Complaint are whether Mr. Chandwani was guilty of negligence in the practice of engineering with respect to drawings prepared for the renovation of a house, and whether he failed to obtain a certificate of authorization for a corporation which he owned which offered engineering services to the public.
Findings Of Fact The notice of the hearing was sent to Mr. Chandwani at the address disclosed on the Election of Rights form in which he demanded a formal hearing on the allegations made in the Administrative Complaint filed by the Department of Professional Regulation. Mr. Chandwani did not, however, appear at the hearing. Mr. Chandwani is licensed by the Board of Professional Engineers holding registration #PE0017049. Mr. Chandwani is the president of International Engineers and Builders, Inc., a Florida corporation whose Articles of Incorporation were filed with the Secretary of State on July 8, 1980. Mr. Chandwani, on behalf of International Engineers and Builders, Inc., entered into a contract on November 28, 1984, with Peter Persaud for the preparation of sealed plans for the rehabilitation of a property located at 22740 S.W. 179th Place, Miami, Florida. Mr. Persaud had purchased the property while it was in foreclosure. The property had come under the jurisdiction of the Dade County Code Enforcement Department due to defects in the structure, and Mr. Chandwani was engaged to provide drawings for the rehabilitation of the property. The plans originally delivered to Mr. Persaud by Mr. Chandwani were neither signed nor sealed. When taken to the Dade County Building and Zoning Department they were found to be deficient not only because they were not signed and sealed, but because they did not meet the criteria of the South Florida Building Code. For example, a cabana shown on the plans should not have been located on the property line. Eventually Mr. Chandwani provided signed and sealed plans, but only after a demand to do so had been made by Mr. Persaud's attorney. The testimony of James Owen Power, a consulting engineer who testified about the plans on behalf of the Board of Professional Engineers, has been accepted. The plans submitted are deficient in that they do not contain complete information on all components of the structure. For example, there is no design specified for roof trusses, nor is there any design for assembling trusses into a roof system. The plans are also confusing and contradictory in that Section A on sheet 1 of the plans appears to show a wall of a garage as part of an existing building but the plans indicate elsewhere that the garage is new, and nonexisting. There is also a confusing note with respect to a "cathedral ceiling" in the construction of the house, for there is no definition of what a cathedral ceiling is. Moreover, the drawings appear to show a level ceiling, not a cathedral ceiling. It is not clear whether the garage is to have any ceiling. Although Mr. Chandwani contracted with Mr. Persaud through International Engineers and Builders, Inc., International Engineers and Builders, Inc., has never been issued a certificate of authorization under the provision of Chapter 471, Florida Statutes.
Recommendation It is recommended that a final order be entered finding Mr. Chandwani guilty of negligence in the practice of professional engineering and of offering engineering services through an entity which does not hold a certificate of authorization, that he be reprimanded, fined $2,000 and his licensure be placed on probation for a period of two years. The fine shall be paid within sixty (60) days of the entry of the final order. DONE and ORDERED this 11th day of April, 1988, in Tallahassee, Florida. WILLIAM R. DORSEY, JR. Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 11th day of April, 1988. COPIES FURNISHED: Arjan D. Chandwani 2560 Azalea Avenue Miramar, Florida 33025 Ray Shope, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 Fred Seeley Executive Director Construction Licensing Board Department of Professional Regulation Post Office Box 2 Jacksonville, Florida 32201 William O'Neil General Counsel Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750
Findings Of Fact At all times material to the Administrative Complaint, the Respondent, Joseph H. Rayl, was licensed as a registered roofing contractor in the State of Florida, holding license number RC 0034055. At all times material to the Administrative Complaint, the Respondent, Joseph H. Rayl also was licensed in the State of Florida as a certified roofing contractor holding license number CC C035625 and as a certified building contractor holding license number CB C033206. At all times material to the Administrative Complaint, through the time it closed its doors in November, 1987, the Respondent was the sole qualifying agent, owner, and president of Unique Construction, Inc. (Unique). On or about July 19, 1985, Mrs. Anna M. Adams contracted through a salesman for Unique to reroof the flat roof of her house in St. Petersburg Beach for $1076. Mrs. Adams contracted with Unique because the company offered a five year warranty on workmanship. In August of 1985, Unique reroofed the flat roof of Mrs. Adams' house. Mrs. Adams' roof continued to leak. Mrs. Adams called Unique every Monday and advised that her roof continued to leak. Repeated promises were given by Unique that her roof would be repaired. Unique responded to Mrs. Adams calls for repairs on or about February 18, 1986. Mrs. Adams' roof continued to leak, and she notified Unique repeatedly. After Mrs. Adams complained to Consumer Affairs in Tampa, Unique again attempted to repair the roof on April 30, 1987. Mrs. Adams left her home after the April 30th repairs by Unique, but when she returned in August, 1987, the roof had continued to leak. The interior of Mrs. Adams' home was damaged, including, but not limited to, ceiling tiles falling down and her floor and furniture getting wet. Mrs. Adams repeatedly telephoned Unique from August 5, 1987, advising of the leaking roof. Mrs. Adams sought the assistance of the Better Business Bureau. On September 15, 1987, Unique again attempted to repair the roof. In January, 1988, Mrs. Adams hired another roofing contractor to repair her entire roof, which included reroofing the shingle roof over the main part of her house, for $2100. No permits were obtained nor inspections called for by Unique for Mrs. Adams' job. Unique had continuous access to Mrs. Adams' home to repair her home. The Respondent repaired the interior of Mrs. Adams' house after he received notice of the complaint from Department of Professional Regulation in February, 1988. Prior to the hearing, the Respondent had not seen the contract Unique had with Mrs. Adams. The Respondent had no knowledge of the Adams' job until receiving the Department of Professional Regulation complaint. Until February, 1988, the Respondent had not seen or examined Mrs. Adams' roof. Until February, 1988, the Respondent had never spoken with Mrs. Adams. Despite Mrs. Adams repeated requests to speak to the Respondent when she called Unique, the requests never were passed along to the Respondent. During the late part of 1985 and early part of 1986, Unique had five locations and did 600-700 jobs a year. The Respondent could not personally supervise all the jobs and relied on supervisors. The Respondent placed authorization letters in the building departments so that his office managers could pull permits for Unique. The Respondent instructed his office managers to pull permits and call for inspection on all jobs. But he did not adequately monitor the operations of his Tampa office to assure that his instructions were followed in the case of the Adams job. Failing to obtain building permits and failing to call for inspection constitutes improper supervision as well as violations of local building codes. The cause of the leak in the Adams roof was in the shingle roof over the main part of the house, not in the flat roof Unique put on or in the "tie- in" between the flat roof and the shingle roof. A roofer is responsible to advise the customer of the cause of continuous leaks. Unique did not advise Mrs. Adams that repairing her main roof was required to stop the leaks. The Respondent previously has received letters of guidance from the Construction Industry Licensing Board on October 5, 1987, for violations of Florida Statutes 489.129(1)(d) and 489.129(1)(m).
Recommendation Based upon the Findings Of Fact and Conclusions Of Law, it is recommended that the Construction Industry Licensing Board enter a final order (1) finding the Respondent, Joseph H. Rayl, guilty of violating Section 489.129(1)(j) by failing to supervise the activities of his company as required by Sections 489.119 and 489.105(4), Florida Statutes (1987); (2) fining him $1000; and (3) suspending his license for three months. DONE and ENTERED this 9th day of February, 1989, at Tallahassee, 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 9th day of February, 1989. APPENDIX TO RECOMMENDED ORDER, CASE NO. 88-3299 To comply with Section 120.59(2), Florida Statutes (1987), the following rulings are made on the Petitioner's proposed findings of fact: 1. Accepted but unnecessary. 2.-24. Accepted and incorporated to the extent necessary and not subordinate. 25. Accepted; subordinate to facts found. 26.-29. Rejected as subordinate to facts contrary to those found. The evidence did not prove that the leak was at the tie-in or any other part of the work Unique did in re-roofing the Adams' flat roof. Unique did not fail to honor its guarantee on the work it did. Accepted; subordinate to facts found. Rejected as not proven. 32.-33. Accepted and incorporated. COPIES FURNISHED: Fred Seely Executive Director Construction Industry Licensing Board Department of Professional Regulation Post Office Box 2 Jacksonville, Florida 32201 Elizabeth R. Alsobrook, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 William E. Whitlock, III, Esquire Donald L. Tucker, Esquire 16 East 3rd Avenue Tallahassee, Florida 32303 Bruce D. Lamb General Counsel Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750
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
The Issue The issues in this case are whether Respondent, Richard Lindley, committed the offenses alleged in a four-count Administrative Complaint filed with Petitioner, the Department of Business and Professional Regulation, on March 20, 2008, and, if so, what penalty should be imposed.
Findings Of Fact Petitioner, the Department of Business and Professional Regulation (hereinafter referred to as the "Department"), is the agency of the State of Florida charged with the responsibility for, among other things, the licensure of individuals who wish to engage in contracting in the State of Florida; and the investigation and prosecution of complaints against individuals who have been so licensed. See Chs. 455 and 489, Fla. Stat. Respondent, Richard Lindley, is and has been at all times material hereto a certified building contractor in Florida, having been issued license number CB C060555. Mr. Lindley is also a Certified Roofing Contractor, having been issued license number CC C1326286. Both licenses were issued by the Construction Industry Licensing Board (hereinafter referred to as the “Board). At all times material, Mr. Lindley was the primary qualifying agent for HCL, Inc. (hereinafter referred to as “HCL”). HCL has a certificate of authority, QB number 20599. On or about June 8, 2005, Mr. Lindley, doing business as HCL, entered into a written contract (hereinafter referred to as the “Contract”) with Myra Love to re-roof her residence located at 765 Windermere Way, Palm Beach Gardens, Florida 33418 (hereinafter referred to as the “Subject Property”). Pursuant to the Contract, Ms. Love agreed to pay HCL a total of $8,125.00, as follows: $1,625.00 upon signing the Contract; $2,843.75 upon “roof dri in”; $2,843.75 upon “roof load”; and $812.50 upon “final inspection.” Consistent with the Contract, Ms. Love paid HCL $1,625.00 by check dated June 8, 2005, upon entering into the Contract. On June 9, 2005, Mr. Lindley applied for a building permit for the work to be performed pursuant to the Contract. The permit was issued, but expired for lack of final inspection. Ms. Love next paid HCL $2,843.75 by check dated October 20, 2005, upon being informed that the roof had been dried in. Despite having paid for the dry in of the roof, it continued to leak. After making the second payment to HCL in October 2005, no work was performed pursuant to the Contract and all efforts by Ms. Love to contact Mr. Lindley failed. On April 24, 2006, Ms. Love wrote to Mr. Lindley complaining about the condition of her roof and his lack of response to her telephone calls to him. This letter was delivered by certified mail, return receipt. Mr. Lindley did not respond to Ms. Love’s April 24, 2006, letter. No work was performed by Mr. Lindley through October 2006 on the Subject Property, at least a year after work on the Subject Property stopped. Therefore, Ms. Love sent a letter dated October 31, 2006, by certified mail, return receipt, to Mr. Lindley. Ms. Love stated in the letter that “since you abandoned the contract on 6/8/05, and failed to show up on the job, I consider the contract null and void because of your nonperformance. You and your employees are hereby notified to stay off my property.” On November 4, 2006, after informing Mr. Lindley that she considered the Contract null and void, Ms. Love contracted with Gold Coast Roofing to complete the re-roofing of the Subject Property. Ms. Love paid Gold Coast Roofing $14,900.00 for the completion of the re-roofing. Essentially, Gold Coast Roofing, due to the time that had expired since work was abandoned, had to essentially start over on the re-roofing of the Subject Property. The total investigative costs for this matter incurred by the Department, excluding costs associated with any attorney’s time, was $258.56.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered: Finding that Richard Lindley violated the provisions of Section 489.129(1)(j) and (m), Florida Statutes, as alleged in Counts II and IV of the Administrative Complaint; imposing a fine of $2,500.00 and placing Mr. Lindley’s licenses on probation for a period of four years conditioned upon his payment of the fines, restitution and the costs incurred by the Department, and any other conditions determined to be necessary by the Board, for the Count II violation; requiring that Mr. Lindley make restitution in the amount of $4,468.75 to Ms. Love; and requiring that Mr. Lindley pay the costs incurred by the Department in investigating and prosecuting this matter; and Dismissing Counts I and III of the Administrative Complaint. DONE AND ENTERED this 12th day of March, 2009, in Tallahassee, Leon County, Florida. LARRY J. SARTIN Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 12th day of March, 2009. COPIES FURNISHED: Lisa A. Comingore, Esquire Department of Business and Professional Regulation 1940 North Monroe Street, Suite 42 Tallahassee, Florida 32399-2202 Richard H. Lindley Richard H. Lindley, d/b/a HCL, Inc. 9146 Arrowhead Drive Greenacres, Florida 33467-1060 Kyle Christopher, Esquire Department of Business & Professional Regulation 1940 North Monroe Street, Suite 42 Tallahassee, Florida 32399-2202 G. W. Harrell, Executive Director Construction Industry Licensing Board Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792 Ned Luczynski, General Counsel Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792
Findings Of Fact This case is presented for consideration on the basis of a Notice to Show Cause/Administrative Complaint filed by the Petitioner, State of Florida, Department of Business Regulation, Division of Hotels and Restaurants, against Michael Cohen, trading as Capricorn Apartments, Respondent. In fact, the 13251 Corporation, Inc., trades as Capricorn Apartments and is licensed by the Petitioner for the apartment business located at 13251 Northeast Memorial Highway, North Miami, Florida. That corporation was also the owner of the apartment building in September and October, 1979, and it is the licensee listed with the Petitioner. The license control number is 23-08555H. Michael Cohen, the named Respondent, is the President of the 13251 Corporation, Inc. On September 24, 1979, Inspector John D. McKinnon, an employee for the Petitioner, went to the Respondent's apartment building at 13251 Northeast Memorial Highway, North Miami, Florida, for purposes of conducting a premises inspection. In apartment 3, one of the units in the apartment complex, he found that the tenant had removed a panel on the wall and placed a bucket there for purposes of catching water that was periodically leaking into the apartment. There was no evidence at this point of any active leak, nevertheless the stains on the wall showed that the leak problem did exist. The source of the water leak was never determined, leaving open the possibility that it could have been caused by some problem created by the tenants living on the second floor above apartment 3 or by a roof leak, or other source for which the owner is responsible. There was an additional problem in apartment 3 where plumbing under one of the sinks was leaking and a catch bucket had been placed to collect the water. There was a problem in apartment 9, which is also located on the first floor. In that apartment newspaper had been placed on the floor to catch water which was coming in from the ceiling. Again, the origins of that water were never discovered, whether it was the fault of some second floor tenant above apartment 9 or a roof leak, or other source for which the owner is responsible. An examination of the grounds adjacent to the apartment building revealed tall bushes and weeds and a number of bottles, cans and pieces of paper. This inspection by McKinnon was a "call back" inspection which followed an earlier inspection of September 11, 1979, that earlier inspection revealing the same deficiencies.
Recommendation It is RECOMMENDED that the Respondent, 13251 Corporation, Inc., holder of license No. 23-5555t to trade as Capricorn Apartments at 13251 Northeast Memorial Highway, North Miami, Florida, he fined in the amount of Fifty Dollars ($50.00) for the violation established through Count III and in a similar amount for the violation established in Count V. (In keeping with the opportunity to submit Proposed Findings of Fact, Conclusions of Law and a Recommendation, the Respondent has submitted its proposal. Its proposal has been reviewed in preparing the Recommended Order and to the extent that it is not inconsistent with the Recommended Order, it has been utilized. To the extent that it is inconsistent, it is hereby rejected.) DONE AND ENTERED this 1st day of April, 1980, in Tallahassee, Florida. CHARLES C. ADAMS, Hearing Officer Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301 (904) 488-9675 COPIES FURNISHED: Harold F.X. Purnell, Jr., Esquire General Counsel Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32301 Malcolm B. Wiseheart, Jr., Esquire Suite 402, Security Trust Building 700 Brickell Avenue Miami, Florida 33131
Findings Of Fact The parties stipulated to the following matters which are incorporated in and made a part of the Findings of Fact: The Respondent, Raymon Johnson, holds residential contractor's certificate Number CR C--4461. The Respondent entered into a written agreement with Gary J. Stearman and Michelle Talisman to construct a residence at 2911 NE 9th Street in Gainesville, Florida, for $32,000. The Respondent represented to the owners that the house would have a one-year warranty. On or about December 12, 1979, the Respondent was notified by Al Davis of the City of Gainesville that there were code violations involved with the property at 2911 NE 9th Street, and that based upon these violations a certificate of occupancy could not be issued. On or about June 5, 1980, the Board of Adjustment denied Respondent's appeal of the code violations and instructed Davis to provide Respondent with a list of all the code violations to be corrected before a certificate of occupancy could be issued. As of June 12, 1980, Respondent had not corrected all of the code violations. Johnson was initially advised of three code violations. These were improper wood siding, improperly attached roofing shingles, and improper holes and coverage of holes in the house's foundation. Johnson took steps to properly cover the holes in the foundation, had the subcontractor re-nail the roofing shingles, and controverted the allegation that the siding was improper. Subsequently, Davis refused to approve the roof on the basis that in raising the shingles to add the fourth nail the subcontractor had broken the seal on the self-adhering shingles, irreparably damaging the shingles. Eventually, the roof was completely replaced, although the roofing contractor could not fix the exact date. This was done without cost to the home owners. With regard to the siding, Davis based the determination that the wood was not suitable for siding on the determination that its moisture content exceeded the code requirements, which he in turn based upon the fact that the rough-sawn siding was not grade stamped. Lumber is grade stamped by lumber mills. The right to grade stamp is granted by independent manufacturer's associations to mills which cut and dry lumber to the specifications of such associations. Careful review of the Gainesville Building Code does not reveal any requirement that rough-sawn wood siding which is not structural or load-bearing to be grade stamped. See Section 1700.3 (page 17-2) and Section 1700.4 (page 17-4), Petitioner's Exhibit 3. The code does provide that lumber two inches thick or less will not contain more than 19 percent moisture at the time of permanent incorporation in a building. See Section 1700 6 (page 17-2), Petitioner's Exhibit 3. Johnson initially took samples of the siding from the four sides of the house to a lumber mill which graded lumber and had equipment for establishing moisture content. The results of the test of these samples were reported in a letter from Donald Carswell dated December 22, 1979. See Petitioner's Exhibit 5. Carswell testified at the hearing that he used the same test on Johnson's samples that was used on the lumber which the mill grade stamps. The samples from the house contained from 7 to 14 percent moisture content. Davis refused to accept this letter as proof that the wood was permissible for use as siding because the test showed the current moisture content and not the content as of the date it was installed on the house. Johnson then provided Davis with a letter dated January 21, 1980, from James Griffes, whose mill had cut the wood siding in question. See Respondent's Exhibit 3. Griffes also testified at the hearing that the lumber in question was rough-sawn heart yellow pine and had been stacked for four months prior to sale to Johnson. In Griffes' opinion the lumber was at least of utility grade. He testified that the lumber was dry enough to meet the standards in his opinion. Davis refused to consider the letter as proof of the moisture content because the lumber was not grade stamped. Rough-sawn lumber is not grade stamped, although it is graded, because the stamping operation is a part of the planing procedure. Johnson advised Davis that he was aware of rough-sawn lumber from Griffes' mill having been used in Gainesville. Davis indicated that when it had been used it was under circumstances in which an architect had approved the plans and accepted responsibility for its use. Johnson then provided Davis with a letter, Respondent's Exhibit 2, from H. J. Kelley, Professional Engineer, dated January 22, 1980. In this letter Kelley stated, based upon the two earlier letters, that the siding met the standards of the Southern Standard Building Code, Section 1706.7, for its intended use. Davis refused to accept this as proof of the siding's appropriateness. Johnson appealed Davis' determination to the city's Board of Appeals. This appeals hearing was held June 5, 1980. In April, 1980, the home owners obtained legal counsel, and he wrote Johnson a letter dated April 23, 1980, Petitioner's Exhibit 3. Various meetings were held between the parties during this period. One of these meetings resulted in preparation of a written agreement by the home owners' counsel, Petitioner's Exhibit 4. This agreement calls for replacement of the siding and roof as well as items not found by Davis to be in violation of the code. Johnson did not execute this written agreement. On June 5, 1980, the Board of Appeals held its hearing on Johnson's appeal of Davis' determinations. This appeal apparently limited to interpretation of Sections 1700.3, 1700.5, 1702.8.1 and 1302.5 of the Southern Standard Building Code. While all of these sections were not introduced at hearing, the minutes of that meeting, Petitioner's Exhibit 1, reflect that the Board of Appeals took up matters beyond those raised on appeal. This resulted in the Board of Appeals' direction to Davis to prepare a letter to Johnson setting out all violations of code which would have to be corrected in order for Johnson to obtain a certificate of occupancy The Board of Appeals took notice that it lacked authority to direct that the matters be corrected within a specific time. See Petitioner's Exhibit 1 (page 35). Prior to the June 5, 1980, meeting, the home owners had advised Johnson not to come on the premises or to do further work on the house. They had also commenced a suit against Johnson's contractor's bond. Johnson's attorney, Costello, wrote a letter to the home owners' attorney, Michael Davis, on August 13, 1980, which outlines the events subsequent to the Board of Appeals hearing. See Respondent's Exhibit 5. By letter of June 19, 1980, Costello advised Michael Davis that Johnson agreed to perform all repairs or corrections to comply with the code requirements on the condition that the home owners grant him access to the project and abate their suit. See Respondent's Exhibit 4. Michael Davis wrote Costello on June 30, 1980, advising that the home owners would not allow Johnson to complete the repairs. Meanwhile, the home owners continued their suit against Johnson's bond, in which they eventually received the monies necessary to replace the siding using another contractor.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, the Hearing Officer recommends that no action be taken against the Respondent. DONE AND ORDERED in Tallahassee, Leon County, Florida, this 27th day of October, 1981. STEPHEN F. DEAN Hearing Officer Division of Administrative Hearings Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 27th day of October, 1981. COPIES FURNISHED: Charles T. Tunnicliff, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Mr. Raymon E. Johnson Post Office Box 13981 Gainesville, FL 32604 Samuel Shorstein, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301
