The Issue The issues in Case No. 07-4376PL are whether Respondent violated Subsections 489.129(1)(i), 489.119(2), 489.126(2)(a), and 489.129(1)(j), (m), and (o), Florida Statutes (2004),1 and, if so, what discipline should be imposed. The issues in Case No. 07-4377PL are whether Respondent violated Subsections 489.1425(1), and 489.129(1)(i) and (o), Florida Statutes, and, if so, what discipline should be imposed.
Findings Of Fact Petitioner is the state agency charged with regulating the practice of contracting pursuant to Section 20.165 and Chapters 455 and 489, Florida Statutes. Mr. Roach is, and was at all times material to this action, a certified roofing contractor in the State of Florida having been issued License No. CCC1326005. Mr. Roach's Certified Roofing Contractor License No. CCC1326005 is current and active. Mr. Roach's current addresses of record are Post Office Box 345, Orange Springs, Florida, and 22204 U.S. Highway 301, Hawthorne, Florida. At all times material to this action, Mr. Roach was a licensed qualifier for All Florida Roofing Contractors, Inc. (All Florida). There is evidence in the record sufficient to establish that Mr. Roach has been previously disciplined for a violation under Chapter 489, Florida Statutes. Notably, Mr. Roach has been previously disciplined for, among other things, violations of Subsections 489.129(1)(m) and (o), Florida Statutes. Case No. 07-4376PL Mr. Roach failed to obtain a Certificate of Authority for All Florida, as required by Subsection 489.119(2), Florida Statutes. On or about August 23, 2004, Mr. Pang contracted with Mr. Roach, to remove and replace the hurricane-damaged roof of his hotel property located at 1620 West Vine Street, Kissimmee, Florida. The contract price for the aforementioned project was $40,000.00. Mr. Pang made an initial payment of $2,250.00 on August 22, 2004, and another payment of $20,000.00 on August 23, 2004. As part of the contract, All Florida was required to pull the building permits for the project, and Mr. Roach failed to do this. Mr. Roach commenced work on the project on or about September 7, 2004. On or about late September 2004, he ceased work on the project, and the project remained unfinished. Mr. Pang paid All Florida an additional $10,000.00 on September 16, 2004. On October 1, 2004, the City of Kissimmee issued a Notice of Violation against Mr. Pang for failure to have a building permit for the work that had been performed by Mr. Roach on the roof. Mr. Roach scheduled repairs on the project, but did not return to the project. Mr. Roach did not have any inspections performed on the roof. Later, another contractor hired by Mr. Pang finished the roofing project at a cost of an additional $32,975.00. Case No. 07-4377PL On or about September 15, 2004, Ms. Perez contracted with Mr. Roach to repair roof damage to her residence at 1502 Golden Poppy Court, Orlando, Florida. The contract price for the aforementioned project was $7,268.32, of which Mr. Roach was paid $3,634.16 on September 18, 2004. The contract entered into between Ms. Perez and Mr. Roach failed to inform the homeowner of the Construction Industry Recovery Fund. On or about October 27, 2004, the Orange County Building Department issued Mr. Roach a permit for the aforementioned project (Permit No. T04018050). Mr. Roach did not have any inspections performed on the roof. On September 25, 2004, Ms. Perez paid $3,614.16 to All Florida, which was the remaining amount of the contract. Another contractor was hired by Ms Perez to correct deficient aspects of Mr. Roach's work on the roof at a cost of $900.00.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered whose outcome is the following: That in Case No. 07-4376PL Respondent violated Subsections 489.129(1)(i), (j), (m) and (o), Florida Statutes; Dismiss Count II of the Administrative Complaint in Case No. 07-4376PL; In Case No. 07-4376PL, imposing an administrative fine of $1,000.00 for the violation of Subsection 489.129(1)(i), Florida Statutes; imposing an administrative fine of $5,000.00 for the violation of Subsection 489.129(1)(j), Florida Statutes; imposing an administrative fine of $2,500 for the violation of Subsection 489.129(1)(o), Florida Statutes; no administrative fine is recommended for the violation of 489.129(1)(m), Florida Statutes, because the violation is included in the violations of Subsections 489.129(1)(j) and (o), Florida Statutes; That in Case No. 07-4377PL, Respondent violated Subsections 489.129(1)(i) and (o), Florida Statutes; In Case No. 07-4377PL, imposing an administrative fine of $1,000 for the violation of Subsection 489.129(1)(i), Florida Statutes; imposing an administrative fine of $2,500 for the violation of Subsection 489.129(1)(o), Florida Statutes; Requiring Respondent to make Restitution to Mr. and Mrs. Pang in the amount of $25,000; Requiring Respondent to make Restitution to Ms. Perez in the amount of $900; and Revoking Respondent's contractor license. DONE AND ENTERED this 31st day of March, 2008, in Tallahassee, Leon County, Florida. S SUSAN B. HARRELL Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 31st day of March, 2008.
The Issue The issues that were presented for disposition in the above-styled cases were whether Respondent committed certain alleged violations of Chapter 489, F.S. and if so what discipline is appropriate. As stated below, the parties stipulated to the violations, leaving only the issue of discipline to be resolved.
Findings Of Fact Gordon Lee Cederberg is, and has been at all times material hereto, a licensed registered roofing contractor, having been issued license number RC 0051346, by the State of Florida. At all times material Respondent was the licensed qualifier for Allied American Roofing Company and was responsible in such capacity for supervising its contracting activities. Allied American Roofing Company was dissolved on November 4, 1988. Stipulated Violations By stipulation, Respondent has admitted the following allegations of the amended administrative complaint in DOAH #91-8319: 3. CASE NO. 0106373 COUNT THREE Respondent d/b/a Allied American Roofing contracted with Michael Roberts on April 4, 1988 to reroof a home located at 530 Mason Street, Apopka, Florida. The contract price was $942.80 and was paid in full. Respondent proceeded to complete the job without obtaining a permit and securing required inspections from the City of Apopka Building Department. By the reason of the foregoing allegations, Respondent has violated Section 489.129(1)(d), F.S., in that the Respondent willfully and deliberately disregarded and violated the applicable building code of a municipality, to wit, Apopka, Florida, by failing to obtain a permit and inspection is as required by that municipality. 4. CASE NO. 0107766 COUNT FOUR Respondent's license was under suspension by the Florida Construction Industry Licensing Board between August 10, 1988, and March 3, 1989. Respondent d/b/a Allied American Roofing contracted with Nancy Wiegner on September 22, 1988, to reroof a home located at 15 Kentucky Street, St. Cloud, Florida. The contract price was $1,600.00 and it was paid in full. Respondent commenced work under the contract but failed to obtain a permit prior to commencing such work from the City of St. Cloud, Florida, and the municipality issued a stop order on the job. Respondent further engaged in contracting in a municipality where he had not registered. By reason of the foregoing allegation, Respondent has violated Section 489.129(1)(j), F.S., in that he failed in a material respect to comply with the provisions of Section 489.117(2), F.S., in that he engaged in contracting in a municipality, to wit, St. Cloud, Florida, where he had failed to comply with the local licensing requirements for the type of work covered by his registration. COUNT FIVE By reason of the foregoing allegations, Respondent has violated Section 489.129(1)(d), F.S., in that Respondent willfully deliberately disregarded and violated the applicable building code of a municipality, to wit, St. Cloud, Florida by failing to secure a permit as required by that municipality. COUNT SIX By reason of the foregoing allegations, Respondent has violated Section 489.129(1)(j), F.S., by failing in a material respect to comply with the provisions of Section 489.127(1)(e), F.S., by engaging in contracting while his license was suspended. COUNT SEVEN By reason of the foregoing allegations, Respondent has violated 489.129(1)(m), F.S., by committing gross negligence, misconduct, and/or incompetency in the practice of contracting. 8. CASE NO. 0112740 COUNT EIGHT Respondent d/b/a Allied American Roofing contracted with Emma Smith on October 3, 1988 to reroof a home at 1911 Mullet Lake Park Road, Geneva, Seminole County, Florida. The contract price was $4,100.00 and it was paid in full. Respondent proceeded to complete the job without obtaining a permit and securing required inspections from the Seminole County Building Department. Respondent failed to properly construct a watertight roof which continued to leak and caused damage to the home. Respondent has failed to honor the five (5) year labor and twenty (20) year material warranty that was part of the said contract, although he was requested to do so. By reason of the foregoing allegations, Respondent has violated Section 489.129(1)(n), F.S., in that the Respondent proceeded on a job without obtaining an applicable local building department permit and inspections. COUNT NINE By reason of the foregoing allegations, Respondent has violated Section 489.129(1)(j), F.S., by failing in a material respect to comply with the provisions of Section 489.127(1)(e), F.S., by engaging in contracting while his license was suspended. COUNT TEN By reason of the aforesaid allegations, Respondent is guilty of violating Section 489.129(1)(m), F.S., by committing an act of gross negligence, incompetency and/or misconduct in the practice of contracting by failing to honor the written warranty described in paragraph twenty-six above. COUNT ELEVEN By reason of the aforesaid allegations, Respondent is guilty of violating Section 489.129(1)(m), F.S., by committing an act or acts of gross negligence, incompetency and/or misconduct in the practice of contracting. 12. CASE NO. 89-001674 COUNT TWELVE Respondent d/b/a Allied American Roofing Company contracted with Thelma Beck to reroof a home at 3910 Pineland Ridge Road, Orlando, Orange County, Florida on January 26, 1989 for a price of $2,270.00. Respondent accepted a $100.00 deposit for said job; the work was not begun and the $100.00 deposit was returned to Mrs. Beck. By reason of the foregoing allegations, Respondent has violated Section 489.129(1)(j), F.S., by failing in a material respect to comply with the provisions of Section 489.127(1)(e), F.S., by engaging in contracting while his license was suspended. COUNT THIRTEEN By reason of the aforesaid allegations, Respondent is guilty of violating Section 489.129(1)(m), F.S., by committing an act or acts of gross negligence, incompetency and/or misconduct in the practice of contracting. COUNT FOURTEEN Respondent d/b/a Allied American Roofing contracted with Morris Remmers to reroof a home at 8719 Butternut Boulevard, Orlando, Orange County, Florida, on or about February 23, 1989. The contract price was $2,870.00 and it was paid in full. Respondent proceeded to complete the job without obtaining a permit and securing required inspections from the Orange County Building Department. By reason of the foregoing allegation, Respondent is guilty of violating Section 489.129(1)(n), F.S., in that Respondent proceeded in a job without obtaining an applicable local building department permit and inspections. COUNT FIFTEEN By reason of the foregoing allegations, Respondent has violated Section 489.129(1)(j), F.S., by failing in a material respect to comply with the provisions of Section 489.127(1)(e), F.S., by engaging in contracting while his license was suspended. COUNT SIXTEEN By reason of the aforesaid allegations, Respondent is guilty of violating Section 489.129(1)(m), F.S., by committing an act or acts of gross negligence, incompetency and/or misconduct in the practice of contracting. 17. CASE NO. 89-008737 COUNT SEVENTEEN Respondent d/b/a Allied American Roofing contracted with Robert Speirs to reroof a dwelling at 2467 Fieldingwood Road, Maitland, Seminole County, Florida on or about October 14, 1988. The contract price was $3,600.00. Respondent proceeded to work the job but failed to obtain a permit and secure required inspections from the Seminole County Building Department. Respondent failed to properly construct a water tight roof which continued to leak. Respondent failed to honor the three (3) year labor and twenty (20) year material warranty that was part of the contract although he was requested to do so. By reason of the aforesaid allegations, Respondent has violated Section 489.129(1)(n), F.S., in that Respondent proceeded on a job without obtaining an applicable local building department permit and inspections. COUNT EIGHTEEN By reason of the foregoing allegations, Respondent has violated Section 489.129(1)(j), F.S., by failing in a material respect to comply with the provisions of Section 489.127(1)(e), F.S., by engaging in contracting while license was suspended. COUNT NINETEEN By reason of the aforesaid allegations, Respondent is guilty of violating Section 489.129(1)(m), F.S., by committing an act of gross negligence, incompetency and/or misconduct in the practice of contracting by failing to honor his written warranty described in paragraphs forty-seven above. COUNTY TWENTY By reason of the aforesaid allegations, Respondent is guilty of violating 489.129(1)(m), F.S., by committing an act or acts of gross negligence, incompetency and/or misconduct in the practice of contracting. 21. CASE NO. 109636 COUNT TWENTY-ONE Respondent d/b/a Allied American Roofing Company contracted with Daniel J. Doherty to reroof a home at 225 Dover Wood Road, Fern Park, Seminole County, Florida on October 2, 1988, for the contract price of $3,590.00 which was paid in full. Respondent proceeded to complete the job without obtaining a permit and securing required inspections from the Seminole County Building Department. Respondent failed to construct a watertight roof, which contributed to water damage to the interior of Mr. Doherty's home. Respondent failed to honor the five (5) year labor and twenty (20) year material warranty that was part of the contract, although he was requested to do so. By the reason of the foregoing allegations, Respondent has violated Section 489.129(1)(n), F.S., by proceeding on the job without obtaining a local building department permit and inspections. COUNT TWENTY-TWO By reason of the foregoing allegations, Respondent has violated Section 489.129(1)(j), F.S., by failing in a material respect to comply with the provisions of Section 489.127(1)(e), F.S. by engaging in contracting while his license was suspended. COUNT TWENTY-THREE By reason of the foregoing allegations, Respondent has violated 489.129(1)(m), F.S., by committing gross negligence, misconduct, and/or incompetency in the practice of contracting by failing to honor his warranty as described in paragraph fifty-six above. COUNT TWENTY-FOUR By reason of the aforesaid allegations, Respondent is guilty of violating Section 489.129(1)(m), F.S., by committing an act or acts of gross negligence, incompetency and/or misconduct in the practice of contracting. COUNT TWENTY-SEVEN Respondent d/b/a Allied American Roofing contracted with Gloria Viruet to reroof a home at 3010 (renumbered to 3007) Northwood Blvd., Orlando, Orange County, Florida on June 7, 1988. The contract price was $3,500.00. Respondent proceeded to complete the job without receiving a permit and securing required inspections from the Orange County Building Department. The Respondent failed to properly construct a watertight roof and a leak developed after construction. Respondent failed to honor the five (5) year labor and twenty (20) material warranty that was part of the said contract, although he has been requested to do so. By reason of the aforesaid allegations, Respondent has violated Section 489.129(1)(d), F.S., in that Respondent willfully and deliberately disregarded and violated the applicable building code of a County, to wit, Orange County, Florida by failing to obtain a permit and inspections as required by that County. COUNT TWENTY-EIGHT By reason of the aforesaid allegations, Respondent is guilty of violating Section 489.129(1)(m), F.S., by committing an act or acts of gross negligence, incompetency and/or misconduct in the practice of contracting, by failing to honor his written warranty described in paragraphs seventy. COUNTY TWENTY-NINE By reason of the aforesaid allegations, Respondent is guilty of violating Section 489.129(1)(m), F.S., by committing an act or acts of gross negligence, incompetency and/or misconduct in the practice of contracting. 28. CASE NO. 0108263 COUNT THIRTY Respondent d/b/a Allied American Roofing Company contracted with John E. Hultin to reroof a home located at 3610 Lakeview, Apopka, Florida on November 7, 1987. The contract price was $2,900.00 and it was paid in full. Respondent proceeded to complete the job without obtaining a permit and securing required inspections from the Seminole County Building Department. Respondent failed to properly install a roof covering, violating Section 103 of the Standard Building Code, 1985 Standard of Installation of Roofing Coverings adopted by Seminole County and Seminole County Ordinance Section 40.51. The contract provided for a five (5) year labor warranty and a twenty (20) year material warranty. Respondent made several attempts to correct defects but has not fulfilled his warranty as the roof continued to leak. By reason of the aforesaid allegations, Respondent has violated Section 489.129(1)(d), F.S., in that the Respondent willfully and deliberately disregarded and violated the applicable building code of a county, to wit, Seminole County, Florida by failing to obtain a permit and inspections as required by that county. COUNT THIRTY-ONE By reason of the foregoing allegations, Respondent has violated Section 489.129(1)(d), F.S., in that the Respondent willfully and deliberately disregarded and violated the applicable building code of a county, to wit, Seminole County, Florida by installing the above described roof in a grossly negligent manner and in a manner which violated Section 103 of the Standard Building Code, 1985 Standard of Installation of Roof Covering, adopted by Seminole County and Seminole Ordinances Section 40.51. COUNT THIRTY-TWO By reason of the aforesaid allegations, Respondent is guilty of violating Section 489.129(1)(m), F.S., by committing an act or acts of gross negligence, incompetency and/or misconduct in the practices of contracting by failing to honor his written warranty described above. COUNT THIRTY-THREE By reason of the aforesaid allegations, Respondent is guilty of violating Section 489.129(1)(m), F.S., by committing an act or acts of gross negligence, incompetency and/or misconduct in the practice of contracting. FACTS RELATED TO RESPONDENT'S PROPOSED MITIGATION Respondent has been engaged in the practice of roofing contracting for over twenty years. Prior to moving to Florida in 1983 his company worked in Michigan, Ohio and Indiana on large commercial jobs. In 1983 he was employed by the Disney company to do commercial roofing work. After licensure in Florida, Cederberg continued with large public works and commercial jobs in Florida. Sometime around 1988, after a disastrous reversal of fortune, the company filed for bankruptcy. Although he was utterly unfamiliar with the practice of residential roof contracting, particularly the demanding supervision involved, Gordon Cederberg began doing residential work. Around this same time Cederberg's wife left him and he was given custody of three children, ages three, six, and nine. He was emotionally distraught and obtained counseling and financial and other support from his church group. Cederberg's roofing contractor's license was suspended by the Construction Industry Licensing Board from August 1, 1988 to March 1, 1989, during which time he continued to work, due to financial pressures. Warranty work was not done due to his financial and emotional straits. According to Cederberg and his witnesses, he is in the process now of turning his life around. He operates on a smaller scale and is able to handle the work. He has one employee and has been able to avoid new complaints. He is still financially unable to provide restitution to the customers previously harmed.
Recommendation Based on the foregoing it is hereby, RECOMMENDED: that the parties' stipulation with regard to dismissals and admissions described above be accepted by the Board and that the following penalty be imposed: a) 1000.00 fine; one year suspension, with this penalty suspended during, and removed upon successful completion of, probation with an appropriate timetable for restitution and the requirement that appropriate continuing education courses are completed; and payment of costs of investigation and prosecution. DONE and ENTERED this 31st day of December, 1992, at Tallahassee, Florida. MARY CLARK Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 31st day of December, 1992. COPIES FURNISHED: Jack McRay, General Counsel Department of Professional Regulation 1940 North Monroe Street Tallahassee, FL 32399-0792 Daniel O'Brien, Executive Director Construction Industry Licensing Board P.O. Box 2 Jacksonville, FL 32202 William S. Cummins, Esquire Department of Professional Regulation 1940 North Monroe Street Tallahassee, FL 32399-0792 Jack Snow, Esquire 407 Wekiva Spings Road, Suite 229 Longwood, FL 32779
The Issue The issues to be resolved in this case are those promoted by the second amended administrative complaint brought by the State of Florida, Department of Professional Regulation against the Respondent, David W. Crosby. Briefly, the basic allegations are that the Respondent granted to James Crosby, d/b/a U.S. Seamless Roof Systems, the unlimited opportunity to obtain building permits under the Respondent's contracting license. This arrangement, it is alleged, was in the face of a circumstance in which James Crosby was not registered, certified, or otherwise licensed by the Construction Industry Licensing Board, nor had the Respondent qualified U.S. Seamless Roof Systems with the Construction Industry Licensing Board. It is further alleged that between August 1982 and in or about 1985 James Crosby operated a roofing contracting business in St. Johns County, Florida, and in St. Augustine, Florida, and utilized the Respondent's authorization to obtain certain building permits and that James Crosby then performed roofing work authorized by those permits. By reason of this arrangement Respondent is said to have violated Sections 489.119 and 489.129(1)(e) (f) (g) (j) and (m), Florida Statutes. There are additional allegations of similar nature pertaining to work in Brooksville and Inverness, Florida.
Findings Of Fact Facts found based upon responses to requests for admissions propounded from Petitioner to the Respondent (see Petitioner's Exhibit 1 admitted into evidence) Respondent's name is David W. Crosby. Respondent is a certified roofing contractor in the State of Florida having been issued license number CC CO 15442. At all times material to the pending Administrative Complaint, Respondent was a certified roofing contractor in the State of Florida having been issued license number CC CO 15442. Respondent's license number CC CO 145442 is active for the period expiring June 30, 1987. In or about August 1982, Respondent issued an unlimited authorization, addressed "To whom It May Concern," which authorized all building departments to issue roofing permits to Respondent's brother, James Crosby. Said James Crosby was operating a roofing business in the period 1982 to 1985, in and about the St. Johns County and St. Augustine area. On or about January 13, 1983, said James Crosby, d/b/a U.S. Seamless Roofing Systems obtained permit number 12102 from the City of St. Augustine. Said permit, number 12102, was obtained to repair a roof for Zorayda Castle of 83 King Street, St. Augustine, Florida. On or about February 3, 1983, said James Crosby, d/b/a U.S. Seamless Roofing Systems, obtained permit number 12122 from the City of St. Augustine. Said permit, number 12122, was obtained to reroof the residence of Zorayda Castle of 83 Ring Street, St. Augustine, Florida. On or about February 24, 1983, said James Crosby, d/b/a U.S. Seamless Roofing Systems, obtained permit number 12158 from the City of St. Augustine. Said permit, number 12158, was obtained to reroof the residence of Lillian Perpall of 67 Abbott Street, St. Augustine, Florida. On or about May 17, 1983, said James Crosby, d/b/a U.S. Seamless Roofing Systems, obtained permit number 12288 from the City of St. Augustine. Said permit, number 12288, was obtained to reroof the residence of Emily M. Alexander of 20 Cuna Street, St. Augustine, Florida. On or about May 2, 1983, said James Crosby, d/b/a U.S. Seamless Roofing Systems, contracted with Lawrence Golden to repair the roof at Golden's residence at 17 Bay View Drive, St. Augustine, Florida, for a contract price of $985. On or about March 28, 1984, said James Crosby, d/b/a U.S. Seamless Roofing Systems, used contractors license number CC CO 15442 to obtain permit number 3781-81 from St. Johns County Florida. Said permit, number 3781-81, was obtained to reroof the residence of Burton Chase of St. Johns County, Florida. On or about March 28, 1984, said James Crosby, d/b/a U.S. Seamless Roofing Systems, used contractors license number CC CO 15442 to obtain permit number 3780-81 from St. Johns County, Florida. Said permit, number 3780-81, was obtained to reroof the residence of Fred Jensen of St. Johns County, Florida. On or about May 7, 1984, said James Crosby, d/b/a U.S. Seamless Roofing Systems, contracted with Ceal Butler to repair Butler's roof on his residence at Rt. 3, Box 56W3, St. Augustine, Florida, for the contract price of $1,335. Said contract referenced in number 20 above, was executed on a printed form bearing contractors license number CC CO 15442. At no time relevant hereto did Respondent qualify the roofing business, American Roof and Waterproofing Company and/or American Roofing and Waterproofing Company. Facts found based upon testimony at final hearing and exhibits admitted at final hearing James Crosby is also known as James A. Crosby, Jr., and Jim Crosby. On May 17, 1982, James A. Crosby, Jr., who held registered roofing contracting license number RC 0029375, voluntarily relinquished that license in Department of Professional Regulation, Construction Industry Licensing Board v. James A. Crosby, Jr., DPR Case No. 006237. On June 30, 1987, the Construction Industry Licensing Board, in accordance with that voluntary relinquishment, entered a final order approving and accepting the relinquishment. See Petitioner's composite Exhibit 3. James Crosby, in those instances described in the fact finding related to roofing contracting activities, was unlicensed and therefore not authorized to practice contracting, to include roofing contracting. See Petitioner's Exhibit 4 admitted into evidence, a February 7, 1986, notice to cease and desist in the case of State of Florida, Department of Professional Regulation vs. James Crosby, DPR Case No. 62490, in which it is indicated that James Crosby does not hold the necessary license to do roofing work or other forms of contracting contemplated by Chapter 489, Florida Statutes. Petitioner's Exhibit 5 is a copy of the general authorization which Respondent directed "To Whom It May Concern" in August 1982 authorizing James Crosby ". . . to pull permits for all roof work done by U.S. Seamless Roof Systems, St. Augustine, Florida." A copy of Respondent's certified roofing contractors license was attached to this authorization. This authorization has never been withdrawn and still remains on file with the City of St. Augustine, Florida, Building Department. At all relevant times related to the second amended administrative complaint, the City of St. Augustine, Florida, by ordinance, had adopted the Southern Building Code, which required building permits to be issued by the City before James Crosby or the companies under whose name he was doing business could undertake the various projects that are contemplated by the second amended administrative complaint. In January 1983, James Crosby entered into a contract with Wallace Mussallem for the roof repair in a tourist attraction in downtown St. Augustine, Florida, known as Zorayda Castle. Price of the repairs was approximately $6500. Petitioner's composite Exhibit 6 admitted into evidence pertains to various building permit applications and for certificate of appropriateness which James Crosby filed related to the Mussallem job. Crosby was operating under the name U.S. Seamless Roofing Co. as depicted in the aforementioned composite exhibit. Crosby completed the job and was paid the full amount of the contract. Crosby warranted his repair work for a period of ten years. During the initial two years, the roof did not leak; however, in 1986 a number of leaks occurred in the roof. Mussallem was unable to locate James Crosby to fix the roof and Mussallem had another roofer effect repairs and spent $3000 to have one section of the roof repaired. As of the time of the hearing, when Mussallem gave his testimony, part of the roof was still leaking and needed to be fixed. Respondent was never involved in the transaction between Mussallem and James Crosby, beyond giving permission to James Crosby to pull building permits from the City of St. Augustine, Florida. On March 4, 1984, Mr. and Mrs. William Blanchard entered into a contract with James Crosby, d/b/a American Roof and Waterproofing Company. James Crosby's associate, Basil R. Boone, was the person who estimated the job; however, the contract was with James Crosby. A copy of that contract can be found as Petitioner's Exhibit 14 admitted into evidence. It calls for the repair of the roof on the Blanchards' residence in St. Augustine, Florida. On April 5, 1985, James Crosby applied for a building permit from the City of St. Augustine to do the roofing work at the Blanchard home, and on April 30, 1985, that building permit was issued. Petitioner's composite Exhibit 8 is a copy of the application for permit and the permit. The price of the contract was $1575. James Crosby was paid for the roofing work. In the course of this transaction, William Blanchard had no occasion to deal with the Respondent. On May 7, 1984, James Crosby, d/b/a U.S. Seamless Roof Systems contracted with Ceal Butler of St. Johns County, Florida, to do roof repair work on a mobile home belonging to Mr. Butler. See Petitioner's Exhibit 15 admitted into evidence. The contract price was $1335 and Crosby guaranteed the work for ten years. May l8, 1984, James Crosby, as referred to in the check written to the Butlers as "Jim Crosby," was paid the contract amount. The contract form that was utilized in the Butler case referred to the Florida certified contracting number which pertains to the Respondent. Notwithstanding this reference, Respondent did not involve himself with this project. The Butlers immediately began to experience problems with the roofing work done by James Crosby. There were leaks in the roof repair work. The Butlers made numerous requests to have James Crosby honor the warranty, but the repairs were not made. Eventually, another roofer other than James Crosby had to make the repairs on the roof. Lillian Perpall owned a home in St. Augustine, Florida, and contracted with James Crosby to do roofing repair work at her residence. A copy of the contract may be found as Petitioner's Exhibit 17 admitted into evidence. James Crosby was doing business in this instance as U.S. Seamless Roof Systems. The contract price was $4875 and the project carried a ten-year guarantee. On February 24, 1983, in furtherance of the conduct of the project, James Crosby applied for a building permit which was granted that same day. A copy of the application and building permit may be found as Petitioner's composite Exhibit James Crosby was paid the full amount of the contract price for concluding the roofing repair work. Within a year after the work had been done, there was a leak in the roof and James Crosby came and put another coat of material on the roof in response to the complaint of Ms. Perpall. In the last eight or ten months, the back porch area where roof repairs had been made began to leak. Ms. Perpall has tried to contact James Crosby about that problem and has been unable to. In particular, she tried to make contact at the telephone number listed on the contract document that was signed. On the evidence presented, it is found that the Respondent did not participate in the roofing repair work at the Perpall residence, On October 14, 1982, James Crosby, d/b/a U.S. Seamless Roof Systems contracted with Edward Carriere to perform room repair work on Carriere's residence in St. Augustine, Florida. The contract amount was $5100 and the contract included a ten-year guarantee. A copy of the contract may be found as Petitioner's Exhibit 18 admitted into evidence. This contract format bears Respondent's Florida certified contractor's number. In furtherance of this work, James Crosby applied for a building permit from the City of St. Augustine on September 28, 1982, and that permit was issued that same day. A copy of the application and permit may be found as Petitioner's composite Exhibit 11 admitted into evidence. A second building permit related to this work was issued on October 27, 1982, from the City of St. Augustine as acknowledged by James Crosby and is found as part of the Petitioner's composite Exhibit 11. From the beginning, following the work, Carriere has experienced problems with the repair work. These problems are leaks in the roof. They have caused damage in the kitchen and living room area of the Carriere home. James Crosby responded to complaints about the room leaking, but did not fix the problem. The roof leaked from 1983 to 1985. By 1985, Carriere was unable to locate James Crosby to fix the leaking roof. Being unsuccessful in locating James Crosby, Carriere hired another roofer to fix the problem in January 1986. This cost an additional amount of approximately $5800. Carriere never dealt with the Respondent in the roof repair project at his home. On May 2, 1983, Lawrence G. Golden contracted with a representative of U.S. Seamless Roof Systems, the company of James Crosby, to have roof repair work done at the Golden residence in St. Augustine, Florida. A copy of the contract entered into with the company be found as Petitioner's Exhibit 19 admitted into evidence. The contract amount was $985 and the work carried a ten-year guarantee. Lawrence Golden paid the man $985 called for by the contract. Mr. Golden had problems with the roof repair work with the advent of heavy rains, in that the roof leaked. After numerous attempts to contact the company, James Crosby came to examine the nature of the complaint. James Crosby did not fix the problems with the leaking roof or cause them to be fixed until Golden had made a complaint to the State of Florida, Department of Professional Regulation. James Crosby did not obtain a building permit for the roof repair work, nor was a building permit obtained by anyone other than James Crosby. Golden did not deal with the Respondent in the transaction involving the roof repair. On July 15, 1982, Wilbur Lane contracted with James Crosby d/b/a U.S. Seamless Roof Systems to perform roof repair work on Lane's residence in St. Johns County, Florida. The roof repair contract carried the certified roofing contractor license number associated with the Respondent. The amount of the contract price was $1300 and the work carried a ten-year guarantee. James Crosby completed the construction work and received the full payment. A copy of the contract may be found as Petitioner's Exhibit 20 admitted into evidence. Although James Crosby was paid the amount contemplated by the contract, the roof repair work was not successful. After the project was undertaken, Lane experienced leaks inside of his home and made numerous attempts to try to contact James Crosby to take care of the problem. Crosby did attempt to fix the leaks, but failed in the attempt. Eventually Mr. Lane was unable to contact Crosby to continue the effort at rectifying the problem and Mr. Lane had to complete his own repair work on the roof to stop the leaks. Lane never had occasion to deal with the Respondent in this project. 35, The Department of Professional Regulation investigator Augostino A. Lucente investigated the complaint that had been filed by Lawrence Golden and spoke with the Respondent. Respondent indicated that he did not know anything about Mr. Golden or his problem or the fact that roofing repair work had been undertaken by U.S. Seamless Roof Systems. Respondent did indicate to Lucente that James Crosby was using Respondent's certified roofing contractor's license to obtain building permits. Respondent stated that he was trying to do his brother a favor by setting up a company for him in the St. Augustine area. In actuality, James Crosby may not be the brother of Respondent and may in fact be Respondent's cousin. Respondent told Lucente that he had issued the authorization letter, Petitioner's Exhibit 5, and that he had intended to open up a business in the St. Augustine area and to put James Crosby in charge. After about six weeks, Respondent said that he determined that he did not want to do anything with the St. Augustine situation and left everything as it was. This decision came about in September 1982. Respondent also denied any knowledge of the Carriere contract. On October 22, 1986, Petitioner took action against the Respondent in DPR Case Nos. 59109 and 59115 by the entry of a final order disciplining the license which is at issue in this proceeding. A copy of that final order and the underlying administrative complaint may be found as Petitioner's Exhibit 2 admitted into evidence.
The Issue Whether respondent's license should be revoked, suspended or restricted, or whether an administrative fine should be levied against him, or whether he should be reprimanded for the reasons alleged in the administrative complaint?
Findings Of Fact James M. McCurley is a registered roofing contractor, holding Florida License No. RC 0042226. Licensed in Florida since 1982, Mr. McCurley has been in the roofing business for 25 years all told. Although he holds a state license, he is registered to do roof projects in Broward County only, 82-3201-R-R. Thomas v. Shoop, a real estate broker, manages the Mayani Biscayne Condominiums in Miami at 5995 Biscayne Boulevard, (Mayan) and the Camelot South Apartments on 17th Street in Fort Lauderdale (Camelot), which consist of three buildings (A, B and C). Above Camelot B's roof, which "is not properly set up for drainage at all," (T. 183), loomed a leaking water tower, which has only recently been fixed. In the summer of 1983, all four buildings' roofs leaked; and the roofer who had given long-term guarantees on Camelot's roofs had gone bankrupt. An associate of Mr. Shoop knew one John Emig, who was a salesman for Mr. McCurley. Messrs. Shoop and Emig visited the roofs and discussed the problems. In order to "mak[e] sure that they got a reputable roofer. . . [Mr. Shoop] did great deal of research with a list . . . [of] people that [Mr. McCurley] had done work for and were satisfied." (T. 16). Through Mr. Emig, Mr. McCurley offered to replace the 8,000-square-foot roof on Camelot B for $25,000. Further conversations eventuated instead in an agreement, reduced to a separate writing with respect to each Camelot building, Petitioner's Exhibit No. 2, that called for Mr. McCurley to repair, clean and paint the root and soffits of the three Camelot buildings. The contract for Camelot A characterized the work both as restoration and as preventive maintenance. Repairs were to be effected "as needed." The contracts recited the roofing contractor's "opinion [that] the following maintenance work should put this roof and mansard in the best possible condition, and that it reasonably can be expected to have up to a five year service life." Petitioner's Exhibit No. 2. The agreements specified installation of a total of 35 vapor pressure release vents and stated that Mr. McCurley was to: Check and reseal where needed all pitch pockets, using 10-year rubberized elastomers. . . . Remove all blistering coating from the roof decks and at all such spots install a repair patch. Repair any bulges or blisters and treat all cracks as needed using elastomeric and waterproofing membrane. Petitioner's Exhibit No. 2 The contracts were typed on printed forms. When Mr. Emig and Mr. Shoop signed the roofing contracts on August 24, 1983, Mr. McCurley was not present. At the time the agreements were signed, "3 was substituted for "1" in the phrase, "The above work . . . carries with it our 1 year Pree Service Guarantee should any leak occur . . ." Petitioner's Exhibit No. 2. Unchanged was a typewritten paragraph on each contract stating: In this particular situation our warranty shall be a one year unconditional one, which is standard procedure in the industry. Petitioner's Exhibit No. 2. Although Mr. Shoop dealt primarily with Mr. Emig in negotiating the contract, Mr. Shoop and Mr. McCurley went up on a roof together at one point before the contracts were signed. On September 20, 1983, an addendum to the contracts, calling for work on the buildings other than roofing, was executed. The contract price for the roofing work was less than 40 cents per square foot. The roofs in the Camelot complex were built-up tar and gravel, coated with a cementitious fill. Ordinarily insulation lies underneath a built-up roof of this kind. The vapor pressure release vents were proposed and contracted for on the assumption that insulation underlay the tar, insulation which permitted lateral movement of water and water vapor trapped by the tar and cementitious fill. Pressure attendant on vaporization of water trapped underneath the tar and fill is the apparent cause of the cracking and blistering that led to the leaks. In installing the first vapor pressure release vent, Mr. McCurley discovered that the tar had been placed directly on the roof sheathing. He explained to Mr. Shoop that there was no good reason to go forward with installation of the other vents because the impermeability of tar and fill precluded lateral movement of moisture and, therefore, its escape in any significant quantity through the vents. Mr. Shoop insisted, however, that all the vents called for by the contract go in, and Mr. McCurley complied. The vents stood useless (T. 99) but firmly affixed to the roof as recently as five or six months before the hearing. (T. 94) Thereafter, many were dislodged by the contraction and expansion of the roof, aggravating the leakage problems. To meet the contract requirement of an "elastomeric and waterproofing membrane," Mr. McCurley employed a coating he had never used before, but one which was advertised by a company listed on the New York Stock Exchange, Rohm & Haas, as capable of withstanding ponding water. At the time he entered into the contract, Mr. McCurley did not know that this claim was false. In the fall of 1983, he applied this coating not only to places where cementitious fill had bulged, blistered, or cracked, but also to unblemished portions of the Camelot roofs, covering them entirely twice, before applying a final coat of high gloss white paint. Before he was paid, Mr. McCurley had done everything called for by the contract. On May 30, 1984, however, Mr. Shoop told Mr. Emig that old leaks had reappeared and that new leaks had sprung open. Mr. Shoop also telephoned and left word for Mr. McCurley to this effect on June 15, 18, and 19. On July 5, 1984, Mr. Shoop wrote Mr. McCurley a letter, Petitioner's Exhibit No. 4, in response to which Mr. McCurley applied another acrylic waterproofing compound and plastic cement. When he finished, "it looked from a laym[a]n's point of view that it was a good job." (T. 31). In November of 1984, the B building roof still looked good but it leaked. In response to complaints, Mr. McCurley returned several times to repair blistered areas with acrylic waterproofing and to apply plastic cement. Typically these repairs prevented leaks the next hard rain but not the one following. Camelot B needs reroofing, which involves taking out the existing roof and building up a new one with tar and gravel, the approach Mr. McCurley originally recommended.) Mr. Hilson, who has spent approximately 30 years in the roofing business, testified that the coatings that Mr. McCurley used were permeable, and inappropriate for use on horizontal surfaces on that account. Specifically, after inspecting Camelot B's roof, Mr. Hilson testified: It has continued to leak from what we was shown and told. I made a note here that it takes a zero perm rating to hold back water, and these coatings apparently have no such perm rating. These coating[s] are breathable. And because they are breathable they allow water to go through them and become trapped, underneath the cementious fill. The only type of coating that we know of that these type of coatings were normally used on vertical surfaces where water can't stand on them, showing these photographs here the water where it does pond on this coating, it deteriorates the coating. It actually eats it. The fungus attacks it. Basically that's it, except where the bottom statement that I made is that these type of coatings cannot hold back water and should not be used to try to hold back water. And anybody with any roofing knowledge should understand or know they can't hold back water. (T. 71, 72). Respondent McCurley testified that he did not know what numerical "perm rating" the material he used had been given, but that he relied on the manufacturer's representations that it would withstand ponding, when he told Mr. Shoop that he thought it would work. He did not dispute that the coating had failed. Mr. Hilson was of the opinion that not even an impermeable coating would have worked, because it would not only have prevented water's penetrating, but would also have trapped moisture already in the cementitious fill. In his view, when the trapped water vaporized, it "would have blown the system off". Petitioner's Exhibit No. 7. Mr. McCurley also contracted with Mr. Shoop to work on the roof of the Mayani apartment building in Miami. For $1200.00, he undertook, among other things, to check and reseal as needed "litch [sic] pans," repair three leaks in the deck, cover "all bald spots with gravel," and install Gravel Lok over the entire gravel roof area. The leak repairs were unconditionally guaranteed for a year. After work was completed, Mr. McCurley received full payment on September 6, 1983. Before he began work, Mr. McCurley telephoned some government office in Dade County and asked whether a permit was "required to put a cement coating over a gravel built-up roof," (T. 9) and was told that none was required. After the present proceedings were instituted he called again and got the same answer. As a practical matter, persons not licensed as roofers, including "the average painter, goes out and does a waterproof of a roof." (T. 103) Repair of the three leaks probably cost Mr. McCurley $30.00. (T. 99) When he began on the Mayani roof Mr. McCurley was aware that Dade County's code is similar to Broward County's, which incorporates the South Florida Building Code, and knew specifically that Dade County required a permit for roofing repairs "after Three Hundred dollars," (T. 98) a permit he was ineligible to obtain. Dade County does indeed require permits for the "application, construction or repair of any roof covering. . .exceeding three hundred dollars (S300.00) in value of labor and materials, . . . or for work exceeding 2 roofing squares in extent," Petitioner's Exhibit No. 6, and the requirement applied to the job Mr. McCurley did at Mayani. (T. 66). When Mr. Shoop reported the Camelot leaks to Mr. Emig on May 30, 1984, he also reported leaks at Mayani that had appeared after heavy rains in Miami. Eventually respondent repaired the Mayani roof, but problems developed again in November of 1984.
The Issue Whether Respondent, the County of Volusia, Florida, (the County or Respondent) 1 illegally discriminated against Pamela Allen (Petitioner) by refusing to issue a building permit for re-shingling Petitioner’s roof because of her race.
Findings Of Fact Petitioner is a Black female who resides at 4204 Quail Nest Lane, New Smyrna Beach, Florida (the Property), in Volusia County. The home was built in 1994 before the Florida Building Code (the Code) was first implemented. Petitioner purchased the home through a confidential auction in the Fall of 2019. At the time of purchase, Petitioner was living in Georgia and was aware that the Property was uninhabitable and in foreclosure. In order to purchase the Property at auction, Petitioner took out a loan from a private investment group. The loan’s conditions forbade Petitioner from moving into the Property until repairs to the house were complete and Petitioner obtained a conventional mortgage. In an effort to obtain a higher appraisal rate, Petitioner planned to do a shingle-over-shingle overlay of the Property’s roof. Hughlester Philip, a friend of Petitioner’s who lived in Georgia, agreed to help Petitioner with the shingle-over-shingle overlay. In early December 2019, Mr. Philip, with the help of his brother and a friend, began to place an overlay of shingles by placing shingle over shingle on the Property’s roof without a permit or inspection. Neither Hughlester Philip, his brother, nor his friend were Florida- licensed contractors, and neither of them had any ownership interest in the Property. A permit from the County was required prior to starting work on the roof. A stop work order (Stop Work Order) was issued by the County and posted in the yard of the Property for the re-roofing project on December 13, 2019, due to Petitioner’s failure to pull a permit prior to starting the shingle- over-shingle overlay. Neither Mr. Philip nor Petitioner were on the Property when Respondent posted the Stop Work Order. Petitioner does not know who placed the Stop Work Order in her yard. At the final hearing, Petitioner admitted that she should have obtained a permit prior to the start of the re-roofing project and that she was at fault for failing to obtain a permit before the work began. On December 13, 2019, after the Stop Work Order was issued, Petitioner went to the County to apply for a permit. Mr. Philip helped Petitioner complete the permit application. Prior to this permit application, Mr. Philip had never personally pulled a permit for a roof overlay in Florida or anywhere else. In fact, Mr. Philip had never applied for any type of permit in Florida. When Petitioner arrived to submit her application for a permit to the County, there were several women working in the office. This was the first time that Petitioner had any contact with anybody from the County. Petitioner was not asked about her race or gender as part of the permit application process. In her permit application, Petitioner specified that she sought a permit to re-roof her sloped shingle roof and that she did not intend to remove the existing roof. In other words, she intended to place shingle over shingle without removing the existing roof. As part of the County’s permitting process, once a permit application is filed, a plan review is performed. If any deficiencies are noted, the County automatically issues a request for additional information (Additional Information Request). County Plans Examiner, Harold Allen, was charged with reviewing Petitioner’s permit application. On December 19, 2019, the County issued Petitioner an Additional Information Request. The request, prepared by Mr. Allen, stated that Tom Legler would be performing an inspection of the project, and, quoting language found in section 706.3(5) of the Code, further stated: New roof coverings shall not be installed without first removing all existing layers of the roof coverings down to the roof deck where any of the following conditions occur: Where the existing roof is to be used for attachment for a new roof system and compliance with the securement provisions of Section 1504.1 of the Florida Building Code, Building cannot be met. Mr. Harold Allen had never met Petitioner, nor had he spoken to her on the phone prior to sending the Additional Information Request on December 19, 2019. The Property was built prior to implementation of the Code in 1994, and the County did not have any record of an inspection being done since then. The County’s main concern was Petitioner’s intent to install a shingle roof over an existing shingle roof without a County inspector being able to first verify that the underlying sheathing complied with current code. The Code is implemented by the State of Florida, not the County. The County has no authority to delete or change the Code. After receiving the Additional Information Request, Petitioner made several calls to the County. During these calls, Petitioner spoke to Mr. Allen and Chief Building Inspector Tom Legler. On one of the calls, Petitioner alleges that she heard Mr. Legler state to someone else that “those people are calling again about their roof.” Paragraph 29 of Petitioner’s Proposed Recommended Order suggests that Mr. Legler’s reference to “those people” was a racial epithet. That suggestion, however, is not supported by the evidence. At the final hearing, Petitioner testified that she did not know who Mr. Legler was speaking to and does not know why Mr. Legler referred to her as “those people.” The evidence was otherwise insufficient to show whether Mr. Legler was even aware of Petitioner’s race at the time the comment was made. During the same time period that Petitioner was calling the County in December 2019, Petitioner hired George Miles, a professional engineer, because she needed an engineer to certify that the work performed on the Property’s roof complied with the Code. Depending on the circumstances, the County has the authority to accept engineer certification letters on code compliance in lieu of conducting its own inspection. After inspecting the roof and noting that some areas needed repair, Mr. Miles prepared a letter certifying that the work that had been completed on the roof complied with the Code and that he planned to submit his letter to the County to consider in lieu of a County inspection. However, as there was a disagreement with the County as to whether the roof needed to be removed to comply with the Code, the County indicated that it would not accept the letter in lieu of inspection and Mr. Miles never submitted the letter. In attempting to resolve the disagreement over Petitioner’s permit application, Mr. Miles mainly spoke to Kerry Leuzinger, who is the Chief Building Official and Division Director of the County’s Building and Code Administration. Early on, in December of 2019, before the County sent Petitioner any letter regarding potential fines, Mr. Philip contacted roofing contractor David Schaare to ask how much it would cost Petitioner to reroof her Property. Mr. Philip advised Mr. Schaare of the Stop Work Order and need for a permit. Thereafter, Mr. Schaare evaluated Petitioner’s Property and estimated how much it would cost to reroof it. Mr. Schaare determined that the overlay was done incorrectly. According to Mr. Schaare, the roof work did not comply with the Code and Mr. Schaare advised Mr. Philip that “[e]verything would have to come off to be done correctly… .” At the final hearing, Mr. Schaare testified that he had never seen the County approve a shingle overlay for a roof in the same condition as Petitioner’s. Petitioner was on the phone during several calls between Mr. Miles and Mr. Leuzinger, but Petitioner did not speak. Mr. Leuzinger does not recall ever speaking with Petitioner on the phone and was not aware of Petitioner’s race at the time. Petitioner has never met Mr. Leuzinger face-to- face. In fact, Mr. Leuzinger was not aware of Petitioner’s race until he received notice of Petitioner’s Discrimination Complaint in January of 2021-- more than a year after Respondent issued the Stop Work Order and more than a year after Petitioner applied for a permit in December of 2019. Mr. Miles, Petitioner, and Mr. Leuzinger also discussed Petitioner’s permit application over email. On January 10, 2020, Mr. Miles emailed Mr. Leuzinger to advise of his interpretation of the Code and to ask if Respondent agreed with it. After several emails back and forth, and lack of consensus between them as to interpretation of the Code, Mr. Leuzinger advised Mr. Miles that Petitioner could appeal Respondent’s decision to the Volusia County Contractor Licensing & Construction Appeals Board (the Board) or request a binding interpretation from the Florida Department of Business and Professional Regulation (DBPR). On January 13, 2020, Respondent issued Petitioner a Notice of Violation regarding Petitioner’s failure to obtain required permits prior to starting the work on the Property’s roof. The Notice of Violation is a standard letter that Respondent sends to homeowners to notify them of a code violation and to notify them that Respondent could take further action if the homeowner fails to correct the violation. This was the only Notice of Violation that Petitioner received. Respondent did not issue Petitioner another Notice of Violation because Respondent was aware of Petitioner’s intent to appeal Respondent’s denial of a permit. On January 15, 2020, after speaking with Mo Modani, who works for DBPR, Mr. Miles emailed Mr. Leuzinger and advised that Mr. Modani’s opinion regarding the Code was consistent with the position advocated by Mr. Miles on behalf of Petitioner. Mr. Miles provided Mr. Modani’s name and phone number and asked Mr. Leuzinger to give him a call. Mr. Modani is a staff member who does not have authority over local jurisdictions with respect to enforcement of the Code. That same day, January 15, 2020, instead of calling Mr. Modani, Mr. Leuzinger responded with an email to Mr. Miles stating, “We have made our determination and it stands.” At some point, Petitioner decided to abandon efforts to obtain an overlay and instead hired Mr. Schaare to replace the roof. Although it is unclear from the record when the job was completed, once Mr. Schaare undertook the project, it took him approximately two days to replace the roof at a price of approximately $25,000. According to Mr. Schaare, the County inspector for the Property mentioned that he had made a bid on the Property when it was up for auction. Mr. Schaare could not remember the name of the inspector and he did not know if it was Kerry Leuzinger. Mr. Schaare related this information to Mr. Philip. Mr. Leuzinger was not the inspector for the Property and there is otherwise lack of sufficient evidence that would support a finding that “Kerry Leuzinger attempted to purchase the subject property while it was in Auction,” as alleged in the Discrimination Complaint. On January 30, 2020, Mr. Miles appealed the County’s decision to deny Petitioner’s permit for an overlay to the Board. The Board is composed of various professionals in the construction industry, none of whom are employed by Respondent. The role of the Board is to review cases to assess the reasonableness of the County’s decision. Petitioner’s appeal was held before the Board on March 4, 2020. Chief Plans Examiner Eric Gebo presented on Respondent’s behalf. Mr. Gebo never personally met Petitioner, never spoke with Petitioner, and did not know Petitioner’s race. Petitioner did not present to the Board, rather, Mr. Miles presented on Petitioner’s behalf. Mr. Leuzinger was not present. The discussion regarding Petitioner’s proposed roof-over lasted more than 30 minutes. The crux of the issue was whether the sheathing nailing on the roof could be verified as required under the applicable provisions of the Code. According to the County, because Petitioner’s home was built before the Code’s implementation and Respondent did not have evidence of a prior roof permit being pulled, the County could not verify that the underlying sheathing was ever inspected and could not verify that the sheathing complied with the Code without Petitioner first removing the existing layers of shingles. The position of the County on the issue was consistent with its decisions in other cases with similar facts. During the hearing, Mr. Miles stated that, “[w]hen it comes down to the simple truth of this is that it’s a difference of interpretation.” He also advised the Board that he “wanted to actually have [the State] make a recommendation on this … and they will not do it until [they] go through this process.” The Board members also discussed the need for clarification as to the Code. For example, while one Board member indicated that “the Code seems pretty clear,” another member asked Mr. Gebo for clarification because he believed that “[they] cover roofs all the time without tearing them off.” After further discussion, the Board, by unanimous vote, concluded that Respondent correctly denied Petitioner’s permit application. Even so, the Board encouraged Mr. Miles to seek a binding interpretation from the State because the wording in the Code “needs to be resolved.” On June 8, 2020, Mr. Miles filed a petition with DBPR on behalf of Petitioner requesting a binding interpretation of section 706.3 of the Code.2 Following a telephonic hearing held before the Building Officials Association of Florida, on July 7, 2020, a binding interpretation of the Code was entered agreeing with Mr. Miles’ interpretation that an overlay was permitted. The comment to the binding interpretation acknowledged that the wording of the section it interpreted “has created confusion.”
Conclusions For Petitioner: Ka'Juel Washington, Esquire The Washington Trial Group, PLLC Suite 500 37 North Orange Avenue Orlando, Florida 32801 For Respondent: Erin G. Jackson, Esquire Johnson Jackson PLLC Suite 2310 100 North Tampa Street Tampa, Florida 33602
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations enter a final order dismissing Petitioner's Discrimination Complaint and Petition for Relief consistent with the terms of this Recommended Order. DONE AND ENTERED this 17th day of September 2021, in Tallahassee, Leon County, Florida. S JAMES H. PETERSON, III Administrative Law Judge 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 17th day of September 2021. COPIES FURNISHED: Ka'Juel Washington, Esquire The Washington Trial Group, PLLC Suite 500 37 North Orange Avenue Orlando, Florida 32801 Tammy S. Barton, Agency Clerk Florida Commission on Human Relations 4075 Esplanade Way, Room 110 Tallahassee, Florida 32399-7020 Erin G. Jackson, Esquire Johnson Jackson PLLC Suite 2310 100 North Tampa Street Tampa, Florida 33602 Kerry Leuzinger, Director Volusia County Building and Code Administration 123 West Indiana Avenue Deland, Florida 32720 Stanley Gorsica, General Counsel Florida Commission on Human Relations 4075 Esplanade Way, Room 110 Tallahassee, Florida 32399-7020 Laura Mauldin Coleman, Esquire County of Volusia 123 West Indiana Avenue Deland, Florida 32720 Ashley Tinsley Gallagher, Esquire Johnson Jackson PLLC Suite 2310 100 North Tampa Street Tampa, Florida 33602
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.
Findings Of Fact The Respondent is a registered roofing contractor, having been issued license number RC 0020923. On may 27, 1982, the Respondent, doing business as T & T Roofing Company, contracted with Jessie Reid, 1021 Abeline Drive, Deltona, Florida, to replace an existing shingle roof for a total contract price of $2,406.20. At all times material hereto, the Respondent was registered with the Construction Industry Licensing Board as qualifying agency for A. L. Roofing Specialists. At no time has the Respondent qualified T & T Roofing Company. On August 26, 1982, when the Respondent completed work on Jessie Reid's roof, he was paid $2,406.20 which was the entire contract price for this job. The Respondent was to return to the job site to inspect the roof and correct minor remaining problems. However, when the Respondent would not return to the job, even after repeated calls, it was determined that there is a difference in shingle thickness at points on the roof, and the rain runs down over the gutters instead of into them. Further, the hip and ridge caps are of a different material than the major portion of the shingled roof; there are exposed nails; and the gutters are filled with roofing debris. The Respondent has not been responsive to communications and he has refused to make the necessary corrections to Jessie Reid's roof. The Respondent never obtained a permit for the reroofing work done for Jessie Reid at 1021 Abeline Drive, in Deltona. A permit is required to do reroofing work in Deltona, which is within the jurisdiction of Volusia County.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Registered Roofing Contractor's license number RC 0020923 held by the Respondent, John W. Thorn, be revoked. DONE AND ENTERED this 30th day of May 1984 in Tallahassee, Florida. WILLIAM B. THOMAS 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 30th day of May 1984. COPIES FURNISHED: Edward C. Hill, Jr., Esquire 130 North Monroe Street Tallahassee, Florida 32301 Mr. John W. Thorn Post Office Box 1897 Deland, Florida 32720
