Findings Of Fact At all times relevant hereto, Respondent was licensed as a roofing contractor by the Construction Industry Licensing Board, having been issued license number CC CO24406. Respondent contracted with Michael Cirulnick on or about June 21, 1986, to replace his flat tar and gravel roof. The contract was for $900 and provided a five year guarantee against leaks. The City of Sunrise required a permit for this job, having adopted by local ordinance sections 301 et seg. of the South Florida Building Code. Prior to contracting with Respondent, Cirulnick had obtained a bid from Code Three Roofing Company. He did not sign a contract with Code Three and did not know that Code Three had applied for a permit. Cirulnick did not tell Respondent that he already had a permit on the job. Respondent performed the job without obtaining a building permit or inspections. Approximately two weeks after the job was finished, at the first hard rain, the roof began to leak in new areas. After the job, leaks developed twenty-four feet from the valley of the adjoining sloped roof to the right and twelve feet to the left, corresponding to the kitchen sliding door and the dining room sliding door. Cirulnick called Respondent for 6 to 8 weeks before finally reaching him in response to the leaks, at which time Respondent promised to repair them. Respondent claimed that he was contacted approximately two weeks after the job was completed. He blamed the new leaks on the sloped shingle roof and refused to repair them under his guarantee. Cirulnick contacted the City of Sunrise after repeated unfulfilled promises from Respondent that he would attend to the problem. When Cirulnick learned that no permit or inspections had been obtained, he contacted the Department of Professional Regulation. In 1987, in response to Cirulnick's complaints, Respondent sent Walter Harris, who told Cirulnick he was with "American Roofing". He told Cirulnick that the problem was with the way the flat roof was tied into the sloped roof, and called the job "terrible." He made repairs to the tie-in where the flat tar and gravel roof connected to the sloped shingle roof, which repairs stopped the leaks over the living and dining room sliding doors, but not the leak by the kitchen doorway beneath the area where the valley of the sloped roof ties in with the flat roof. Respondent obtained a permit and final inspection based upon his affidavit filed with the City of Sunrise in December of 1987, 1-1/2 years after he completed the Cirulnick job. Eugene Gardner, Building Official for the City of Sunrise, had inspected the Cirulnick roof when the shingle roof had been installed. This was shortly before Cirulnick purchased the property. When Gardner was there, there was no black roof cement in the valley of the sloped shingle roof. Cirulnick examined the roof both before and after Respondent worked on the roof. The black substance over the shingles was put there by Respondent. The leaks which developed after Respondent finished the job related directly to the areas where the flat roof joins or ties into the sloped shingle roof. Leaks developed in both the kitchen and dining eating areas, by the sliding glass doors. These are situated where the flat and sloped roofs meet. The leaks continued from June of 1986 until Walter Harris was sent out to do repairs, approximately February of 1987. His repairs stopped these leaks but not the leak in the kitchen doorway, situated under the area where the valley in the sloped roof joins the corner of the flat roof. That leak still exists. Petitioner called Robert Hilson as its expert. Respondent called Kirk Keuter. Both experts examined the roof in May of 1988. Keuter found the work to be within professional standards and blamed the leaks on the shingle roof valley. He was unable to explain the cause of the leaks. He testified that "As near as I can ascertain" the base sheet of the flat roof was properly tucked under the existing old material on the sloped shingle roof. He admitted that the leaks complained of by Cirulnick were coming from the valley which tied into the flat roof, but claimed that the leaks were above the tie-in. Although Walter Harris admitted making repairs well after the original job was done, Keuter claimed that had repairs been made after a couple of months from the original work, he would have been able to detect them. Yet, Keuter failed to see the repairs made by Walter Harris in approximately February of 1987. The testimony of Hilson was persuasive. In comparison with Keuter's eight years of experience, Hilson has been in the roofing business for 25 years and has been the chairman of various technical and roofing code committees. He was able to determine that the shingle roof had been applied over the original shingle roof, a fact which came out at the hearing during the testimony of the Sunrise Building Official, Eugene Gardner. He was also able to explain why the roof leaked after Respondent replaced the flat roof. The flat roof was not properly tied into the sloped roof, allowing water to run under the roofing material where the two roofs joined. Additionally, the black cement Respondent had placed above the shingles in the valley of the sloped roof in the corner where the flat roof joined the sloped roof was trapping water, causing water pockets to form, from which leaks developed. This explanation is consistent with the history of the leaks. They developed only after the flat roof was replaced. The leaks coming from the tie- in stopped when Walter Harris made his repairs. The leaks originating from the valley came from the black cement which was improperly applied above the shingles in the valley. Wayne Roper was called by Respondent to testify that he saw areas of leak damage in the kitchen and back porch. He hesitantly remembered damage in the dining area as well. However, this testimony had little meaning since the entire shingle roof had been replaced shortly before Cirulnick purchased the property. There was no evidence as to the cause of or age of the interior damage described by Roper. Respondent failed to respond to the complaints of the homeowner until the Department of Professional Regulation and the City of Sunrise got involved. Cirulnick had been calling Respondent for over a month and a half. When (and if) Respondent did look at the job, he blamed the new leaks on the shingle roof and refused to repair any of them under his guarantee. Although he sent Walter Harris out to make repairs in approximately February of 1987, he did not repair the leaks associated with the water pocketing in the valley of the sloped roof where he had placed the black roof cement. Despite Respondent's contractual guarantee, the leaks in the kitchen emanating from the area where the valley ties into the flat roof, were not repaired. Respondent entered into a contract with Rolden W. Jones in April of 1986 to repair several leaks at his house and recover the breezeway between the house and garage for $750. The Jones house was located in Delray Beach. In Delray Beach, any roofing contractor must hold an occupational license. Respondent did not hold an occupational license in Delray Beach under his own name or "American Roofing". A permit was required for this job under the applicable building code and ordinances then in effect. Respondent did not obtain a permit or call for inspections for the Jones job. Respondent told Jones that Respondent held a "tri- county license" and was authorized to work and pull permits in the City of Delray Beach. Respondent operated under the name "American Roofing", which appears prominently on his contract with Jones. Respondent never placed "American Roofing" on his license or otherwise qualified said company. Before Respondent commenced work on the residence, and pursuant to the agreement between Jones and Respondent, Jones took off the existing tar paper but did not remove the nearby tile. Respondent began the job by tearing off the garage roof tile by the breezeway and putting down new tar paper. He did not repair the leak at the northeast corner of the house or by the front door. The leaks persisted with the rain since they had not been repaired. In response to Jones' calls Respondent did come out one time to place some compound on the roof to help stop the leaks, but thereafter failed to return to finish the job. Jones paid Respondent $500 the day Respondent commenced working. Jones never paid Respondent the additional $250 called for by their contract since Respondent failed to return to complete the job and failed to return Jones' phone calls or to claim the registered letter Jones sent to him. Respondent admitted that he did not finish the job, stating: "Because it was not real high priority, undoubtedly, I didn't give it priority." E. J. Brodbeck & Sons, Inc., finished the work on Jones' roof for a cost of $1077.65. Michael Brodbeck, who performed the work, found that the only area which had been worked on was the breezeway. He found the job incomplete. On September 25, 1986, Andrew Jackson, an unlicensed contractor doing business as Jackson Renovation Enterprises, entered into a contract with a company known as Madco. The contract was for $7,000 to install a new roof system on the roof of a commercial building owned by the company. Respondent knew that Jackson was not a licensed roofing contractor. Jackson had previously made an arrangement with Respondent whereby Jackson would pay the cost of permits and 10% of the contract price to Respondent in return for having his company qualified by Respondent and having Respondent pull the necessary permits. Respondent's only duty was to pull the permit. Pursuant to this arrangement Jackson contacted Respondent and, in Respondent's words, told him "I got a $7,000 contract and let's go ahead and do it." Respondent obtained the building permit. He listed the owner as "Jackson" and the job as "roof repairs & coating" for $6,500. On one occasion Respondent went to the job site. While he was there, he took a photograph of Jackson installing Madco's new roofing system. Respondent did not supervise or in any way participate in installing Madco's roofing system. The president of Madco, Samuel Weiss, dealt only with Andrew Jackson. Until a few months prior to the final hearing he had no knowledge of Respondent, never having met with or heard of him. After the roof was installed by Andrew Jackson it consistently leaked, in one instance causing a fire and major damage. In accordance with the understanding between Respondent and Jackson, Jackson paid Respondent the cost of the permit fee plus 10% i.e., $700.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered revoking Respondent's roofing contractor's license number CC C024406. DONE and RECOMMENDED this 25th day of January, 1989, at Tallahassee, F1orida. LINDA M. RIGOT, 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 January, 1989. APPENDIX TO RECOMMENDED ORDER, CASE NOS. 87-4392, 87-4393, 87-4398 Petitioner's proposed findings of fact numbered 2- 19, 23-30, and 37-43 have been adopted either verbatim or in substance in this Recommended Order. Petitioner's proposed finding of fact numbered 44 has been rejected as being subordinate. Petitioner's proposed findings of fact numbered 1, 20-22, 31-36, and 45-47 have been rejected as not constituting findings of fact. Respondent's first, second, ninth, eleventh, twelfth, fifteenth, and sixteenth unnumbered paragraphs have been rejected as being contrary to the weight of the credible evidence in this cause. Respondent's third and fourth unnumbered paragraphs have been rejected as being subordinate. Respondent's fifth, sixth, seventh, thirteenth and seventeenth unnumbered paragraphs have been rejected as not being supported by the weight of the credible evidence in this cause. Respondent's eighth, tenth, fourteenth, and eighteenth unnumbered paragraphs have been rejected as not constituting findings of fact. COPIES FURNISHED: Fred Seely, Executive Director Construction Industry Licensing Board Post Office Box 2 Jacksonville, Florida 32201 Michael J. Cohen, Esquire 517 Southwest First Avenue Fort Lauderdale, Florida 33301 George W. Harrell, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 Office of the General Counsel Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 John C. Moppert, Esquire 7491 West Oakland Park Boulevard Suite 207 Lauderhill, Florida 33319
The Issue Whether Respondent's registered roofing contractor's license should he revoked, suspended or otherwise disciplined based on charges that he violated Ch. 455, Florida Statutes (1979), by (1) abandoning a construction project; making a misleading, deceptive or untrue representation in the practice of his profession; (3) violating local building codes in two instances; and (4) engaging in the business of contracting in a county or municipality without first complying with local licensing requirements.
Findings Of Fact At all times material hereto, respondent held registered roofing contractor's license, number RC 0033215, issued by the State of Florida. The license has been in a delinquent status since July 1, 1981. (Petitioner's Exhibit 1). Between October 1, 1979, and September 30, 1980, respondent held an occupational license issued by the County of Indian River, Florida, which enabled him to engage in the business of roofing contracting in that county. However, this occupational license expired on September 30, 1980. (Petitioner's Composite Exhibit 9). In February, 1981, respondent entered into a verbal agreement with Ezra Grant to repair, for compensation, all leaks in the front and rear sections of the roof on Grant's home, which was located in Sebastian, Florida. (Testimony of Grant). When respondent and Grant entered into this verbal agreement, respondent gave Grant one of his calling cards. On the face of the calling card, in the lower right corner, was written "licensed and insured." (Petitioner's Exhibit 4; Testimony of Grant). At all time material hereto, respondent was not licensed to engage in the business of roofing contracting in the City of Sebastian, Florida. (Petitioner's Exhibit 5). Pursuant to the agreement, respondent performed roof repairs on Grant's home. (Testimony of Grant). Respondent failed to obtain a permit to perform such roof repairs in violation of Section 105.1, Standard Building Code, as adopted by the City of Sebastian, Florida in Section 7-16, Article II, Sebastian Code of Ordinances. (Petitioner's Exhibits 6 and 8a and b). On February 19, 1981, respondent submitted a bill in the amount of $800.00 to Grant for the roof repairs. The bill described the work performed and stated that the "work is guaranteed for 1 year." (Petitioner's Exhibit 2; Testimony of Grant). On February 20, 1981, Grant paid respondent, in full, for the described roof repairs. (Petitioner's Exhibit 3). Approximately two weeks after respondent performed the roof repairs, the roof over the rear portion of Grant's home began to leak, again, in the area where it was repaired. (Testimony of Grant). Respondent returned to Grant's home, on two occasions1 after the discovery of continuing leakage in the roof over the rear portion of Grant's home. However, respondent did not perform roof repairs on either occasion. On the first occasion, he merely removed equipment which he had left at Grant's home. (Testimony of Grant). After Grant complained to petitioner Department of Professional Regulation, respondent returned a second time. He inspected the rear portion of Grant's roof, removed two layers of slate from the roof, and tested it by pouring water over it. Although this test revealed that Grant's roof still leaked, Grant made no effort to repair the leakage. (Testimony of Grant). Arthur Mayer, then the Building Official for the City of Sebastian, observed respondent removing the slate from the roof. He instructed respondent that, upon finishing the work, he should go to the Sebastian City Hall and apply for a roofer's license and a permit for the roof repairs already performed on Grant's home. Respondent promised to comply. (Testimony of Mayer). But, despite his promise, he failed to apply for and obtain a license to engage in the business of roofing contracting in the City of Sebastian, Florida. He also failed to apply for and obtain a roof permit, and pay the proper late fees, as required by Section 107.2, Standard Building Code, as adopted by the City of Sebastian, Florida, in Section 7-16, Article II, Sebastian Code of Ordinances. (Testimony of Mayer; Petitioner's Exhibits 6, 8a and c). Grant, eventually, had his roof repaired by another contractor at a cost of $150.00. (Testimony of Grant).
Recommendation Based on the foregoing, it is RECOMMENDED: That respondent's registered roofing contractor's license be revoked. DONE AND ORDERED this 28th day of February, 1983, in Tallahassee, Florida. R. L. CALEEN, JR. Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 28th day of February, 1983. COPIES FURNISHED: Stephanie A. Daniel, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Jerry E. Smith Route 1, Box 111B Fellsmere, Florida 32948 James Linnan, Executive Director Construction Industry Licensing Board P. O. Box 2 Jacksonville, Florida 32202
Findings Of Fact At all times here relevant Respondent was licensed as a roofing contractor and qualifying agent and owner of Handyman Service Company, Pinellas Park, Florida. In November or December 1982, representatives of Sandalwood Club Association contacted Richard Fabrizi, who was acting as sales agent for Handyman Service Company, about some repairs desired at their condominiums. Fabrizi advised Respondent and several meetings were held with Sandalwood representatives after which contract proposals for work desired by Sandalwood were presented by Respondent. It became apparent that complete reroofing of the Sandalwood condominiums was needed; however, the association did not have sufficient funds at that time for such a project. As a result of the negotiations a repair contract was entered into between Handyman and Sandalwood Club whereby Handyman contracted to perform certain work for $16,000 (Exhibit 1). At about the time this contract was entered into Pinellas Park became incorporated and established its own building department. Respondent was qualified to perform roofing contracting in Clearwater, in whose jurisdiction Sandalwood was placed before Pinellas Park, but he had not qualified to contract in Pinellas Park. When this was realized, Respondent engaged the services of Edgar Plumtree, a licensed contractor, to pull permits and supervise the roofing at Sandalwood. The permit for this work (Exhibit 2) was signed by Joseph A. Saturno, contractor, but no evidence was presented regarding Saturno or how his name came to appear on Exhibit 2. Expert testimony was presented that the work proposed to be performed in Exhibit 1 constituted much more than repair work; however, Respondent's witness's testimony that the contract was intended by all parties to be a temporary repair, guaranteed for three years, was unrebutted. Expert testimony that the use of 90# mineral-coated roofing material in valleys did not comply with the Southern Standard Building Codes, which has been made applicable to Pinellas Park, was modified on cross-examination by testimony that such material could be used for repairs if approved by the building inspector. The evidence was unrebutted that the building inspector approved the use of the 90# roofing in the valleys. The expert witness further found violation of codes when a coating material was placed over aggregate surface on a flat roof or aggregate was reused without cleaning; however, on cross-examination this witness acknowledged that rerocking was not a code violation if sold as a repair in lieu of new roof. He did not consider the scope of the work shown in Exhibit 1 to be compatible with a minor repair, despite the intent of the parties to so treat this work. The work on the Sandalwood project was completed in March 1983. Sandalwood was in the process of issuing a contract to replace the shingles on their sloping roofs and in May 1983 Respondent met with Sandalwood Condominium Association as one of the bidders was unhappy with the roofing repairs done by Handyman. Due to brittle shingles the tie-ins were unsatisfactory. An appointment was set up with representatives of the Pinellas Park Building Inspector, Sandalwood representatives, and Handyman representatives. Handyman was also bidding on the shingle replacement contract. On May 26, 1983, this meeting was held including the successful bidder (Baker) on the shingle roof replacement contract. The building inspector, Respondent, Baker, and Sandalwood representatives went on the roofs. The building inspector suggested Baker do the tie-ins from the work done by Handyman, for which the latter agreed to pay, but Baker declined. Thereafter, the flashing between the shingle roofs and the flat roofs was installed by Handyman and the shingles by Baker. Exhibit 6 indicates the shingles do not properly cover the flashing. Respondent's testimony that the work performed by Handyman was exactly what Sandalwood requested them to perform was not rebutted.
Recommendation It is RECOMMENDED that Franklin A. Marciano be issued a letter of reprimand for completing a roofing repair contract in a municipality in which he was not licensed. DONE AND ENTERED this 19th day of October 1984 at Tallahassee, Florida. K. N. AYERS 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 19th day of October 1984. COPIES FURNISHED: Charles Tunnicliff, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Frank A. Marciano 11327 43rd Street, North Clearwater, Florida 33520 Fred M. Roche, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 James Linnan, Executive Director Board of Construction Industry Licensing Board Department of Professional Regulation Post Office Box 2 Jacksonville, Florida 32202
Recommendation Based upon the foregoing findings of fact and conclusions of law, it is recommended that the Construction Industry Licensing Board issue a written reprimand to respondent Elias Davis for failure to pull a permit on a roofing job. RECOMMENDED this 5th day of April, 1984, in Tallahassee, Florida. J. LAWRENCE JOHNSTON Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 5th day of April, 1984.
The Issue Whether Respondent's activity and conduct in the performance of a roofing contract constitutes abandonment of that contract in violation of Section 489.129(1)(k), Florida Statutes (1979), and whether Respondent willfully or deliberately violated the Volusia County Building Code, thereby contravening Section 489.129(1)(d), Florida Statutes (1979), by failing to obtain a building permit prior to commencing construction of the subject project. Based upon my observation of the witnesses and their demeanor while testifying, the arguments of counsel and Respondent, the Petitioner's proposed recommended order and the entire record compiled herein, I hereby make the following:
Findings Of Fact By its Administrative Complaint signed October 21, 1981, Petitioner, Florida Construction Industry Licensing Board, seeks to take disciplinary action against Respondent and against his license as a registered roofing contractor. Respondent, Leonard L. Clark, is a registered roofing contractor who holds License No. RC 0020933 which has been issued by Petitioner. Respondent does business under the entity Clark Roofing. On January 15, 1981, Respondent entered into a contract with one Mae Coogan, to reroof her residence. The contract specifically required Respondent to "replace any bad wood," and provide a ten (10) year workmanship warranty. (Petitioner's Exhibit No. 1.) Additionally, Respondent agreed to install a 1 x 2 inch strip and a brown aluminum facia at an extra cost of $200.00. (Petitioner's Exhibit No. 1 and testimony of John Coogan.) Mrs. Mae Coogan is an elderly woman and is incapacitated. Her son, John Coogan, who lives with her in her residence, advised her during the negotiations of the subject contract, and testified as a witness in the proceedings herein. Respondent and John Coogan's testimony establishes that construction on the subject project commenced on February 10, 1981, and ceased on March 28, 1981. At that time, based upon Respondent's representation that the job was complete, Mr. Coogan paid Respondent the entire $2,500.00 due under the terms of the contract. Shortly thereafter, Mr. Coogan discovered evidence of "bad" or "rotten wood." Mr. Coogan immediately apprised Respondent of this, whereupon Respondent initially told him that he would be back to the job site to take care of any problems that existed with the reroofing project. There is conflicting evidence as to whether or not there was a subsequent telephone conversation between Respondent and Mr. Coogan following a letter which Respondent found offensive. Respondent claims that there was such a conversation and that the parties became angry at each other. At that juncture, the parties were unable to resolve their differences. Efforts by the parties to resolve their differences reached a stalemate, and Respondent did not again visit the project site or otherwise inspect the claimed damaged by Mr. Coogan. Mr. Coogan, to substantiate his claim that there was in fact rotten or bad wood left exposed in the overhang, rafters and beams surrounding the roof, introduced several photographs which depicted the condition of the wood on the roof. (Petitioner's Composite Exhibit No. 3.) Respecting the fact that there was rotten wood, as claimed by Mr. Coogan, in the rafters and overhang, Respondent admitted the existence thereof. There is also a question about the possibility of rotten wood being covered by Respondent's employees and not replaced as required by the contract. The particular area in question is a portion of a flat roof which sagged in several places. Mr. Coogan claims that he had been advised that this was due to rotten wood underneath the shingles in an area in which he specifically claims to have asked Respondent to allow him to inspect the exposed-wood surface prior to the time in which it was covered with asphalt shingles. Respondent's workers covered this area of the roof without permitting Mr. Coogan the opportunity to inspect it. Mr. Coogan testified that the roof continued to sag in the identical places where it sagged prior to the reroofing. In this regard, Respondent admits that he might have agreed to allow Mr. Coogan an opportunity to inspect the exposed roof once the shingles were removed and prior to the time that he recovered (reroofed) the flat roof. Respondent further testified that this was not due to any effort on his part to conceal or otherwise hide rotten wood and, in fact, he claimed to have covered or replaced any bad or rotten wood. In this regard, Mr. Coogan noticed at least four water leaks from his roof prior to the time that Respondent reroofed his mother's house; however, he testified, on cross-examination, that he has not seen any leaks since Respondent has completed the subject project. Bob McConnell, Volusia County Building Inspector for approximately five years, inspected the roofing job completed by Respondent for Mrs. Coogan on July 28, 1981. Mr. McConnell found that the roofing job did not comply with the contract in the following regards: The 1 x 2 inch strip beneath the brown aluminum facia, called for as an extra, was not installed; There was visible rot in the sheathing; A short hip (rafter) was replaced with unsound wood; and A rafter tail had visible rot. In this regard, Mr. McConnell, while also reporting that there were soft spots in the built-up roof, could not testify with certainty that they were the result of wood rot. Respondent testified that he has tried to contact Mr. Coogan on several occasions to correct any claimed deficiency. Respondent stands, at this time, willing to correct any deficiency that exists or to correct any problem which stems from his deviation from the contract. In this regard, Respondent has offered, and no offers, to remove the shingles from the entire roof and allow for it to be inspected by Respondent or any designated roofing contractor whom Coogan or Petitioner selects. Respondent will replace any "bad" or "rotten" wood which he has been claimed to have covered. However, Respondent expects to be paid for reroofing this job in the event that in an inspection reveals that no "bad" or "rotten" wood was covered as Mr. Coogan and Petitioner claim. Inspector McConnell has known Respondent in excess of twenty-five (25) years and is unaware of any claim that Respondent has performed any unworkmanlike or "shoddy" roofing repairs. Finally, in this connection, Respondent introduced letters from three (3) area builders who attested to Respondent's excellent workmanship. (Respondent's Composite Exhibit No. 3.)
Recommendation Based on the foregoing findings of fact and conclusions of law, it is hereby RECOMMENDED: That the Respondent be placed on probation for a period of two (2) years and that the term of probation be suspended for a period of sixty (60) days, during which time Respondent shall be allowed an opportunity to return to the Coogan residence and replace any existing exposed "rotten" or "bad" wood which should have been replaced pursuant to the terms of the contract. In the event that the Respondent properly completes the replacement of the rotten or damaged wood on this project, following an inspection by one of Petitioner's agents, it is further RECOMMENDED: That the entire term of the probation be suspended. In the event that Respondent fails to properly complete this project, following an inspection by one of Petitioner's agents, it is further RECOMMENDED: That the entire term of probation be instituted without the necessity of further hearing. RECOMMENDED this 11th day of August, 1982, in Tallahassee, Florida. JAMES E. BRADWELL, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 11th day of August, 1982.
The Issue The issues in this case are whether Respondent, Linda Ratliff, d/b/a Suncoast Roofing of Polk County, Inc. (Respondent), violated provisions of Chapter 489, Florida Statutes (2009),1 as alleged in the Administrative Complaint dated June 21, 2010, issued by Petitioner, Department of Business and Professional Regulation, Construction Industry Licensing Board (Petitioner or Department), and, if so, what penalties should be imposed.
Findings Of Fact Petitioner is the state agency charged with regulating the practice of contracting, pursuant to Section 20.165, Florida Statutes, and Chapters 455 and 489, Florida Statutes. Respondent is, and has been at all times material to the allegations of this case, a certified roofing contractor, license number CCC 058307. Respondent’s license is currently in “probation, active” status. Respondent’s address of record is 2023 Shoreland Drive, Auburndale, Florida 33823. Linda Ratliff, individually, is the licensed, primary qualifying agent for Suncoast Roofing of Polk County, Inc. (Suncoast). J. Ratliff works in the family business, and has done so for approximately 17 years. As the primary qualifying agent for Suncoast, Linda Ratliff is responsible for the supervision of all operations of the business. Such operations include, but are not limited to, field work at contract sites, financial responsibility for the entity, and all contractual obligations of the company. In this case, the only contractual obligation in dispute is in relation to a contract between Respondent and Ray and Loretta Noble. On or about February 25, 2009, Respondent entered into a contract (the contract) with Ray and Loretta Noble. The contract described the work to be performed. The address for the property was identified as 1021 and 1023 Brunell Road, Lakeland, Florida. The Noble property was a duplex, and the contract required the owner to pay $6,800.00 “when finish with work.” The terms of the contract specified that Respondent would: remove the old, flat roofing; replace felt with glass base; fix any rotten wood; recover the roof with 1.5 Iso Board installation and Rubber Bitumen; replace roof stacks with new stacks; obtain the permit; torch down Bitumen; install 12-year manufacturer warranty on shingles, 12 years on Rubber Bitumen, 15 TPO; provide a five-year warranty on labor; clean-up and haul off all trash from roof; roll yard with magnetic roller; provide professional job supervision, and re-shingle the front of the apartment. Respondent applied for and received a building permit for the Noble contract on or about February 27, 2009. Thereafter, Respondent proceeded with work on the property. On or about March 3, 2009, Respondent requested payment from Mr. Noble regarding completion of the roof. J. Ratliff, acting in his capacity as an agent for Respondent, represented to Mr. Noble that the job was finished and that payment was due and owing. Based upon Mr. Ratliff’s representations, Mr. Noble believed that the roof had passed inspection, and that the roof had been installed as presented in the contract. Accordingly, Mr. Noble paid Respondent the full contract price for the job. Unbeknownst to Mr. Noble, the new roof did not pass inspection. In fact, the roof never passed inspection. Initially, Respondent failed to perform minor work to ensure that the roof was water tight. For each deficiency identified by a city inspector, Respondent returned to the job site and made minor repairs. Ultimately, the job could not pass inspection due to the placement of air-conditioning units on the roof of the structure. Respondent did not remove the units prior to installing the new roofing system. In order to assure a water- tight roof, the units would have needed to be removed so that roofing materials could be place underneath. Afterward, the units would have to be re-positioned on the roof. Instead, Respondent sealed around the existing air conditioners as best as could be done, but Respondent’s work did not prevent water from intruding below. After a series of failed inspections, on or about July 7, 2009, city officials, Respondent, and the property owner met at the job site to determine what could be done to cure the roof problems. City officials advised the property owner that the air-conditioning units would need to be moved to allow the installation of roofing material and re-set afterwards. Mr. Noble did not want to incur the cost of the additional project. Respondent also refused to correct the job so that it could pass inspection. Respondent advised Mr. Noble that it would cost an additional $800.00 to have a licensed person remove the units and re-set them. Respondent and Mr. Noble reached an impasse and neither would compromise. Respondent never returned to the job site, and did not obtain an acceptable inspection for the work performed. Eventually, Mr. Noble had another company re-roof the structure and incurred an additional $7,400.00 in roofing expenses. Respondent did not refund any of Mr. Noble’s money, nor did Respondent honor the terms of the contract. The roof failed not fewer than seven inspections and several of the failures were unrelated to the issue associated with the air- conditioning units. The investigative costs for this case totaled $325.90. Respondent has prior disciplinary action against the license, as noted in Petitioner’s Exhibit C. Respondent’s claim that an additional licensee would have been required to remove the air-conditioning units and re- set them, is not mitigation of the circumstances of this case. Respondent had the option of not undertaking a project that required the removal of the air-conditioning units, in order to assure a water-tight result. As the licensed party, Respondent knew or should have known how to install a water-tight roofing system.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered finding Respondent guilty of violating the provisions of law found in Counts I, II, III, IV, VI, and VII. Based upon the guidelines, past disciplinary actions against the Respondent, and a totality of the circumstances, it is further recommended that an administrative fine in the amount of $5000.00 be imposed for the violations noted above. Also, it is recommended that Respondent’s license be suspended for six months. Finally, it is recommended that Respondent be required to reimburse Petitioner for the investigative and other costs incurred in this case to the full extent allowed by law. DONE AND ENTERED this 30th day of December, 2010, in Tallahassee, Leon County, Florida. S J. D. PARRISH Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 30th day of December, 2010.
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.
Findings Of Fact At all times material to these proceedings, Respondent Albritton was licensed as a certified roofing contractor and held license number CC C015182. Mr. Albritton was the qualifying agent for Albritton Roofing, Inc. On or about May 30, 1985, Albritton Roofing, Inc. submitted a proposal to Inter-Urban Developments, Inc., to install a tile roof on the single-family residence which was being built for Ernani and Giorgina Grilli in Cape Coral, Florida. Inter-Urban Developments, Inc., was the general contractor for the construction of the custom home being built for Mr. and Mrs. Grilli. The proposal reflected that Albritton Roofing, Inc. was willing to install a roof on the Grilli residence. The roof was to consist of the following: a thirty pound base felt, a ninety pound felt which was to be hot mopped, and a Monier tile roof covering. The tile was to be placed on the roof by using the mud application system. The tiles which had to be cut would be sawed and mitered. The proposed cost of the roof was to be $8,370.00. When the general contractor decided that the tiles could be broken instead of cut, the price was reduced to $7,588.00 The modified proposal was accepted by the general contractor and Albritton Roofing, Inc. It was agreed that the work would be completed in a workmanlike manner, according to the standard practices. In the City of Cape Coral at the time the roof was installed on the Grilli residence in 1985, the standard practice of local roofers was to apply tiles over a thirty pound base felt and a hot mopped ninety pound felt roof with a mud system. The tiles were decorative in nature and were used to keep the sun off the true roof, the hot mopped, ninety pound felt. Fewer tiles were used per square under this method of application and a head lap of one and one-half inches was used during the tile application. Although Cape Coral was without a building code, the head lap requirement was set forth in the county building code. In addition, pursuant to local practices, tiles were marked and broken with a trowel when it was necessary to use a smaller tile. Instead of sawing and mitering the tiles together for a finished look, the mud was used over the top of the tiles in the areas where they were to be joined. Upon completion of the installation, the roof was accepted by the general contractor and the owners of the property. A three-year guarantee of all materials and workmanship furnished by Albritton Roofing, Inc. was issued on October 28, 1985. The guarantee expressly excepted acts of God or accidents from its provisions. On March 18, 1987, the owners of the residence had a pre-installation inspection of the roof made by the installers of a solar pool heating system. During the inspection, it was discovered that many of the roof tiles were loose. The owners were immediately informed of the situation and were advised that the solar heating company would not be responsible for the condition of the roof. After the solar pool heating system was installed on the roof, the owners notified the Respondent Albritton that the roof tiles were loose, and that they wanted Albritton Roofing, Inc. to honor its guarantee. When one of the Respondent's employees went to view the roof, he discovered that solar panels had been installed on the roof. When the employee saw that changes had been made to the roof, he leapt to the conclusion that the loose and broken tiles on the roof were caused by the solar heater installers or other people walking on the roof tiles. However, in spite of the belief that the tile damage was not caused by faulty materials or improper workmanship, Albritton Roofing, Inc. replaced a whole pallet of the Monier tiles on the Grilli roof, free of charge on April 28, 1987. After the tiles were replaced by Albritton Roofing, Inc., the owners continued to experience problems with loose and sliding tiles. In July 1987, Mr. and Mrs. Grilli made a written demand upon Albritton Roofing, Inc. to honor the guarantee and to properly secure the roof tiles. In response to the written demand, Albritton Roofing, Inc. stated that the tiles had been cemented down as they were supposed to have been, and that the problem of loose tiles was caused by the solar panel installers, who broke the tiles loose from the cement when they walked on the roof. Albritton Roofing, Inc. took the legal position that the repairs needed were not caused by faulty materials or workmanship. Thus, the guarantee did not apply in this situation. In August 1987, the roofing inspector for Cape Coral completed a roof inspection at the Grilli residence. It was the inspector's opinion that every section of the roof had loose tile. From his visual inspection, the inspector was able to observe that tile had begun to slide down past the two inch head lap on various areas of the roof. Many of the hip and ridge tiles were loose. In response to the inspector's written report, which opined that the mud might not have been placed at the proper locations under the tiles or that there might have been a problem with the mud mixture, an inspection was completed of the roof by C.A. Wunder, Jr. of C.A. Wunder Engineering, Inc. on behalf of Albritton Roofing, Inc. In September 1987, Mr. Wunder completed his inspection by climbing a ladder and checking tiles within arms's reach in three areas. The inspection revealed that tiles were loose in large areas of the roof. An examination of some of the loose tiles revealed that all of these tiles had mud under them and that the bond between the mud and tile had been broken. It was suggested that people walking on the roof or strong winds provided uplift which broke the bond between the tiles and the mud. On December 7, 1987, a roof inspection was completed by D.H. Gracey on behalf of Mr. and Mrs. Grilli. Mr. Gracey is a roofing consultant who testifies in litigation matters as an expert witness. Dr. Gracey observed that sixty percent of the tiles were loose and had no bond against slippage or wind uplift. Another inspection of the roof was conducted by Jack Hurlston, a certified roofing contractor hired by the Department on August 2, 1989. During the inspection, approximately seventy-five percent of the tiles were loose due to lack of adhesion. In some areas, one bed of mud was used to hold two tiles. Insufficient mud was used in setting tile caps on hips. Hip caps had been stretched leaving insufficient head lap. The proper way to apply the mud on roof tiles in Cape Coral in 1985, was to place the mud about halfway down each tile about four or five inches from the bottom of the tile. Sufficient mud beds had to be placed underneath the tiles as well in order to attach them to the roof. The Respondent Albritton was on site while the tile was being installed on the Grilli residence in 1985. The employee of Albritton Roofing, Inc. who installed the tile on the Grilli residence failed to consistently follow the Respondent's instructions that mud be placed on each tile in a certain spot before the tile was bonded to the roof. The installer's failure to follow instructions for the application of the mud was misconduct which contributed to the roof's decline. In addition, the use of one mud bed to hold two tiles in some areas was a defect in workmanship under the applicable local standards during the time the roof was applied. The owners of the residence have been harmed by the misconduct in that they have loose tiles which continue to slide down the roof and occasionally fall into the yard. The tiles will eventually fail to protect the ninety pound felt from sun damage. The tile roof was applied for this purpose in addition to its cosmetic benefit. No notice of mitigation or aggravation was submitted to the Hearing Officer at the formal hearing.
Recommendation Based upon the foregoing,, it is RECOMMENDED: That the Respondent, as the qualifying agent, be found guilty of having violated Section 489.129(1)(m), Florida Statutes, by failing to adequately control construction activities which resulted in misconduct by the tile installers who failed to properly apply the mud beneath the tiles in some areas of the roof. As a result, there are loose tiles on the roof which were caused by the faulty workmanship. That the Respondent be found not guilty of all of the other alleged violations in the Administrative Complaint. That the Respondent be required to pay a $500.00 fine as set forth in Section 21E-17.001(19)(b), Florida Administrative Code. The reason the lower end of the fine scale is recommended by the Hearing Officer is that the misconduct by the installers was not readily observable by the Respondent during his inspection of the tile roof cover. In addition, the Respondent consistently acted in good faith in his attempts to negotiate with the owners of the roof. DONE and ENTERED this 29th day of March, 1990, in Tallahassee, Leon County, Florida. VERONICA E. DONNELLY Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 29th day of March, 1990. APPENDIX TO RECOMMENDED ORDER Petitioners's proposed findings of fact are addressed as follows: Accepted. Accepted. See HO #1. Accepted. See HO #1 - #3. Accepted. See HO #6. Rejected. Inconsistent with other, accepted testimony of other witnesses. See HO #6. The relevant point, that loose roof tiles were discovered in March 1987, is accepted. Accept that Albritton issued a three-year guarantee. See HO #5. Accept that tiles were replaced on the roof after March 1987. See HO #8. Accept that the owners continued to experience problems with loose and sliding tiles, and made a written demand to Albritton to honor the warranty. See HO #9. Reject the proposed finding that replacement tiles were a different color. Not proved by competent substantial evidence. Rejected. Improper lay opinion. Contrary to fact. See HO #4. Accept the first two sentences. See HO #11 and #12. Reject third sentence. Irrelevant. Reject fourth sentence. Lack of proper factual foundation on which to base his conclusion. Accept that D.H. Gracey examined the roof. See HO #13. Reject his opinion that the tiles were laid over a sub-roof. Contrary to fact. See HO #4. Reject the opinion of D.H. Gracey. Mr. Gracey approached the problems regarding the roof as if it were a product's warranty case. His opinions did not aid the trier of fact in the determinations which had to be made in these proceedings. His opinions that the tiles were not installed as per the manufacturer's recommendations were irrelevant. Reject the first sentence. Irrelevant. Accept the second sentence. See HO #13. Rejected. Irrelevant. Reject that sixty percent of the tiles were loose. The rest of the paragraph is accepted. See HO #14. Rejected. Irrelevant. Rejected. Not probative of anything. Irrelevant. Rejected. Speculative. Rejected. Irrelevant to the issues in this proceeding. Accepted. See HO #19. Rejected. Irrelevant. Rejected. Contrary to proof established at hearing. Respondent's proposed findings of fact are addressed as follows: Accepted. See HO #3. Accepted. See HO #4. Accepted. See HO #4. Accepted. Accepted. See HO #3 and #4. Rejected. Contrary to fact. See HO #16 - #18. Copies furnished: Andrea Bateman, Esquire Department of Professional Regulation 1940 North Monroe, Suite 60 Tallahassee, Florida 32399-0792 Thomas M. Brondstetter, Esquire 1617 Hendry Street Post Office Box 2397 Fort Myers, Florida 33902 Kenneth E. Easley, Esquire General Counsel Department of Professional Regulation 1940 North Monroe, Suite 60 Tallahassee, Florida 32399-0792 Fred Seely, Executive Director Construction Industry Licensing Board 111 East Coastline Drive, Room 504 Post Office Box 2 Jacksonville, Florida 32202
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 The issue in this case is whether Respondent committed negligence in the practice of engineering as alleged in the amended administrative complaint filed by Petitioner and, if so, the penalty that should be imposed.
Findings Of Fact Based upon the oral and documentary evidence adduced at the hearing and the entire record in this proceeding, the following findings of fact are made: At all times pertinent to this proceeding, Respondent was duly licensed as a professional engineer in the State of Florida, having been issued license number PE 0023976. In September, 1992, Dade County passed and adopted an emergency ordinance amending the South Florida Building Code to handle the processing of construction permits and inspections created by the devastation of Hurricane Andrew. Section 6(e) of the Emergency Ordinance addressed roof repairs and required a minimum of six nails to be used for each shingle. By early 1993, Dade County Roofing Inspectors were severely overtaxed by the volume of work occasioned by Hurricane Andrew. To ensure more timely inspections, Dade County Officials approved the use of private practice architects and engineers to assist the county in making inspections and affirming code compliance. At all times pertinent to this case, Robert Brombach (the "Owner") was the owner of a residence (the "House") located at 8050 SW 92nd Avenue, Miami, Florida. In March 1993, the Owner hired Hytek Roofing to re-roof his residence because of damage from Hurricane Andrew. The re-roofing job was to begin on March 8, 1993 and was to be completed by March 23, 1993. At all times pertinent to this case, Respondent was employed by All State Engineering & Testing Consultants, Inc. Hytek Roofing hired Respondent in his capacity as a special inspector for Dade County to perform the shingle inspection/final inspection for the re- roofing of the House. The roof of the House had two separate systems. The front and back of the roof were pitched sufficient to hold shingles. There was also a flat deck portion of the roof that had very little pitch. Prior to the repair work at issue in this case, this flat portion was hot mopped and tarred. Pursuant to the 1988 South Florida Building Code which was in effect at the time of this re-roofing job, composition shingles were not to be applied to roofs having an incline of less than 2 1/2 inches per foot. After it completed re-roofing the shingled section of the roof, Hytek contacted Respondent to do an inspection. On March 23, 1993, Respondent conducted a "shingle inspection/final inspection" of the roof and prepared a Daily Field Inspection Form (the "Inspection Form".) Respondent's Inspection Form states, "JOB DESCRIPTION: The entire roof completed as per the codes and specifications...INSPECTION RESULTS: Placement of shingles comply [sic] with the New South Florida Building Codes [sic] and Requirement." Respondent submitted his Inspection Form to the Metropolitan Dade County Building & Zoning Department. Subsequent to Respondent's inspection, Hytek Roofing applied shingles to the flat deck portion of the roof. After applying the shingles on the flat roof, Hytek contacted Dade County building officials to conduct a roof inspection. At all times pertinent to this proceeding, Manuel Jimenez was a Metropolitan Dade County Building & Zoning Department Roofing Inspector. On March 31, 1993, Jimenez conducted an inspection of the House's roof. During his inspection, Inspector Jimenez performed a spot check of the roof on the front part of the House. All of the 20-30 shingles he examined in the selected area did not comply with the six nail Dade County code requirement. In fact, all of them were found to contain only three (3) nails a piece. In addition, some of the nails were above the tar strip. Jimenez also noted that the back of the roof did not appear to be properly laid. The back roof shingles were not laid in accordance with the manufacturer's recommendations nor were they straight. After spot checking the front and back of the roof, Inspector Jimenez noticed the shingles on the flat portion at the rear of the House. Using a level, Inspector Jimenez measured the "pitch" on the flat roof as "one and one- quarter to twelve" instead of the code required minimum of "two and one-half to twelve." He concluded that the roof was in violation of the code because shingles were used on the flat roof which did not have an adequate pitch. On April 1, 1993, Jimenez issued a Summons to Hytek Roofing noting the above violations and requiring corrections including the re-nailing of shingles below the tar strip with six (6) nails per shingle, and the removal of the shingles from the flat roof. The county also required that the back of the roof be replaced. The Metro Dade Building & Zoning Roofing Inspections Checklist requires a shingle inspection to include an inspection of the tie-in to any flat roof. Because the flat deck portion of this roof was in the back, Respondent should have looked at the back of the roof in order to inspect the tie-in to the flat deck. Respondent introduced a number of form documents which reflect language used in the industry by Special Inspectors when certifying the completion of construction work. The standard language on those documents provides that by filling in the designated blanks, the Special Inspector asserts that the work, to the best of his knowledge or belief and professional judgment, is in substantial accordance with the approved plans and the South Florida Building Code. Respondent's Daily Field Inspection report was prepared on his company's letterhead, not a form document and contained Respondent's statement that the entire roof had been completed as per the codes and specifications. Respondent's report did not contain the qualifying language set forth on the forms presented at the hearing. In other words, Respondent did not qualify his statement or state the extent of his investigation leading to that statement. After considering all the evidence, it is concluded that Respondent's inspection was insufficient and that the conclusions set forth in his report were inaccurate. Moreover, at least some of the Code Violations cited by the county should have been detected by a reasonable inspection. Consequently, it is concluded that Respondent failed to utilize due care in the performance of his engineering duties.
Recommendation Based upon the foregoing, it is RECOMMENDED: That the Board of Professional Engineers enter a Final Order finding Alberto Ramirez guilty of violating Section 471.033(1)(g), Florida Statutes, as alleged in the Amended Administrative Complaint. As a penalty for the violation, impose an administrative fine of one thousand ($1,000.00) dollars, issue a reprimand, and place the license of Alberto Ramirez on probation for a period of two (2) years with such reasonable terms as may be imposed by the Board. DONE AND RECOMMENDED this 24th day of July, 1995, in Tallahassee, Leon County, Florida. J. STEPHEN MENTON 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 24th day of July, 1995. APPENDIX TO RECOMMENDED ORDER, CASE NO. 94-4312 Rulings on the proposed findings of fact submitted by the Petitioner: Adopted in substance in findings of fact 1. Adopted in substance in findings of fact 4. Adopted in substance in findings of fact 8. Adopted in substance in findings of fact 5. Rejected as unnecessary. Adopted in substance in findings of fact 5. Adopted in substance in findings of fact 7. Adopted in substance in findings of fact 6. Adopted in substance in findings of fact 11. Adopted in substance in findings of fact 12. Adopted in substance in findings of fact 13. Adopted in substance in findings of fact 14. Adopted in substance in findings of fact 16. Adopted in substance in findings of fact 17. Adopted in substance in findings of fact 18. Adopted in substance in findings of fact 2. Adopted in substance in findings of fact 9. Adopted in substance in findings of fact 18. Rejected as unnecessary. Rejected as unnecessary. Adopted in substance in findings of fact 19. Adopted in substance in findings of fact 21. Adopted in substance in findings of fact 21. Subordinate to findings of fact 25. Adopted in substance in findings of fact 22. Adopted in substance in findings of fact 22. Adopted in substance in findings of fact 23. Adopted in substance in findings of fact 24. Rejected as a summary of testimony rather than a finding of fact. The subject matter is addressed in Findings of Fact 25 and in the Conclusions of Law. Rejected as a summary of testimony rather than a finding of fact. The subject matter is addressed in Findings of Fact 25 and in the Conclusions of Law. Rejected as a summary of testimony rather than a finding of fact. The subject matter is addressed in Findings of Fact 25 and in the Conclusions of Law. Adopted in substance in findings of fact 25. Rulings on the proposed findings of fact submitted by the Respondent: Adopted in substance in findings of fact 1. Rejected as unnecessary. Adopted in substance in findings of fact 2. Adopted in substance in findings of fact 3. Adopted in substance in findings of fact 4 and 5. Adopted in substance in findings of fact 8. Adopted in substance in findings of fact 5. Adopted in substance in findings of fact 10. Adopted in substance in findings of fact 11 and 12. Subordinate to findings of fact 25. Rejected as unnecessary and subordinate to findings of fact 25. Adopted in substance in findings of fact 12. Subordinate to findings of fact 25. Adopted in substance in findings of fact 14. Adopted in substance in findings of fact 15. Adopted in substance in findings of fact 16 and 17. Adopted in substance in findings of fact 18. Subordinate to findings of fact 19. Adopted in substance in findings of fact 20. Adopted in substance in findings of fact 20. Adopted in pertinent part in findings of fact 21. COPIES FURNISHED: Angel Gonzalez Executive Director Dept of Business and Professional Regulation Board of Professional Engineers 1940 North Monroe St, Suite 60 Tallahassee, FL 32399-0792 Lynda L. Goodgame General Counsel Dept of Business and Professional Regulation 1940 North Monroe Street, Suite 60 Tallahassee, FL 32399-0792 Charles F. Tunnicliff Chief Attorney Dept of Business and Professional Regulation 1940 North Monroe St, Suite 60 Tallahassee, FL 32399-0792 Reydel (Sonny) Santos, Esq. Inter-American Law Center 10753 SW 104th Street Miami, FL 33176-8842
