The Issue Whether Respondent committed the offenses alleged in the Administrative Complaint and the penalties, if any, that should be imposed.
Findings Of Fact Petitioner is a licensing and regulatory agency of the State of Florida charged with the responsibility and duty to prosecute administrative complaints pursuant to Chapters 455 and 489, Florida Statutes. At all times pertinent to this proceeding, Respondent was licensed as a certified building contractor and a certified roofing contractor, having been issued license numbers CC C027427 and CB C023123. At all times pertinent to this proceeding, MCI was a corporation engaged in roofing contracting, and Respondent was its qualifying agent. A re-roofing job by MCI on the shared roof of two townhouses located at 105 and 106 Woodland Road, the Village of Palm Springs, Florida (the Village), is at issue in this proceeding. These two townhouses are part of a building consisting of four townhouses. All four townhouses have a shared roof. Essentially, the work by MCI was to re-roof half of the entire roof. At the times material to this proceeding Lawrence Gauer owned the townhouse at 105 Woodland Road (Gauer townhouse) and RCM owned the townhouse at 106 Woodland Road (RCM townhouse). Both townhouses are within the permitting jurisdiction of the Village. Mr. Malt, Respondent's brother, owns RCM. Mr. Malt is a certified general contractor, developer, and real estate broker. Mr. Malt has extensive experience building townhouses, having built over 4,000 dwelling units, including the townhouses where the work at issue in this proceeding occurred. Mr. Malt also owns the company that manufactured the engineered pre-stressed concrete structural members that served as the foundation for the roof at issue in this proceeding. Mr. Malt is not a licensed roofing contractor, and his general contractor’s license does not authorize him to perform roofing work. In the fall of 1998, Mr. Malt determined that the RCM townhouse should be re-roofed. Mr. Malt contacted the owners of the other three townhouses to determine whether they wanted to re-roof their portions of the shared roof. Mr. Gauer decided to have his part of the shared roof re-roofed with Mr. Malt, but the owners of the other two townhouses declined. At all times material to this proceeding, Respondent authorized Mr. Malt to act as an agent for MCI. On January 7, 1999, MCI contracted with Mr. Gauer and with RCM to perform the work at issue in this proceeding. Mr. Gauer signed the contract in his capacity as owner of his townhouse. Mr. Malt signed the contract on behalf of RCM as owner of its townhouse. Mr. Malt also signed the contract on behalf of MCI in his capacity as its agent. The total amount of the contract was $5,000, with each owner (Mr. Gauer and RCM) being responsible for payment of $2,500. The contract required each owner to pay $1,250 upon execution of the contract with the balance due within five days ". . . of completion (inspection by the Village . . .)". On or about January 7, 1999, Mr. Gauer paid $1,850 to MCI. There was no explanation as to why Mr. Gauer paid more than the contract required on that date. Respondent's license number did not appear in the contract, and the contract did not contain a written statement explaining the rights of consumers under the Construction Industries Recovery Fund. On January 13, 1999, Mr. Malt, as agent for MCI, applied to the Village for the requisite building permits for the subject work. On January 13, 1999, the Village issued two separate permits, one for each townhouse, authorizing the re- roofing work contemplated by the subject contract. Each permit reflected that the valuation of the work was $2,500. Consistent with the applicable building code, the Village's building department issued a notice with each permit that because the roof was flat, the roof had to provide positive drainage to prevent the ponding of water or the roof had to be constructed of specific water retaining material. Mr. Malt, as agent for MCI, hired the crew that performed the roofing work at issue in this proceeding. At all times material to this proceeding, Mr. Malt supervised the roofing crew that worked on the two townhouses. Prior to beginning work on the roof, Mr. Malt checked weather forecasts for the area. On January 13, 1999, the roofing crew removed the existing roofing material from the roof. At the end of the workday, the crew covered the exposed roof with plastic sheeting commonly referred to as Visqueen. For a flat roof, the accepted standard in the roofing industry is to remove only as much roofing material as can be replaced with finished roofing material the same day. A plastic sheeting such as Visqueen is inadequate to protect an exposed flat roof from a heavy rainfall. The failure to adequately protect the exposed roof on January 13, 1999, constituted negligence. On the night of January 13, 1999, an unexpected heavy rainfall event occurred. As a consequence of the rainfall and the inadequately protected roof, substantial amounts of rainfall intruded in both townhouses, causing extensive damage. The work crew spent most of January 14, 1999, cleaning up following the rain event the previous day. As of Friday, January 15, 1999, the roof was still exposed. On that date, MCI installed a base coat of hot asphalt and insulation, which was inadequate to waterproof the flat roof. At the end of the workday, the roofing crew covered the roof with Visqueen and left for the weekend. On January 16, 1999, additional heavy rains occurred. Again, as a consequence of the rainfall and the inadequately protected roof, substantial amounts of rainfall intruded in both townhouses, causing additional damage to both townhouses. The failure to adequately protect the exposed roof constituted negligence. Mr. Gauer's homeowner's insurance company paid his policy limits for emergency services and repairs to his townhouse. The repairs were completed on or about February 19, 1999. Mr. Gauer subrogated his rights against MCI to his insurance company. There was a civil action pending by the insurance company against MCI at the time of the final hearing based on the subrogation rights. Mr. Gauer's homeowner's insurance did not cover damages to his or Mr. Poitivent's personal property. The value of those losses was not established. During the week beginning January 18, 1999, MCI installed new roofing material on the roof. In doing so, the roofing crew covered the clothes dryer vent for each townhouse with roofing material. As a result, Mr. Gauer's clothes dryer did not vent properly, and he paid an independent contractor $250.00 to inspect and clean out the dryer vent. MCI promptly corrected the deficient work after Mr. Gauer told Mr. Malt that his dryer vent had been covered during the re-roofing. The accepted standard in the roofing industry is that roof vents are not to be covered over without some specific instruction to do so. MCI's failure to adhere to that standard constituted negligence. MCI asserted that it completed the roofing work in 1999. At the times pertinent to this proceeding, Craig Johns was a building inspector for the Village. Mr. Johns inspected the subject roof on the following dates in 1999: June 15, July 15, August 12, and August 30. Following each inspection, Mr. Johns found that the roof did not pass inspection. Among other deficiencies, Mr. Johns found that the roof did not provide positive drainage, which was required for a flat roof covered in asphalt. 2/ As of the final hearing, MCI had not obtained a passing final inspection from the Village's building department. Mr. Malt established that Respondent had just cause to believe that MCI had completed all work on the project in 1999. Consequently, Respondent is not guilty of abandoning the work within the meaning of Section 489.129(1)(k), Florida Statutes (1997). As of June 15, 2001, Petitioner's costs of investigation and prosecution in this case, excluding costs associated with attorney's time, totaled $794.23. 3/
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner enter a final order finding Respondent guilty of the violations alleged in Counts I, II, V, and VI of the Administrative Complaint. The recommended penalty for the violation alleged in Count I is an administrative fine in the amount of $100. The recommended penalty for the violation alleged in Count II is an administrative fine in the amount of $100. The recommended penalty for the violation alleged in Count V is an administrative fine in the amount of $500. The recommended penalty for the violation alleged in Count VI is an administrative fine in the amount of $500. It is further recommended that the final order require Respondent to pay Mr. Gauer restitution in the amount of $250. It is further recommended that the final order require Respondent to pay investigative costs in the amount of $794.23. DONE AND ENTERED this 5th day of November, 2001, in Tallahassee, Leon County, Florida. CLAUDE B. ARRINGTON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 5th day of November, 2001.
The Issue The ultimate issues to be resolved in this proceeding are whether the Respondent has committed violations of statutes relating to licensed contractors and, if so, the appropriate penalty that should be imposed. The Administrative Complaint is in six counts. The first five counts basically allege that the Respondent aided and abetted unlicensed persons to practice contracting by allowing these persons to use his license in order to obtain building permits to do roofing work. In Count Six, it is charged that the Respondent has engaged in continuing acts of misconduct. At the hearing, the Department dismissed allegations that the Respondent violated provisions of local building codes. The Respondent denies all of the allegations.
Findings Of Fact The Respondent has been certified by the Construction Industry Licensing Board as a general contractor (License No. CG C011050) and as a roofing contractor (License No. CC C001794). The Respondent also holds a real estate broker's license and a mortgage broker's license. The Respondent has developed apartment complexes, and housing and business developments. The Respondent is not presently active in roofing contracting, but he was during the period from 1979 through 1981. Be has been in business in Florida since 1967. The Respondent had qualified Kirk, Inc., with the Construction Industry Licensing Board to do general and roofing contracting. The Respondent is president of Kirk, Inc. The Respondent did not qualify any other entities to do contracting work under either of his licenses during the times material to this proceeding. For approximately eighteen months during 1979 and 1980, the Respondent had a business relationship with Edward G. Tindall. Tindall had worked for the Respondent'5 father and was having financial difficulties. Tindall had some experience in the roofing business, and the Respondent sought to use Tindall to manage Respondent's roofing contracting business. Tindall was to be paid a supervisory rate plus other fees. Tindall was to solicit roofing jobs; enter into contracts with customers on behalf of Kirk, Inc.; and perform the roofing jobs. Tindall was not licensed in any capacity by the Construction Industry Licensing Board, and he was therefore not authorized to obtain building permits from the City of Titusville, where most of the jobs were located. Tindall did not perform work in accordance with the agreement with Respondent. Instead, Tindall had stationery and business cards printed which were labeled "Tindall Roofing Company, a division of Kirk, Inc." When Tindall got a roofing job, he did not reduce it to contract on a Kirk, Inc., form as he was supposed to do. Rather, he operated on the basis of oral contracts. He advised personnel at Kirk, Inc., who were qualified to obtain building permits, that he had obtained the jobs, and building permits were secured. Thereafter, Tindall would typically tell Kirk, Inc., employees that the job had fallen through. In the meantime, Tindall completed the work, often using Kirk, Inc., equipment, supplies and workers, and kept the proceeds for himself. The Respondent did not become aware of Tindall's activities until sometime late in 1980. When he learned what Tindall was doing, the Respondent fired Tindall and another employee. In August, 1979, Tindall contracted to repair a roof at the Florida Power and Light Building in Titusville, Florida. Be advised Kirk, Inc., of the contract, and the qualified person at Kirk, Inc., obtained a permit from the City of Titusville to complete the work. Tindall then advised that the project had been cancelled and completed the work himself. The roof was not completed in accordance with Tindall's agreement with Florida Power and Light and was constructed in a manner contrary to the City of Titusville building code. The Respondent was unaware that this had occurred until sometime late in 1980. During September, 1979, Tindall contracted with Donald Klongerbo to reroof Klongerbo's home in Titusville, Florida. Tindall obtained a building permit by utilizing Kirk, Inc., employees, then advised that the contract had fallen through. Tindall then completed the work himself. The Respondent did not know that this had occurred until sometime late in 1980. During approximately October, 1979, Tindall contracted to repair a roof on a warehouse in Titusville, Florida, that was owned by B. S. Brown. The Respondent authorized Tindall to obtain a building permit from the City of Titusville for this one project in accordance with the City of Titusville code. Tindall then advised that the contract had fallen through and completed the work himself. The work was completed in a substandard manner, and the roof leaked. The Respondent did not learn that this had occurred until sometime late in 1980. He endeavored to repair the poor work that Tindall had performed. During June, 1980, Tindall contracted to repair the roof on a residence owned by Gwen O. Mills in Titusville, Florida. Tindall obtained a building permit from the City of Titusville by utilizing personnel at Kirk, Inc. After obtaining the permit, Tindall advised that the contract had fallen through and completed the work himself. The work was completed in a substandard manner and eventually needed to be completely redone. Respondent did not learn of this incident until late in 1980. During the investigation of this matter, Tindall gave a written statement which was reduced to writing and which he signed. The statement supports the version of the facts alleged in the Administrative Complaint. At the final hearing, Tindall gave testimony consistent with that version of the facts. On two other occasions, Tindall signed affidavits to a totally different effect. In one of them, he admitted that he obtained the building permits by making untrue statements to the Respondent and other personnel at Kirk, Inc. At the hearing, Tindall gave testimony which supports this version of the facts. In evaluating Tindall's testimony, due regard has been given to the conflicting affidavits that he signed, to the conflicting testimony that he gave at the hearing, and to his demeanor as a witness. It has been concluded that his testimony is utterly incredible and not worthy of being believed. During May, 1981, Vernon Crosby, who did business as Crosby Painting and Decorating, was performing work at an apartment complex owned by Hewitt Properties, Inc. The apartments are located in Titusville, Florida. Roofing repairs were necessary for several of the buildings. Crosby talked with David Lawhorn, an experienced roofing worker, about the project and, based on that discussion, gave an estimate of the expense to Hewitt Properties. Crosby was asked to perform the work. He hired Lawhorn to accomplish it. Neither Crosby nor Lawhorn is a licensed contractor, and neither was authorized to obtain building permits from the City of Titusville. Lawhorn commenced work without obtaining a permit. Upon learning that work was being undertaken without a permit, personnel of the City of Titusville promptly and properly stopped the work from proceeding further. After work was stopped by the City, Crosby contacted the Respondent about the problem. The Respondent agreed to obtain a building permit for the work. The permit was obtained, and Lawhorn completed the work as he had agreed with Crosby to do. The Respondent was never in contact with Lawhorn about this project. Lawhorn's work was not supervised either by the Respondent or by Crosby. The only input that the Respondent gave to the project was obtaining the building permit. Due to ambiguities in the testimony, it is impossible to glean how much the Respondent was paid, but it is apparent that he was compensated and that he did nothing to earn compensation except obtain a building permit. The Respondent testified that he considered Crosby the agent of the apartment owner. Be testified that he viewed himself as the contractor and Crosby as his super visor. He testified that Crosby was to supervise Lawhorn's work on Respondent's behalf. This version of the relationship has not been credited because it is not supported by she testimony of either Crosby or Lawhorn. Crosby and the Respondent had had business dealings in the past, and it appears that the Respondent obtained the permit in part as a helpful gesture to Crosby. It does not appear that the Respondent ever anticipated performing a roofing job at the apartment far complex. His motivation, instead, was to obtain a building permit to allow persons who could not otherwise obtain a permit (Crosby and Lawhorn) to perform the work. There is insufficient evidence to support a finding that the Respondent has been guilty of any continuing course of misconduct in the practice of contracting. The only misconduct that has been established is in connection with the obtaining of a single building permit.
Findings Of Fact Respondent, Harry Clinton Brackin, is a licensed registered roofing contractor holding license number RC0045880. Respondent was licensed at all times material to this action. Respondent is the owner and licensee for Brackin Roofing Company. Sometime around February 20, 1987, Respondent entered into a contract with Mrs. Arebelle S. Hughes, an elderly woman, to re-roof her house and remodel the front porch of her home located in Vernon, Florida. In addition to the work performed pursuant to the contract, there were verbal construction agreements between Mrs. Hughes and Respondent for the remodeling of the back porch, removing and closing out windows, replacing and framing doors, placing molding in the kitchen and various other carpentry repairs. Ms. Hughes asked Respondent to perform the additional work because she was well satisfied with the roofing job done by Respondent and she was unable to find a licensed contractor willing to come to Vernon and perform the work she wanted done. Respondent, in fact, informed Ms. Hughes he was not a contractor and in his opinion she needed a contractor. However, Ms. Hughes still wanted Respondent to do the additional work for the above reasons. Later, Mrs. Hughes became very dissatisfied with the quality of Respondent's remodeling work and advised the Respondent of her complaints. However, the evidence disclosed that her complaints were not well communicated and Respondent did generally try to meet Ms. Hughes' requests. None of Respondent's work constituted a hazardous condition and no evidence was offered which indicated an actual building code violation. The Respondent has not corrected the work. Mr. Harold Benjamin, an expert in the area of general contracting, reviewed the contract, the job site, the Respondent's license, and the pertinent Florida Statutes. Mr. Benjamin's expert opinion was that the Respondent's contracting job with Mrs. Hughes definitely exceeded the scope of Respondent's roofing license. Mr. Benjamin added that the carpentry work itself demonstrated an unfitness in the area of carpentry contracting and that Respondent's work did not in some respects meet the minimum carpentry standards for the industry. However, Respondent's work was not so bad as to constitute gross negligence in the area of contracting. This is particularly true since Respondent disclosed to Ms. Hughes that he was not a contractor and that the work she wanted done should be performed by one. Respondent's duty was thereby limited to a duty to perform reasonably given his abilities. Respondent did meet that duty. Respondent was disciplined for the same type of violation in 1986.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That the Department of Professional Regulation, Construction Industry Licensing Board impose an administrative fine of $2,500.00. DONE and ORDERED this 5th day of December, 1988, in Tallahassee, Florida. DIANE CLEAVINGER Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 5th day of December, 1988. APPENDIX TO RECOMMENDED ORDER, CASE NO. 88-2721 The facts contained in paragraphs 1, 3, 4, 6, 7 and 9 of Petitioner's Proposed Findings of Fact are adopted in substance, in so far as material. The facts contained in paragraphs 2 and of Petitioner's Proposed Findings of Fact are subordinate. The facts contained in paragraph 8 of Petitioner's Proposed Findings of Fact are adopted except as to the finding pertaining to gross negligence which is rejected. COPIES FURNISHED: Elizabeth R. Alsobrook, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 Harry Clinton Brackin Route 1, Box 2470 Chipley, Florida 32428 Bruce D. Lamb, Esquire General Counsel Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 Fred Seely, Executive Director Department of Professional Regulation Construction Industry Licensing Board Post Office Box 2 Jacksonville, Florida 32201
Findings Of Fact Jurisdiction findings Petitioner is the state agency charged with regulating licenses for roofing contractors in the State of Florida. At all times material to the allegations of these cases, Respondent held two licenses; he was a certified roofing contractor, license no. CC CO55580, and a registered roofing contractor, license no. RC 0060386. Respondent filed an application to qualify the company, D.S.S. & Sons, Inc., as a licensed roofing contractor; however, he failed to complete all documents necessary for licensure, and his application was closed for lack of response effective August 3, 1993. Respondent's address of record with the Department is 821 SW Dwyer Street, Port St. Lucie, Florida 34983. D.S.S. & Sons, Inc. is not now, nor has it ever been, licensed to perform roofing construction by the State of Florida. Facts common to all consumers On or about August 24, 1992, Hurricane Andrew struck Dade County, Florida, resulting in damage to hundreds of roofs. Roof repair or total replacement following the storm was not uncommon. Due to the large amount of damage, and the demand for roofing materials created by the volume of work to be performed, some contractors had difficulty obtaining roofing supplies. Additionally, some contractors had difficulty hiring qualified labor to perform the extensive roofing that was in great demand. The problems with obtaining materials and labor, however, were short term in that most roofing contractors made arrangements to bring in supplies and staff from other areas. In fact, by the time the work was to be performed in connection with these cases, the problems which had plagued the Dade County contractors were subsiding. Additionally, at all times material to these cases, the weather would not have been a factor to justify the delays complained of by these consumers. Rainy weather did not cause any prolonged work delays after the storm. Findings as to Helmly Charles Helmly resides at 11985 SW 98th Lane, Miami, Florida. His home was damaged by Hurricane Andrew and required roof replacement. Mr. Helmly contracted with Respondent to re-roof his home for the sum of $17,940.00. The contract was signed by Respondent's salesman, Felix Fowler, and identified D.S.S. & Sons, Inc. doing business as Darryl Saibic, Roofing Contractor as the licensed entity. Mr. Helmly paid an initial deposit of $5,382.00 in order for the Respondent to begin work on the project. The next payment, an additional $5,382.00, was to be due at the "dry in" stage of the job, with the final payment (the balance) due on completion. One of the contract provisions Mr. Helmly insisted upon was a completion deadline to be stated in the contract. He was expecting visitors and he was anxious to have the home re-roofed before their arrival. He insisted that a guaranteed completion date of March 7, 1993 be noted on the face of the contract. Mr. Helmly complied with all requirements of the payment schedule outlined by the contract. In fact, he remitted $10,764.00 even though the roof had not been at the "dry in" stage. Between January and February, 1993, the Respondent removed the old roof, installed a base sheet, and nailed a single ply roof membrane to the roof. After February, 1993, the Respondent failed to timely complete the Helmly roof. The value of the work performed by Respondent on the Helmly roof was no more than $3,588.00. The Respondent did not respond to numerous telephone calls and letters from Helmly, and threatened to place a lien on the Helmly property when Mr. Helmly attempted to cancel the contract in May, 1993. Mr. Helmly went to the Dade County Building Department and complained about roof leaks in June, 1993 (Respondent had still not done any further work). On or about June 4, 1993, Respondent sent a crew to the Helmly property to repair the roof. The repairs caused the roof to leak more. Respondent did not refund Mr. Helmly's money, did not complete the roof, and showed a gross indifference to the plight which resulted when he failed to timely complete the project. In July, 1993, desperate to have his roof completed, Mr. Helmly offered to purchase the tiles himself if Respondent would have a crew come install the new roof. Respondent agreed to have a crew install the tile within ten days of its arrival. On September 17, 1993, Mr. Helmly took delivery of the new tile, paid for it in full (a cost of $4,803.00) and notified the Respondent so that the installation could begin. Respondent never returned to complete the re-roofing. He failed to honor his verbal agreement to install the tiles. By letter dated October 1, 1993, Respondent offered to reimburse Helmly for the overage if he would hire another contractor to complete the job. On October 19, 1993, Mr. Helmly hired a new contractor who completed the installation of the new roof in early November, 1993. Approximately eight months after the deadline on Respondent's contract, Mr. Helmly had his new roof. Extra expenses totalling $2,936.21 were paid by Mr. Helmly as a result of the Respondent's abandonment of this job. Findings as to Gurdian On January 14, 1993, the Gurdians contracted with Respondent through his agent, Ed Comstock, to repair the roof on their home located at 13301 SW 110 Terrace, Miami, Florida. The contract was executed as D.S.S. and Sons, Inc. d/b/a Darryl S. Saibic, Roofing Contractor and called for a total payment of $7,725.00 for the work to be done. The Gurdians made a deposit of $2,300.00 on January 14, 1993 by check made payable to D.S.S. and Sons, Inc. and received a partial release of lien. On February 8, 1993, the Respondent pulled a permit for the Gurdian home but never called for inspections on this project. In February, 1993, all the tiles were removed from the roof and roofing paper was installed. On March 1, 1993, the Gurdians made a second payment of $2,300.00 by check made payable to D.S.S. and Sons, Inc. and received another partial release of lien. The Respondent did not timely complete the Gurdian roof. From June through November, 1993, Respondent sent the Gurdians unsigned notices claiming he would return to their job but did not do so. Numerous excuses were offered as to why the project was not completed; however, none of these had merit. The Gurdians waited until April, 1994 hoping the Respondent would return and complete the work. They drove to Respondent's office and left a message seeking assistance. Finally, Respondent recommended a company called CTI to complete the roof work for the Gurdians. When contacted, CTI told the Gurdians it would cost $7,600.00 to complete their job for which they, not Respondent, would be responsible. The Gurdians then attempted to notify the Respondent at his address of record by certified mail of their continuing problems but the letter was returned to them unopened. In June, 1994, the Gurdians hired another company to finish their roof which was finally complete and passed inspections on July 26, 1994. The Gurdians were required to pay a total of $13,475.00 to have their roof replaced because the Respondent failed to perform under the original contract. Due to the Respondent's abandonment and indifference in connection with this project, the Gurdians were damaged in an amount not less than $4,200.00. The value of the work performed by Respondent on the Gurdians' roof did not exceed $1,545.00. Respondent has not refunded any of the funds paid by the Gurdians. Findings of fact as to Vila Marta Vila resides at 11116 SW 133 Place, Miami, Florida 33186. Like the others discussed above, the Vila home was damaged and required a new roof. On January 13, 1993, Vila signed a contract with Ed Comstock acting on behalf of D.S.S. and Sons, Inc., doing business as Darryl S. Saibic, Roofing Contractor, to have her roof repaired for a total contract price of $7,200.00. A down payment of $2,160.00 made payable to the company was made at that time. On February 8, 1993, Respondent pulled a permit to re-roof the Vila home. On February 15, 1993, Vila paid an additional $2,160.00 to Respondent. At that time Respondent removed the tiles from the Vila roof and installed one layer of roofing paper over the roof decking. Despite representations from Respondent that new tiles would be delivered in approximately three to four weeks, the Respondent did not install a new roof on the Vila home. In February and March, 1993, the roof was patched three times to stop leaks but no substantive work was performed to install new tiles. Respondent did not return to the Vila home despite numerous requests from the homeowner for the work to be completed. In June, 1993, Respondent represented that the Vila job might be completed if the tiles were sent out COD. When Vila attempted to verify that information, she was told she had paid enough to not have that concern. However, no tiles were ever delivered to her home. In August, 1993, Vila, after Respondent failed to return telephone calls, wrote to Respondent and demanded a refund. She has not received one. Vila ended up paying $7,754.00 to another contractor to have her roof replaced. The value of the work performed by Respondent on the Vila project did not exceed $1,440.00 yet he has failed or otherwise refused to refund the difference between that amount and what she paid. Vila has suffered monetary damages in an amount not less than $4,800.00 as a result of Respondent's abandonment of this project. Findings of fact as to Bermudez Mr. and Mrs. Bermudez reside at 8335 SW 147th Place, Miami, Florida. On November 30, 1992, they signed a contract with Respondent in the amount of $6,400.00 to correct extensive leakage on both floors of the Bermudez home. Mrs. Bermudez gave a deposit in the amount of $1,860.00 and was told that the repairs would begin in two weeks and be completed in approximately five weeks. In December 1992, and January, 1993, the Respondent performed some minor patching but no significant work was undertaken to repair the Bermudez home. In January, 1993, Respondent pulled a permit to replace the Bermudez roof. Within a week of the permit, Respondent sent an unsigned form letter to the Bermudez advising them that there would be delays. In February and March, 1993, the Respondent's crew stripped the old tile off the Bermudez home and installed batten and roofing paper over the decking. Mrs. Bermudez made deposits totalling $3,720.00 to Respondent in connection with this contract. Despite numerous requests from Mrs. Bermudez, Respondent did not complete the roof. In July, 1993, Respondent sent a crew to the Bermudez home in connection with a leak but the repair did not resolve the problems and did not substantively finish the roof. As with the other cases, between July and November, 1993, Respondent sent numerous unsigned form letters to Mrs. Bermudez offering false or ridiculous excuses for why the project had not been completed. In January, 1994, Mrs. Bermudez filed a formal complaint against Respondent but he never completed the job nor refunded the deposits. Between March and July, 1994, Respondent represented he would complete the Bermudez job but did not do so. The Bermudez roof was not completed until December 13, 1994. As a result of Respondent's incompetence, inability, or refusal to complete the Bermudez roof, the family lived with a leaking roof for approximately two years and incurred unnecessary expenses. Respondent showed a gross indifference to the plight of the Bermudez family. Respondent could not have timely completed the projects described above during the period July, 1993 to July, 1994, as his workers compensation had expired. The numerous promises to perform the contracts as originally agreed were meaningless.
Recommendation Based on the foregoing, it is, hereby, RECOMMENDED: That the Department of Business and Professional Regulation, Construction Industry Licensing Board enter a final order revoking Respondent's licenses, requiring Respondent to make full restitution to the consumers in these cases before being entitled to seek new licensure, imposing an administrative fine in the amount of $10,000, and assessing costs of investigation and prosecution of these cases as set forth in the affidavits filed in this cause. DONE AND RECOMMENDED this 25th day of October, 1995, in Tallahassee, Leon County, Florida. JOYOUS D. PARRISH 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 25th day of October, 1995. APPENDIX TO RECOMMENDED ORDER, CASE NOS. 95-1079, 95-1080, 95-1081, 95-1082 Rulings on the proposed findings of fact submitted by the Petitioner: 1. Paragraphs 1 through 155 are accepted. Rulings on the proposed findings of fact submitted by the Respondent: 1. None submitted. COPIES FURNISHED: Elizabeth Masters Senior Attorney Department of Business and Professional Regulation 7960 Arlington Expressway, Suite 230 Jacksonville, Florida 32211 Darryl Saibic 821 S.W. Dwyer Road Port St. Lucie, Florida 34983 Richard Hickok Executive Director Department of Business and Professional Regulation Construction Industry Licensing 7960 Arlington Expressway, Suite 300 Jacksonville, Florida 32211-7467 Lynda L. Goodgame General Counsel Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792
Findings Of Fact At all times pertinent to the allegations obtained herein, Respondent was a registered building contractor holding license number RV0010136 issued by the State of Florida. His address was Route 4, Box 48-M, Lake City, Florida. On April 4, 1982, Respondent entered into a contract with Michael D. Allen of Route I, Box 453, Live Oak, Florida, for the construction of a single- family residence on the Allen property for a contract price of $75,476. The contract was finished sometime in January 1983, and the Allens moved in that month. During some high winds shortly after they moved in, several shingles blew off the roof, exposing the underlying tar paper. The next day after the storm, Allen went out and saw approximately three or four shingles on the ground. When he picked them up and looked at them, he saw that they had no nail holes or staple holes in them. Allen immediately pulled his tractor up to the house and stood on the seat so he could take a close look at the roof. When he did so, he found that he could not see a nail, staple or hole in the roof where these particular shingles had come from. In addition to that area denuded of shingles by the storm, Allen also lifted up a few other shingles and found what to him was evidence of improper installation. As a result, Allen went to a building supply house in the area and bought a package of the same shingles previously installed on his house by the Respondent in order to get the nailing instructions that came with them. Allen bought the shingles from the same supply house where Respondent had purchased the ones installed on his property. After examining the instructions which came with the shingles he purchased, Allen then called the office of the building inspector and spoke with the Chief Building Inspector, Mr. Pat Sura, who came out to inspect the roof. Allen went up on the roof with Sura and lifted several shingles in different places to see how they were affixed. In most cases, he found two staples in each shingle, but in some cases he found none. Of the 20 or so tabs he lifted (each shingle having three tabs), he found that some, but not many, were nailed in three places. Sura confirms the fact that he was called by Allen. After the call, Sura checked his files and found that the permit for construction of the house was issued to Allen with Respondent listed as the contractor. When the complaint came in from Allen, Sura asked Mr. Cherry, a Department investigator, to go out and look at it with him, as is his standard practice. Sura does not recall exactly when this was done, but it was shortly after the call from Allen. Sura went up on the Allens roof with Cherry and pulled up a few tabs to look for the nailing pattern. He found that the nailing pattern was misaligned, that a stapling gun was used, and that both staples and nails were, in his opinion, too short. Based on this viewing, Sura called a Mr. Canepa, who was a representative of the shingle manufacturer at the time, and asked him to inspect the roof himself. Canepa also found both nails and staples and pulled at least one of each out of the roof. He did not take many, however, because most of the shingles had only one or two fasteners per shingle. The ones that were pulled, however, were pulled from shingles that had four nails or staples in them. Sura also went into the attic on the first visit with Cherry and examined the roof from the inside. He found very few staples or nails protruding through the inside of the subroof. Approximately 40 percent of the nails were not showing through. Based on his examination, Sura concluded that approximately 70 percent of the shingles were not properly fixed, having three or less fasteners per shingle. Only 30 percent had four. These figures were based on spot samples from different sections of the roof. In Sura's opinion, it appeared to him that the staple gun used to apply the staples was out of order. The top of the staple is supposed to be horizontal to and flush with the top surface of the top shingle. Many of the staples and nails which he observed were not horizontal. In some cases, the cross piece on top of the staple extended as much as an eighth of an inch above the tab and had not been hammered down. In Sura's opinion, at least 70 percent of the staples he examined were in that condition. Unless the staple is flush with the roof, the result is that the staple does not go in far enough and also makes a raised area on the shingle. According to the standards of the National Asbestos Roofing Manufacturer's Association (NARA), either nails or staples are supposed to be inserted below the glue tab on the shingle approximately five-eights inch above the top of the cut-out. A fastener is supposed to be above the top of the cutout and on each end. This would result in four fasteners per shingle. Sura found that in most cases the fasteners were on the glue tab or above it, very few were below it. An examination of 24 separate shingles revealed that those which had four fasteners were either crooked, raised or in the wrong place and, of these, 40 percent were in the wrong place. The building code of Suwannee County does not contain detailed specifications of how shingles are to be installed. The code refers to other specifications, such as the NARA standards, and incorporates them by reference. On one of the visits Sura made to the Allen home, the Respondent was also present with at least one of his sons. At Sura's request, Respondent or his son gave Sura some staples which he said are the type used on this job. However, Sura's examination revealed that these staples are not like the ones he took out of the roof. The staples used in the roof were three- quarter inch staples. Sura contends the ones given him by the Respondent were one-inch staples. At the hearing, Respondent and both his sons testified that they used three-quarter inch staples and did not give Sura one inch staples. The likelihood is that the proper sized staples were used. The roofing of the Allen house was accomplished by using a one-half inch plywood decking (actually 15/32 inch). A sheet of felt is laid over the decking and the shingles laid over the felt. In some cases, the fastener is driven through all of that plus an additional tab as well. As a result, the fact that no staple or other fastener was protruding through into the attic is not necessarily pertinent, and the use of a three-quarter inch staple could be acceptable if it was installed properly. As to the flush nature of the staple, a slight variance is accepted. It was recognized that it is impossible to get an exactly flush installation. The degree of acceptable variance is a subjective call, however. The staple that was removed by either Sura or Canepa (there is some uncertainty as to who pulled the staple but no uncertainty that one of the two actually accomplished that task) was protruding approximately one-eighth inch above the surface of the shingle. Gordon K. Perry, Respondent's son and employee, worked on the Allen house as the roofer. He, another brother, and a third employee worked as a team to install the roof, with his brother on the lower line, himself in the middle, and the other employee-on the upper line. As he and his associates laid the shingles, Perry, as the man in the middle, affixed them to the roof with a stapling gun. Perry indicates that he installed the shingles exactly as called for in the instructions contained on the wrapper around the shingles as they come from the manufacturer. Perry contends he used four staples to each shingle, and always does, but admits he might have missed one once in a while. Perry tried to affix the staples so they are flush with the shingles, but admits he might have missed one once in a while. If the gun misfires and leaves it protruding above the shingle, he and his team members all had hammers with which they would hammer the protruding staple down flush with the shingle. He contends he had no trouble installing this roof and that the gun he used was working properly. This testimony was confirmed by that of the other son, Frederick L. Perry, who also indicated that the crew followed the instructions on the wrapper for the installation of the shingles with one exception at the corner a staple was driven through two shingles instead of one. This procedure would however, in his opinion, at least meet the requirements and he feels even exceed them. He observed the way his brother was stapling the shingles on the Allen roof and could see nothing wrong with the procedure followed. His father, the Respondent, came to the job site frequently during the three days it took to install the Allen's roof and actually came up on the roof to observe but did not do any of the actual installation work. He explains the reason for the four or five loose shingles dislodged by the wind as being the result of the air hose for the staple gun getting caught under the tabs of these several shingles while the crew was working with the gun on the other side of the roof. When Mr. Perry observed what had happened he told the employee to go back to that area, put the tabs down and tack them down. Unfortunately, he did not check to see if that was done. He subsequently found out that the employee put the tabs back down but did not affix them as instructed. When he, on this later occasion, checked this area, he saw that where the shingles had broken loose, the nails were still in the roof and the felt was still there. Finding some broken shingle pieces on the lawn, he used them to make a temporary patch for the roof fully intending to report this situation to his father immediately. He did not have an opportunity to make the permanent repair did not feel he should do so without his father's instructions. Not withstanding his father's knowledge of the situation, he received no instructions from his father to make the repairs. The final and permanent repair was accomplished approximately a week prior to the hearing after the granting of the first continuance. On that occasion when he checked the other shingles, Perry found four staples in every shingle that he checked and they were, for the most part, properly flushed. Ron W. Williams, a building contractor registered in Lake City and coincidently a member of the Board of County Commissioners, also examined the Allen's roof on June 19, 1984. Independently he went up on the roof, pulled back tabs and looked at the shingles and their method of affixing in five different locations on the roof. He could see nothing wrong with how the shingles were installed and attempted to pull several staples using a pair of pliers and screwdriver. The difficulty he experienced in extracting the shingles is, in his opinion, an indication of how well they were installed. None that he saw were raised up. Some were at a permissible angle. Mr. Williams found anywhere from 7 to 8 staples in each shingle consisting of 3 or 4 staples across the top of each shingle plus fasteners from the higher shingle as well. In his opinion the roof looked good. The lines were straight, there was no waving. He could see no indication of any problem with the shingles or of weakness or that the shingles would be subject to wind removal. Another contractor who made his inspection at the same time was D. B. Espenship, a 35 year building contractor in Lake City, who has during his career constructed in excess of 500 homes. Mr. Espenship also independently went to 5 or 6 different areas on the Allen roof and pulled up the shingle tabs. He saw nothing to indicate any problems with the way the shingles were applied. The roof looked good, the lines were straight, staples flush and the angles not bad. David Morgan, a licensed roofing contractor in Lake City for more than 15 years does mostly residential roofing including shingles. On the same date as the others described, supra, he also went up on the roof .and watched Mr. Williams do his inspection. He also did his own inspection as well. When Mr. Morgan lifted the tabs he saw the staples and could see nothing to indicate that they were improperly installed. He could see no code violations nor could he see any potential problems. The roof was in excellent shape. In fact, "about as good as you could get." Mr. Perry, Respondent, first learned of the problems with the Allen roof when he was contracted by Mr. Cherry to go out and look at it. This was shortly after the storm which removed the shingles. Cherry asked Respondent to meet with Mr. Allen and Mr. Sura at the premises. When he arrived, no one showed up. However, at approximately a half hour later, Mr. Sura came up without Mr. Cherry. Mr. Sura would not go up on the roof. He said that at that time it was "out of his hands". The matter was in the hands of Mr. Allen and Mr. Cherry. In any case, Respondent went up on the roof as requested and lifted several shingles, but could find no problem. Thereafter, when Respondent called Mr. Cherry, Cherry said he would have to talk to Mr. Sura about it. Mr. Sura indicated he would ;nail respondent a copy of Mr. Canepa's report, but he never received it. In fact until he got the administrative complaint through the mail, he contends he could never get a straight complaint from anyone. He tried to get together with Mr. Allen on several occasions, but in his opinion, could not seem to satisfy him. Respondent also went up on the roof June 19 to make another inspection. At this late date, even in light of the administrative complaint he can still find nothing wrong with the roof. The lines are straight, the proper number of staples are installed and they are installed properly. The roof is in his opinion good and he, on the record, guaranteed to replace it if, with the exception of tornado damage, the roof blows off within the next 18-20 years. Mr. Perry has been a building contractor since 1966. He does all types of construction including the construction of between 300 and 400 homes over the years. Normally he does all the work within the firm. If they are very busy however, he subcontracts some. In this case, the Allen home was built "in-house" and he, himself, worked along with his workmen. He is, in addition to being a contractor, an ordained minister in the Baptist church in Lake City and has been so for the past 20 years. He does not know Mr. Canepa and knows of no reason Mr. Canepa would have to lie. The same is true of Mr. Sura. He feels that both individuals just did not examine the roof closely enough. He contends they are mistaken in their description of the roof's condition. Mr. Sura contends that the building code in this case was violated by respondent in the following particulars; violation of the provisions of the Southern Standard Building Codes: The use of 3 or less fasteners; Placing the nails or fasteners either on or above the glue tab, Failure to have the tops of the fasteners flush with the surface of the shingle; and Failure to have the top of the staple parallel to the shingle line. All these defects were brought to the attention of the Respondent in August, 1983. No corrective action was taken until one week prior to the hearing. On balance, considering the relative probabilities and improbabilities of the testimony of the witnesses and their interest in the outcome of the proceedings, or their lack thereof, it is found that Respondent, through his roofing crew, improperly installed a large number of shingles on the Allen roof.
Recommendation Based on the foregoing, it is, therefore. RECOMMENDED That Respondent, Fred Perry, be reprimanded and pay an administrative fine of $1,000.90 which fine shall be remitted up a positive showing by affidavit of the owner or County Building Inspector that the roof defects have been corrected. DONE and RECOMMENDED THIS 10th day of August, 1984, in Tallahassee, Leon County, Florida. ARNOLD H. POLLOCK 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 10th day of August, 1984. COPIES FURNISHED: Douglas A. Shropshire Staff Attorney Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 (904) 488-0062 Terry McDavid Post Office Box 1328 Lake City, Florida 32056 Fred Roche, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 James Linnan, Executive Director Department of Professional Regulation Construction Industry Licensing Post Office Box 2 Jacksonville, Florida 32202 =================================================================
The Issue The issue is whether Respondent should have an administrative fine or other disciplinary action imposed for allegedly acting as a contractor without a license.
Findings Of Fact Based upon all of the evidence, the following findings of fact are determined: When the events herein occurred, Respondent, Edsel Mathews, operated a business under the name of Home Repair Roofing in Monticello, Florida. Records of Petitioner, Department of Business and Professional Regulation, Construction Industry Licensing Board (Board), establish that Respondent holds no licenses from that Board and thus he is not authorized to engage in any professions regulated by the Board. Gessie Lee Choice owns a residence at 1701 South Campbell Street, Perry, Florida. In 1995, her home was partially destroyed in a fire. Based on a recommendation by her lender, who was refinancing the repair work, Choice selected Respondent to repair her home. Relevant portions of the City Code of the City of Perry (City) were not made a part of this record. However, testimony established that under the licensing scheme for the City, an individual who has a specialty contractor license from the City may perform residential carpentry work if he works under the supervision of a licensed contractor. Alternatively, the same work may be performed by the license holder if the property owner obtains a building permit and signs an affidavit that he or she will be supervising the work. The license does not, however, authorize the holder to perform air-conditioning, electrical, or plumbing work even if the owner supervises the project. In addition, roofing work involving structural changes can only be performed under the auspices of a licensed roofing contractor. Respondent held a valid specialty contractor license from the City. On August 7, 1995, Choice obtained a building permit from the City and executed an affidavit stating that she would be supervising the work. Under these circumstances, Respondent was authorized to perform all work on the house except that relating to the plumbing, electrical, and air-conditioning systems. Also, he could not perform any structural work on her roof. The evidence is conflicting as to the representations Respondent made to Choice regarding his qualifications before the two parties executed a contract. The more persuasive evidence supports a finding that he represented he was a "subcontractor," but was not a licensed contractor within the Board's purview. While there is a conflict as to representations regarding his ability to perform plumbing and electrical work, it is found that Respondent simply agreed to procure for Choice a licensed plumber and electrician to do that type of work. Under the agreement executed by Choice, Respondent agreed to "furnish and perform the labor necessary for the completion" of a wide array of work. The items to be completed are listed on Petitioner's exhibit 3 and include removing asbestos from the outside of her house, enlarging three bedrooms and bath, removing an existing tin roof, installing new rafters, reroofing the home, building new cabinets and installing new plumbing and wiring for the kitchen, remodeling the existing bathrooms, building a utility room, installing new windows, insulating walls and ceilings, drywalling all ceilings, installing new carpet and vinyl, and placing vinyl siding on outside of home. Respondent established that even though the contract lists a number of items outside the scope of his authority, he intended to get licensed contractors to perform all work for which he held no authority under his city license. Choice agreed with this assertion. Despite Respondent's offer to obtain other contractors to perform the electrical and plumbing work, Choice selected her own licensed contractors to do that work. She also hired another individual to remove the asbestos from her home. Respondent performed a part of the remaining work, including the installation of a new roof. This latter work involved structural changes upon the house. Respondent made two draws totaling $13,200.00 from the escrowed funds. Also, in September 1995, Choice paid Respondent $446.00 in personal funds to purchase plywood to be placed on the floor and walls of the house. There is no allegation, however, that he failed to perform an equivalent amount of work before he was told by a Board inspector to stop working on the project. A short time after Respondent terminated work, a City building inspector, David Parker, inspected the roofing work performed by Respondent. Parker found that the truss system did not meet building code requirements. Because of numerous code violations, which are enumerated in Petitioner's Exhibit 9, the entire roof system had to be removed and reinstalled. Parker also noted that Respondent's work involved structural changes not authorized under his license. In mitigation, however, it is found that Respondent believed that he was authorized to do this work under his local license. Choice was forced to hire a licensed roofing contractor to reroof her home. That contractor described Respondent's workmanship as "not good." In order to correct the deficiencies and complete the remodeling project, Choice expended another $12,000.00 over and above her original contract price of $33,490.00. Except for this incident, there is no evidence of Respondent violating Board rules and statutes relating to contracting.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Construction Industry Licensing Board enter a Final Order finding Respondent guilty of violating Section 489.127(1)(f), Florida Statutes, and that a fine in the amount of $1,000.00 be imposed, to be paid within such time as the Board deems appropriate. A decision on Petitioner's request for the assessment of costs against Respondent under Section 455.227(3), Florida Statutes, is deferred to the Board. Finally, Counts I and II should be dismissed. DONE AND ENTERED this 4th day of November, 1997, in Tallahassee, Leon County, Florida. DONALD R. ALEXANDER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 4th day of November, 1997. COPIES FURNISHED: John O. Williams, Esquire Post Office Box 14267 Tallahassee, Florida 32317 Clifford L. Davis, Esquire Post Office Box 1057 Monticello, Florida 32345 Rodney Hurst, Executive Director Construction Industry Licensing Board 7960 Arlington Expressway, Suite 300 Jacksonville, Florida 32211-7467 Lynda L. Goodgame, Esquire Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792
