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 The issues in this case are whether Respondent engaged in the unlicensed practice of contracting, and, if so, what penalty should be imposed.
Findings Of Fact The Department is the state agency responsible for, inter alia, licensing and monitoring general contractors. Department headquarters are in Tallahassee, Florida. Part and parcel of the Department's duties is the sanctioning of persons who practice general contracting without a license. Respondent is an individual living in Tampa, Florida. Respondent did not appear at final hearing and has not filed any post-hearing motions concerning his failure to appear. The Administrative Complaint filed by the Department makes the following allegations: Respondent was not registered or certified to engage in the practice of contracting. Respondent, doing business as J.D.S. Roofing, contracted with Vivian Virgil to perform certain roofing work, specifically, to remove and replace shingles and related work to reconstruct the roof on Virgil's home. A contract between the parties dated April 21, 2006, was signed by Virgil and Respondent (or his authorized representative). Virgil made two payments to Respondent in the amounts of $2,500.00 (via check number 1037) and $1,564.46 (via check number 1040). She also made a payment of $2,860.54 to The Home Depot to pay for materials ordered by Respondent for Virgil's roofing repairs. Respondent then made the contracted-for repairs and replacement of Virgil's roof pursuant to the contract.2 Virgil, however, was not pleased with the quality of the work. She is unable to get a warranty on the roof because Respondent's work was inferior. Virgil must have another contractor re-do the roof in order to get a warranty. Neither Respondent nor his company, J.D.S. Roofing, is or has ever been licensed by the State of Florida as a contractor. However, Respondent held himself out as a general contractor in his dealings with Virgil.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered by the Department of Business and Professional Regulation finding that Respondent, James Delaughter, is guilty of the unlicensed practice of contracting and imposing a fine of $5,000.00. DONE AND ENTERED this 8th day of April, 2008, in Tallahassee, Leon County, Florida. R. BRUCE MCKIBBEN 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 8th day of April, 2008.
Findings Of Fact At all times relevant, the Respondent was licensed by the Construction Industry Licensing Board as follows: License No(s): RC 0021957 Licensed as: Registered roofing contractor Address of record is in: New Port Richey, Florida A certain contracting job was undertaken as follows: Customer: Stella Domas Approximate contract date: 6-85 Approximate price: $600 Job location: New Port Richey, Florida Job generally consisted of: Repair roof of Customer's house Said job was undertaken by the contracting business Respondent was associated with and responsible for in his capacity as a licensee. Respondent proceeded without a timely permit having been issued, violating local law, either deliberately or through improper supervision, in violation of 489.129(1)(d), (m), (j) 489.119; and 489.105(4), Florida Statutes. Respondent proceeded without timely obtaining all required inspections, violating local law, either deliberately or through improper supervision, in violation of 489.129(1)(d), (m), (j); 489.119; 489.105(4), Florida Statutes. Respondent gave a guarantee on said job to the Customer, and thereafter failed to reasonably honor said guarantee, in violation of 489.129(1)(m), (j); 489.119; 489.105(4), Florida Statutes. Respondent performed said work in a substantially deficient manner, therefore, violating 489.129(1)(m). Respondent previously has been disciplined by the State Construction Board. STIPULATED DISPOSITION Based on the Stipulated Findings Of Fact and Conclusions Of Law, the parties agree to the following disposition of the Amended Administrative Complaint: The Respondent shall pay a $1500 fine, payable within 60 days from entry of a final order approving this stipulated disposition; and The Respondent's registered roofing contractor license number RC 0021957 shall be suspended for 60 days, beginning 60 days from the entry of a final order approving this stipulated disposition.
Recommendation It is recommended that the Construction Industry Licensing Board enter a final order approving and incorporating the settlement stipulation between the parties. RECOMMENDED 28th day of July, 1988, in Tallahassee, Florida. J. LAWRENCE JOHNSTON 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 28th day of July, 1988. COPIES FURNISHED: Jack M. Larkin, Esquire 806 Jackson Street Tampa, Florida 33602 Lee Ellen Acevedo, Esquire 7716 Massachusetts Avenue New Port Richey, Florida 34653 Fred Seely, Executive Director Construction Industry Licensing Board Department of Professional Regulation Post Office Box 2 Jacksonville, Florida 32201 William O'Neil, Esquire General Counsel Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750
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.
Findings Of Fact Respondent is Richard McDougal, holder, at all times pertinent to these proceedings, of registered roofing contractor license no. RC 0050466. Petitioner is the Department of Professional Regulation, Construction Industry Licensing Board, the state agency charged with the regulation of contractors in the State of Florida. Respondent was the qualifying agent for D & R Roofing Co., at all times pertinent to these proceedings. On July 31, 1989, Arla Jackson signed and accepted Respondent's written proposal to re-roof a house belonging to Jackson, located in Washington County, Florida. Prior to engaging Respondent to re-roof the house, Jackson had only a minimal amount of leakage in a couple of corners inside the house. Under the terms of the written proposal provided by Respondent to Jackson, Respondent agreed to remove the old roof covering from the structure; install a new three ply fiberglass felt covering; install new eave metal around the roof perimeter; extend the roof a short distance at one end; and top coat a utility building on the premises. Further, Respondent agreed to haul away debris resulting from the job. Completion of the roofing project by Respondent and receipt of payment from Jackson in the amount of $3,000 occurred on August 9, 1989. $2,900 of this amount was payment to Respondent for replacing the old roof while the remainder satisfied charges by Respondent for additional work required to extend the roof. Shortly after Respondent's completion of the roof replacement, Jackson began to telephone Respondent, requesting that he come and repair holes in the roof that were leaking water as the result of rain. Respondent came to Jackson's house on at least three occasions to attempt to stop leaks in the roof. He eventually determined that he had stopped the leaks and told Jackson that, as far as he was concerned, there was no roof leakage problem. Jackson's flat roof continued to leak. Eventually, Gus Lee, an unlicensed roofing assistant to H.M. Strickland, a local licensed contractor, agreed to repair her roof and eliminate the leakage problem. Strickland's signature appears with Lee's on written documentation bearing the date of October 1, 1989, and promising a "fine roof with no leaks; and I will stand behind it." Jackson accepted the Strickland offer. Jackson paid approximately $1,925.00 to Lee for work in connection with replacing the roof and painting the interior ceiling of the house. She paid an additional $653.79 for building supplies in connection with the project. Overall, Jackson paid approximately $2,578.79 for labor and materials to re-roof her house and repair the interior ceiling damage resulting from the leakage. This amount was in addition to the amount previously paid to Respondent. On October 20, 1989, Lee, the unlicensed assistant to Strickland and the person who actually undertook the task of re-roofing Jackson's house, removed the previous roofing material placed on Jackson's house by Respondent. Lee observed no fiber glass felt covering material on Jackson's roof at the time he re-roofed the house. Lee's testimony at hearing was credible, candid and direct. Although unlicensed as a contractor, Lee's attested experience supports his testimony regarding what he observed and establishes that Respondent failed to comply with his agreement to Jackson to provide fiber glass felt during the initial roofing of the house and instead used a less expensive material. Lee's testimony, coupled with that of Jackson and Lee's son, also establishs that significant damage had occurred to the interior ceiling of Jackson's house as the result of leakage after completion of work by Respondent. After Lee completed the re-roofing of Jackson's home, inclusive of use of a six ply felt covering on the roof accompanied by pea gravel and sealant, the roof's leakage stopped.
Recommendation Based on the foregoing, it is hereby RECOMMENDED that a Final Order be entered imposing an administrative fine of $1500 upon Respondent's license as a registered roofing contractor. DONE AND ENTERED this 25th day of November, 1991, in Tallahassee, Leon County, Florida. DON W. DAVIS Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Fl 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 25th day of November, 1991. APPENDIX TO RECOMMENDED ORDER The following constitutes my specific rulings, in accordance with Section 120.59, Florida Statutes, on findings of fact submitted by the parties. Petitioner's Proposed Findings. 1.-4. Adopted, though not verbatim. 5.-8. Subordinate to Hearing Officer's Conclusions. 9.-11. Adopted in substance, though not verbatim. Respondent's Proposed Findings. None submitted. COPIES FURNISHED: Robert B. Jurand, Esq. Department of Professional Regulation The Northwood Centre, Suite 60 1940 N. Monroe St. Tallahassee, FL 32399-0792 Richard McDougal Box 10277 Panama City, FL 32404 Daniel O'Brien, Executive Director Construction Industry Licensing Board Department of Professional Regulation Post Office Box 2 Jacksonville, FL 32201 General Counsel Department of Professional Regulation The Northwood Centre, Suite 60 1940 N. Monroe St. Tallahassee, FL 32399-0750
Findings Of Fact At all times material hereto Respondent has been a registered roofing contractor in the State of Florida, having been issued license number RC- 0042963. At no time material hereto did Respondent's license qualify "Energy Plus Roofing" with Petitioner. Notice of the final hearing herein was provided to Respondent at his last known address of record in Bradenton, Florida, as shown on his Election of Rights form. The notice was not returned by the post office as "undeliverable" or for any other reason. In April, 1988 Respondent entered into a contract to perform certain roofing work for John Beede at a contract price of $1,610. Respondent executed this contract on behalf of Energy Plus Roofing, and provided a ten year warranty on workmanship and materials. Beede paid the full contract price to Respondent for work performed, but Respondent failed to correct leaks in Beede's Florida room. In fact, after the job Beede had additional leaks in his Florida room. Respondent failed to respond to several calls from Beede for further corrective work under the ten year warranty. Finally, Beede had to have a "roof over" constructed to correct the leaks in his Florida room at an additional cost of $4,000. Respondent did not obtain any permit from Manatee County for the work he performed for Beede, although Manatee County requires contractors to obtain permits for such jobs in excess of $200. Additionally, Respondent did not register "Energy Plus Roofing" with Manatee County, although Manatee County does require such registration. In March, 1986 Respondent entered into a contract with Marie Allen for roof repair on her mobile home in Ruskin, Hillsborough County, Florida. Allen did not have any leaks in her roof at the time, but she was simply seeking preventive maintenance. Respondent contracted with Allen on behalf of Energy Plus Roofing to pressure clean her roof and "apply energy plus roof system to (her) existing roof" for a contract price of $1,000. Respondent provided a ten year warranty on workmanship and materials. After Respondent's crew pressure cleaned her roof, Allen began experiencing leaks, and she presently continues to have four leaks which she did not have before work was performed by Respondent. She has tried repeatedly to contact Respondent under the warranty, but has been unsuccessful. Respondent is not registered in Hillsbourough County, and he did not obtain any permits for the Allen job. Hillsborough County requires contractors to be registered and to obtain permits for jobs such as he performed on Allen's roof. The only name on Respondent's license is his own individual name, Emanuel Fred Mosley.
Recommendation Based upon the foregoing, it is recommended that Petitioner enter a Final Order suspending Respondent's registration for a period of one (1) year and imposing an administrative fine of $1,000 upon Respondent. DONE AND ENTERED this 4th day of May, 1987 in Tallahassee, Florida. DONALD D. CONN 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 4th day of May, 1987. APPENDIX TO RECOMMENDED ORDER, CASE NO. 87-0442 Rulings on Petitioner's Proposed Findings of Fact: Adopted in Finding of Fact 1. Adopted in Finding of Fact 2. 3-8 Adopted in Finding of Fact 4. 9 Adopted in Finding of Fact 5. 10-14 Adopted in Finding of Fact 6. 15-16 Adopted in Finding of Fact 7. COPIES FURNISHED: W. Douglas Beason, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, FL 32399-0750 Emanuel Mosley 5707 5th Street East Bradenton, FL 33507 Fred Seely Executive Director Construction Industry Licensing Board Post Office Box 2 Jacksonville, FL 32201 Van Poole, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, FL 32399-0750 Joseph A. Sole General Counsel Department of Professional Regulation 130 North Monroe Street Tallahassee, FL 32399-0750
The Issue The central issue in this case is whether Respondent is guilty of the violations alleged in the amended administrative complaints.
Findings Of Fact Based upon the testimony of the witnesses and the documentary evidence received at the hearing, I make the following findings of fact: At all times material to the allegations, Respondent, Ruth Ogen, was a licensed roofing contractor, license no. CC CO27471. A. R. Ogen Construction, Inc. was qualified by the Department as a roofing contractor. Respondent is the sole qualifier and licensee associated with the company, A. R. Ogen Construction, Inc. Respondent is married to Avraham Ogen who presents himself as the president of A. R. Ogen Construction, Inc. On or about November 9, 1986, A. R. Ogen Construction, Inc. doing business as Ogen Roofing & Waterproofing entered into a contract with Ardee Yuran to replace the entire roof of a commercial structure located at 14951 N.E. 6th Avenue, North Miami Beach (6th Avenue). The contract provided, among other things, that the top row of tiles around the parapet wall would be removed and reinstalled upon completion of the roof. In negotiating the contract described in paragraph 4, Mrs. Yuran was mindful of the work Avraham Ogen had performed at her residence. Mr. Ogen had supervised the reroofing of Mrs. Yuran's residence which had been satisfactorily performed. The residential job had required the removal of the tiles along the parapet wall and Mrs. Yuran expected the same process would be utilized in completing the commercial roof. The purpose intended to be accomplished by removing the tiles was to allow the roofers to extend the roofing materials up the sides of the parapet and over the crest. The roofing material is then sealed to the wall and the tiles replaced. This procedure results in a waterproof barrier so that when rain accumulates on the flat roof (and the water level rises) it cannot seep through the sealed perimeter. During the time Mr. Ogen was negotiating and performing the roof work for the 6th Avenue building, he was also retained to paint the structure (which was to be completed after the roof was finished). There came a time when Mrs. Yuran and Mr. Ogen disagreed regarding aspects of the roof work and the painting that was to be done. Eventually, the parties reached an impasse where neither was willing to concede: Mr. Ogen was not willing to perform the work as specified by Mrs. Yuran, Mrs. Yuran was not willing to pay Mr. Ogen any more on the contracts. At this point, Ruth Ogen, Respondent, had not been involved in the daily work progress made at the site. To make matters worse, a leak developed at the 6th Avenue property which resulted in a waterfall pouring down through the overhang of the building. As a result of the disagreement, both parties retained lawyers and, understandably, the issues escalated. Mrs. Yuran retained three individuals to review the work performed by Mr. Ogen. On March 4, 1987, Walter H. Scott, Scott Roofing & Repair, Inc., determined that water accumulating on the 6th Avenue roof was draining behind flashing which had not been properly sealed to the perimeter walls instead of running through the outlets. Mr. Scott recommended that the flashing be resealed along the wall. Had the tiles been removed and the work been performed as stated in the contract, the leak would have been avoided. A second licensed roofing contractor, Gary Carruth, Falcon Roofing Co., inspected the property on June 23, 1987, and recommended reflashing the walls along the perimeter of the 6th Avenue building. Mr. Carruth observed that the tiles had not been removed along the wall and that the roofing materials had not been properly sealed along the perimeter. James Rodgers, a consulting engineer performed a third inspection of the roof at 6th Avenue on June 25, 1987. According to Mr. Rodgers, several items of the contract work completed by Mr. Ogen were inadequately performed. Mr. Rodgers found that the pitch pans were not installed properly around the air conditioning units and that the flashing along the parapet wall was not properly completed nor performed as described in the contract. Respondent also retained a licensed roofer to review the work at 6th Avenue. Bill Mathews, Bill Mathews Roofing, completed a roof inspection report on November 21, 1988. According to Mr. Mathews, the flashing along the parapet wall required repair because it had been improperly sealed. Mr. Mathews noted that the top row of tile should have been removed so that flashing could have been taken up and over the parapet wall. Mr. Mathews also noted that the flat roof had buckles or "fish mouths" which should have been corrected as the roof was being installed. Mr. Mathews recommended that the flashing be resealed and that the buckles be cut and sealed with membrane and roofing cement. Finally, Mr. Mathews determined that the pitch pans under the air conditioning units should be filled with an asphalt cold process to prevent further cracking and potential leaks. A final inspection report was completed by Robert B. Hilson, Bob Hilson & Company, Inc., on August 18, 1988. Mr. Hilson is a consultant for the Department and made the inspection at the request of its attorney. Mr. Hilson's findings and recommendations mirrored those suggested by Mr. Mathews. The work performed by Mr. Ogen on the 6th Avenue property did not meet the terms of the contract and did not meet performance standards acceptable in the roofing industry. Mr. Ogen failed to properly seal all flashing materials along the parapet wall, failed to correct the buckles or "fish mouths," and failed to meet the contractual obligations (removing the tiles and extending the flashing over the crest). Because of the substandard work, Mrs. Yuran incurred additional expenses and inconvenience. Respondent did not view the 6th Avenue structure either before or during the time that her husband supervised the work performed. Respondent's role with the company was as secretary, bookkeeper, and office manager. Mr. Ogen supervised or performed all work at the 6th Avenue job. Respondent did not supervise Mr. Ogen or the workers under his supervision. "Ogen Roofing & Waterproofing" has not been qualified by the Department as a roofing contractor. On or about April 28, 1987, A. R. Ogen Construction, Inc. was requested to perform a roofing inspection at 1180 N.E. 204 Terrace. The subject property was under contract for sale and was ultimately purchased by Rose Zenar. According to the inspection report filed by Mr. Ogen, the roof and roof covering were in satisfactory condition with no evidence of leaks. Mr. Ogen signed the inspection report as president of A. R. Ogen Construction, Inc., state license no. CC CO27471. During the first rain after she had moved into the house, Mrs. Zenar observed water leaking through the ceiling into the kitchen. She immediately called Mr. Ogen who came out, observed the problem, but did not repair the leak. Mr. Ogen did not return Mrs. Zenar's subsequent calls. Ultimately, she contacted James Rodgers to perform a second roof inspection. As a result of Mr. Rodgers' inspection, Mrs. Zenar discovered that the leak was of long duration as it had completely rotted and decayed the roof rafters and sheathing in the area of the leak. Mr. Rodgers took pictures of the area which clearly showed the discolored wood. Evidence of the discoloration was visible from the attic entrance located in the garage adjacent to the kitchen. Mr. Ogen's failure to discover the rotted roof was due to an inadequate inspection of the crawl space between the ceiling and the roof rafters. It is the normal practice of qualified roof inspectors to examine the crawl space between the ceiling and roof supports. Respondent did not perform the roof inspection at Mrs. Zenar's home, did not supervise the inspection performed by Mr. Ogen, and did not have a checklist of items to be reviewed by him in making the inspection. The erroneous inspection performed by Mr. Ogen resulted in expenses and inconvenience to Mrs. Zenar.
Recommendation Based on the foregoing, it is RECOMMENDED: That the Department of Professional Regulation, Construction Industry Licensing Board, enter a final order finding the Respondent guilty of the violations set forth above and, based upon the penalties recommended by rule, impose an administrative fine against the Respondent in the amount of $3000.00 DONE and RECOMMENDED this 20th day of April, 1989, in Tallahassee, Leon County, Florida. JOYOUS D. PARRISH Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 20th day of April , 1989. APPENDIX RULINGS ON PETITIONER'S PROPOSED FINDINGS OF FACT: Paragraphs 1 through 7 are accepted. With the correction to reflect Mrs. Yuran not Mr. Yuran, paragraph 8 is accepted. Paragraphs 9 through 12 are accepted. Paragraph 13 is accepted. Paragraph 14 is accepted with the correction that the witness' name was Gary Carruth. With the deletion of the last paragraph of paragraph 15 which is rejected as argument or comment, the first five paragraphs of paragraph 15 are accepted. Petitioner is warned not to subparagraph statements of fact or to restate testimony, but to simply set forth the fact deduced from such testimony. Paragraph 16 is rejected as irrelevant or immaterial. Paragraph 17 is accepted to the extent that it finds the reroofing work performed on the 6th Avenue building was a poor quality which was not done under the supervision of a qualified, licensed roofing contractor. Further, it was gross negligence not to properly supervise the job. No conclusion is reached as to whether Respondent is able to supervise a job. Paragraph 18 is accepted. Paragraph 19 is rejected as a recitation of testimony. Paragraphs 20 through 24 are accepted. Paragraphs 25 through 31 are accepted. Paragraph 32 is accepted. Paragraph 33--none submitted. With regard to paragraph 34, the first sentence is accepted. The remainder is rejected as conclusion of law, argument, or comment. Paragraph 35 is rejected as irrelevant. Paragraphs 36-38 are accepted. Paragraph 39 is rejected as comment, irrelevant, or recitation. The first two sentences of paragraph 40 are accepted, the remainder is rejected as comment, conclusion of law, or argument. Paragraph 41 is rejected as irrelevant, conclusion of law, or argument. RULINGS ON RESPONDENT'S PROPOSED FINDINGS OF FACT: Paragraph 1 is accepted. Paragraph 2 is accepted but is irrelevant. Paragraph 3 is accepted. Paragraph 4 is rejected as irrelevant to the issue of whether a competent inspection was performed. Paragraph 5 is accepted. Paragraph 6 is rejected as irrelevant to the issue of whether a competent inspection was performed. Paragraph 7 is rejected as irrelevant or unsupported by the record. Paragraph 8 is accepted. Paragraph 9 is accepted. Paragraph 10 is rejected as contrary to the weight of the credible evidence presented. Paragraph 11 is rejected as argument, speculation, or unsupported by the record. Paragraph 12 is rejected as irrelevant. Paragraph 13 is rejected as argument, irrelevant, or unsupported by the weight of credible evidence. Paragraph 14 is rejected as argument, irrelevant, or comment. Paragraph 15 is accepted but is irrelevant. Paragraph 16 is rejected as argument. Paragraph 17 is accepted but is irrelevant. Paragraph 18 is rejected as irrelevant, argument, or unsupported by this record. Paragraph 19 is rejected as irrelevant. The following are rulings on case no. 88-1776 as submitted by Respondent: Paragraph 1 is accepted. Paragraph 2 is rejected as unsupported by the record. Paragraph 3 is rejected as irrelevant. Paragraph 4 is accepted but is irrelevant, immaterial. Paragraph 5 is rejected as unsupported by the record. Paragraph 6 is rejected as irrelevant, immaterial, or unnecessary. Paragraph 7 is rejected as unsupported by the weight of credible evidence. Paragraph 8 is rejected as irrelevant, immaterial, or unnecessary. Paragraph 9 is accepted but is irrelevant. Paragraph 10 is rejected as irrelevant, immaterial or unnecessary. Paragraph 11 is rejected as irrelevant, immaterial or unnecessary. Paragraph 12 is rejected as irrelevant. Paragraph 13 is rejected as argument or unsupported by the weight of the credible evidence. Paragraph 14 is rejected as contrary to the weight of the credible evidence. Paragraph 15 is accepted but is irrelevant. COPIES FURNISHED: Fred Seely Executive Director Construction Industry Licensing Board Department of Professional Regulation Post Office Box 2 Jacksonville, Florida 32201 Bruce D. Lamb General Counsel Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 Elizabeth R. Alsobrook Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750
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
