The Issue At issue is whether Respondent committed the offense set forth in the Administrative Complaint dated June 8, 2000, and if so, what penalty should be imposed.
Findings Of Fact Petitioner is the state agency responsible for regulating the practice of contracting in the State of Florida. Respondent is licensed as a contractor in the state, pursuant to license number CC C052471. Respondent was the qualifying agent of Johnston Roofing from October 2, 1991 to January 2, 1997. Thereafter, the Respondent was the qualifying agent of United Roofing. As the qualifying agent, Respondent was responsible for all of the contracting activities of Johnston Roofing and United Roofing, respectively, in accordance with Section 489.1195, Florida Statutes. On or about December 6, 1994, Sharon and Calvin Thayer (the Thayers) entered into a written contract with Respondent to replace the roof on the Thayer residence located at 1424 Sailboat Circle, in Wellington, Florida. The total price for work contemplated in the contract was $9,825.00. The Thayers paid this bill in full. Following the execution of the contract, Respondent replaced the existing cedar shake roof with three-dimensional fiberglass shingles. In addition, Respondent replaced the skylight and installed a ridge vent. The contract provided a five-year warranty for workmanship and materials. In September 1997, within the warranty period, a piece of the bedroom popcorn ceiling, approximately one square foot in size, fell down. The shingle was damp and water stained. The Thayers notified Respondent, via telephone, of the problem and invoked their rights under the warranty. A woman who identified herself as "Johnnie" and claimed to be acting on behalf of Respondent received the Thayers' complaint. Pursuant to her instructions, the Thayers faxed Respondent a copy of the contract, including the warranty. The Thayers made several more phone calls to Respondent's office before receiving a substantive response to their complaint. It was not until January 1998 that Respondent sent an employee to assess the problem. Respondent's employee acknowledged that there was a leak and stated that it was caused by a pinhole around the skylight area. He promised to return with the materials necessary to make the repair. Despite this promise, Respondent neither returned to make repairs nor contacted the Thayers to explain why. The Thayers resumed making phone calls to Johnnie. After several unsuccessful attempts to get an explanation, Johnnie informed the Thayers that the skylight was not covered in the warranty. Sometime in early 1998, the Thayers made a second separate warranty claim. This problem related to water leakage in the chimney area of the living room. Telephone calls to Respondent's place of business were all answered by Johnnie, who promised to pass the messages along. Respondent took no action until December 1, 1998, when he sent another inspector to the Thayer residence. Respondent's inspector stated that fixing the problem would entail re-doing the entire living room and dining room portions of the roof, as well as the skylight, or approximately one-third of the roof. He made a stop-gap repair, advising the Thayers that this would not be a long-term solution. He also expressed the view that Respondent would not favorably receive his suggestion to undertake substantial repairs to the roof. Respondent had no further direct or indirect communication with the Thayers and at no time took any affirmative step to honor the warranty. The leaks were solely the result of Respondent's failure to properly perform the installation of the Thayers' roof in accordance with industry standards and manufacturers' specifications for the materials utilized. More specifically, Respondent installed the roof improperly at the so-called cricket areas; in addition, the flashings, which were to have been replaced pursuant to the contract, had not been replaced. It would be possible to repair the roof to the extent that it would no longer leak; however, it would be impossible to match new shingles to the exact color of the existing shingles, due to normal discoloration which occurs as part of the aging/weathering process. The Thayers are thus faced with a Hobson's choice: accepting a patchwork quilt effect, which reduces aesthetic and resale value, or replacing the entire roof at considerably more cost. Respondent's performance deficiencies were within the scope of warranty. The Thayers fully honored their obligations under the contract and were likewise entitled to have the warranty honored. In June 1999, Respondent was placed on probation in connection with significant violations of the Florida Statutes regulating the construction business. In a hearing not involving disputed issues of material fact conducted by Petitioner, it was determined that Respondent had violated various provisions of Section 489.129(1), Florida Statutes, each of which had resulted in injury to his roofing customers. As penalties for these previous violations, an administrative fine of $12,375.00 had been imposed upon Respondent. In addition, Respondent was assessed costs of $5,848.03; placed on probation for seven years; and ordered to pay a total of $43,455.66 in restitution to 14 customers. The Petitioner’s costs of investigation and prosecution in this case as of May 18, 2001, excluding costs associated with an attorney’s time, totaled $308.36.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner enter a final order finding Respondent guilty of violating Section 489.129(1)(n), Florida Statutes; revoking Respondent's license; imposing an administrative fine in the amount of $2,000.00; requiring Respondent to pay restitution to the Thayers in the amount of $9,825.00; and requiring Respondent to pay costs of Petitioner's investigation in the amount of $308.36. DONE AND ENTERED this 27th day of August, 2001, in Tallahassee, Leon County, Florida. FLORENCE SNYDER RIVAS 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 27th day of August, 2001.
The Issue Whether or not Respondent engaged in gross negligence, incompetence, misconduct, and/or deceit in connection with the installation of a roof on a customer's home, either personally or by his failure to properly supervise the construction project and, if so, what, if any, administrative penalty should be imposed.
Findings Of Fact Petitioner, Construction Industry Licensing Board, is the state agency charged with the responsibility to regulate construction activities in Florida to include prosecuting administrative complaints filed pursuant to Chapters 489, 455 and 120, Florida Statutes, and the rules and regulations promulgated pursuant thereto. During times material hereto, Respondent, Norman Levinski, was licensed as a registered roofing contractor in the State of Florida, having been issued license number RC 0047656. At all times material hereto, Respondent was the licensed qualifying agent for All Bay Enterprises, Inc. On September 17, 1987, Respondent through the entity All Bay Enterprises, contracted with Opie and Elizabeth Tittle to remove and replace a built-up roofing system and shingle roof on the Tittle's residence located at 810 Audubon Drive, Clearwater, Florida. Respondent was paid the total contract price of $3280.00. Respondent completed the above roofing work on September 22, 1987. During the course of the work and after its completion, the Tittles continually expressed concern that the job was being done improperly and that they were not satisfied. Respondent made one attempt to correct the problems without success. Respondent dispatched a crew to the Tittle's home to try to remediate some problems on the roof; however, their efforts were unsatisfactory. Jack Hurlston, an expert in roofing, was retained by Petitioner to render an opinion on March 22, 1989. Hurlston visited the Tittle home and found numerous deficiencies in the roof. Specifically, Respondent failed to erect the Tittles' roof in conformity with the minimum standards of the Southern Building Code and usual industry standards in that there was insufficient lap at the joints in the eave drip, the starter course was nailed too high above the eave, shingles did not lay flat due to the use of improper asphalt, underlying felt was wrinkled and "telegraphed" through shingles, shingles were improperly nailed and three nails were used in each shingle as opposed to the customary four, as required by the manufacturer. No base flashing was used where shingles abutted, no plastic roof cement was placed around the electric riser to form a seal, the valley metal was cut too short and nailed too far from the center, the roof edges on the gable ends were nailed too far from the edge, exposed nails and cutout areas were observed. In the built-up roof, the aluminum coating was applied too soon after the base roof was installed and was therefore insufficient to provide either weather protection or heat reflection. W.L. Albritton, who was received as an expert in roofing, was retained by the Tittles to inspect the roofing job completed by Respondent. Albritton's inspection revealed the following deficiencies: Starter course shingles were uneven, in that they were nailed from 1 3/4" to 3" inches to the edge of the eave drip. Additionally, some nails in the starter course were found at the cutout (water course) of the first weather course of shingles at the eave. Discoloration was noted along the top edge of the fascia, but below the bottom of the drip edge, suggesting that a 1" x 2" wood drip strip was removed by Respondent and was not replaced. The metal drip edges were nailed at approximately 18" on center and 8" to 10" nail spacing is usual and customary in the roofing industry. The horizontal alignment of the shingles was uneven. The shingle roof was not installed according to the manufacturer's specifications and therefore did not conform with the Southern Standard Building Code. The specific deviations from the manufacturer's specifications are as follows: The manufacturer requires that two layers of number 15 asphalt saturated felt be installed in shingle fashion on roofs below 4:12, such as the Tittle's roof. Respondent here installed one layer of number 30 felt on the Tittle's roof. Next, the manufacturer requires the drip edge metal to be installed under the felt at the eaves of the roof or if installed on top of the felt at the eaves, that roof cement and felt stripping be applied over the roof end of the drip edge metal. Respondent installed the drip edge on the top of the felt at the eaves and did not strip, the roof over the roof end. The manufacturer recommends nail spacing of 8" to 10" for anchoring drip edge metal, whereas Respondent anchored the drip edge metal at 18" on center. The Standard Building Code requires an end overlap of 1 1/2" on metal edge flashing, whereas Respondent overlapped the end joist 1/2" at most end joints. The manufacturer specifies that close cut valleys should be nailed no closer than 6" to the center life of the valley and that the cut side shall be trimmed a minimum of 2" above valley center lines, whereas Respondent nailed to within 4" of the valley center line and the cut shingle edge was made at the valley's center line. The manufacturer requires four nails in each shingle, whereas Respondent nailed some shingles with only three nails and placed nails too close to water cutouts and placed some nails as high as seven inches above the bottom edge of the shingle. Next, the manufacturer requires that sufficient shingles be installed at pipe penetrations so that it will be necessary to cut a hole in one shingle to fit over or around the pipe before installing the pipe flashing, whereas Respondent failed to install sufficient shingles before installing the pipe flashings, and the flashings, as installed, are more susceptible to water leakage. Respondent slit the face of the metal drip edge and failed to provide backup protection for the fascia creating a situation that will promote rotting of the fascia. Respondent installed the shingles over wrinkled felt, underlayment and the wrinkles in the underlayment are "broadcasting" through the shingles, which creates a rough appearance to the entire roof and cannot be corrected without complete removal of the roof. The ply sheets on the flat roof specified by Respondent was to be of a 3-ply application, whereas it measures between 11" and 12" between edges of the sheets. Respondent therefore did not apply a full three plies on the flat roof. The Standard Building Code requires 1 1/2" overlap on edge joints of drip metal, whereas Respondent installed the drip edge metal with overlap and joints ranging from 3/4" to 3 1/4". Respondent failed to provide sufficient felt stripping over the roof flange of the metal drip edge at the rake edge of the flat roof. Respondent did not install the ply sheets using full moppings of asphalt and pi' is occurring at the edges of the ply sheets. Respondent installed shingles too low onto the flat roof, did not use a starter course of shingles, the felt underlayment is exposed between the cutouts and solar radiation is likely to degrade the felt underlayment. Additionally, the roof will be prone to leakage at such locations. Respondent failed to install flashing where required, used old flashing when new flashing was promised and failed to close openings that would allow wind-driven water to leak into the interior of the Tittles residence and/or the roof.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that: 1. Petitioner, Department of Professional Regulation, Construction Industry Licensing Board, enter a Final Order imposing an administrative fine against Respondent in the amount of $500.00 and suspending his license for a period of six (6) months. 1/ DONE and ENTERED this 15th day of February, 1990, in Tallahassee, Leon County, Florida. JAMES E. BRADWELL 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 15th day of February, 1990.
The Issue The issues in this case are whether the Respondent, Brian D. Legate, should be disciplined on the charges in the Administrative Complaint, PCCLB Complaint No. C98-556. Specifically, the Administrative Complaint charged violations of Section 24(2)(d), (j), (m), and (n) of Chapter 75-489, Laws of Florida (1975), as amended, by: Count I - failure to obtain a building permit before beginning roofing work, contrary to the requirements of Section 104 of the Standard Building Code; Count II - covering rotted roof framing and building a roof that leaked, contrary to the requirements of Section 1509.1.2.1 of the Standard Building Code; and Count III - committing gross negligence, incompetence, or misconduct in the practice of contracting.
Findings Of Fact The Respondent, Brian D. Legate, is a licensed roofing contractor. He holds license C-4676 (RC0061241). On approximately March 16, 1998, Mr. and Mrs. Richard Shutt requested an estimate from Legate for the repair of a leaking roof at their house at 7127 Third Avenue South, St. Petersburg, Florida. The leaking portion of the roof was a flat, built-up roof that was over the single-story living room of the house and adjacent to a second story bedroom; the other three sides of the perimeter of the leaking roof consisted of capped parapet walls. The roof and tile covered the flat portion of the roof and extended approximately ten inches up the inside of the parapet walls. The Shutts did not testify. Legate testified that the Shutts could not afford to completely rebuild and seal the parapets, re-roof, and re-tile. Instead, the Shutts wanted Legate to tear off the old roof down to the wood decking and re- roof to try to stop the roof leak; the Shutts planned to have someone else rebuild and seal the parapets and finish the roof with new tiles in about six months. Legate recognized that the Shutts' plan was not ideal; it would be difficult to maintain a watertight roof system until the parapets were rebuilt and sealed and the tiles replaced. Under the Shutts' plan, Legate would have to tack the new roof to the lower part of the parapet walls as best he could and tuck the upper edge of the new roof under the drip edge on the parapet wall to secure it temporarily until the parapet walls were rebuilt and sealed and the new tile installed. But Legate agreed to cooperate with the Shutts and give them an estimate for the work requested. Legate also recognized that it would have been best to install new flashing between the new roof and the parapet walls above the roof. The old metalwork serving as flashing on the existing roof system actually was a metal roof drip edge that was being misused as flashing. Legate recommended new flashing, but the Shutts declined because it would cost an additional $1,500 that they could not afford. On or about March 16, 1998, Legate gave the Shutts an estimate, without any new metalwork, for $4,000, plus $950 for new roof drains. Legate planned to install the roof drain bowls somewhat higher than the top of the new roof so that they would be flush with the ceramic tile when eventually installed over his roof. The Shutts accepted Legate's estimate for the roof work, a contract was signed, and the Shutts paid an inital $1,200 installment on March 19, 1998. Legate began work on the Shutts' roof approximately two weeks later. Legate also has a general contractor license, and he also made a proposal to repair wood and plaster inside the Shutts' house that had been damaged over the years by water leaking from the roof above. The Shutts could not afford this proposal and declined. Legate purposely delayed obtaining a building permit to give the Shutts more time to have the parapet walls rebuilt and the new tile installed under the six-month life of the building permit. As Legate's work proceeding, the Shutts paid an additional $1,200 on April 9, 1998, and another $2,000 on May 4, 1998. At approximately the time Legate invoiced the Shutts for the balance due under their contract, a dispute arose regarding the appearance of the roof drain bowls Legate installed. Legate agreed to remove the offending drain bowl, and order and install a type more to the Shutts' liking. On or about June 2, 1998, Legate applied for a building permit. He also requested that they file the notice of commencement so that he could call for a building inspection. At some point (the evidence is not clear when), Legate also wrote the Shutts by certified mail and enclosed a completed notice of commencement for them to sign and file. By letter dated June 5, 1998, an attorney representing the Shutts demanded that Legate not contact the Shutts again and not do any further work on their property because the work done was "inferior and was not of the type desired." Legate complied with the attorney's demand. He did not know exactly what the problem was but assumed it had something to do with the drain bowls. The Shutts did not file a notice of commencement until approximately June 24, 1998. On or about July 6, 1998, someone other than Legate (the evidence was not clear who, but probably the Shutts or their attorney) called for a building inspection of Legate's work. Legate did not know either that the notice of commencement had been filed or that someone had called for an inspection. For that reason, and also because he had been ordered off the job, Legate was not there on July 7, 1998, when a building inspector from the City of St. Petersburg inspected the roof. The Shutts invited the inspector inside the house where he inspected interior water damage and was able to inspect water- damaged wood laths (used to secure ceiling plaster), roof joists and framing beneath one of the roof drains from the underside. The inspector found the roof to be leaking and covering rotted roof framing. He was concerned that it might be dangerous to attempt to place the additional weight of ceramic tile over the roof, especially for the intended use as additional living space (an outdoor, second-story patio.) The inspector determined that it would be necessary to have an on-site inspection with the contractor and a copy of the roofing manufacturer's specifications for the type of roof system applied before final inspection. The building inspector did not contact Legate directly to inform him of the need for an on-site inspection; instead, he left a notice on the building permit at the premises. The inspector was unaware that Legate had been ordered off the premises and would not see the notice. Legate was not aware that an inspection had taken place and did not contact the building inspector. Not having heard from Legate, the building inspector returned to the premises on July 13, 1998, for final inspection without Legate. He saw essentially the same conditions as before and disapproved the work. Legate also was unaware of this second inspection. He never inquired with the City building department as to whether a notice of commencement had been filed or whether the roof had been inspected. On September 15, 1998, the Shutts had the roof inspected by an independent roofing consultant. The independent inspection confirmed the building inspector's findings and added that damage caused by the roof leaks in the meantime had caused additional damage to the roof itself, as well as to the roof substrate (decking) and framing, to the point that it could have been dangerous to attempt to place the additional weight of ceramic tile over the roof, especially for the intended use as an outdoor, second-story patio. The independent roof consultant testified that water was leaking where the metal drip edge had pulled away from the parapets, and there was a gap between the top of the roof material and parapets. He also testified that the drip edges were old and an improper choice for use as flashing where the roof material met the parapets. However, he could not testify as to when the drip edge pulled away from the parapets and apparently was not aware that, for financial reasons, the Shutts had rejected Legate's recommendation to install new metal flashing. The independent roof consultant testified that water also was leaking at the roof drain bowls because they were set too high, causing improper ponding on the roof in the vicinity of the drain bowls. He also testified that, even if the ceramic tile had been installed promptly after Legate's work, the roof drain bowls still should have been flush to the waterproof roofing material, not to the ceramic tile going in over it. However, Legate and his foreman testified that Legate's plan was acceptable and would have made the finished roof watertight. The evidence was not sufficient to prove Legate incorrect. Legate and his workers replaced some rotted roof decking before replacing the roof. They testified that they did not see any more rotted roof framing or joists. While some additional water damage inside the house was evident on September 15, 1998, including rotted ceiling wood lath and joists, it was not clear from the evidence how much was visible or evident to Legate and his workers from their vantage point working on the roof. It is clear, however, that Legate gave the Shutts an estimate for the repair of interior damage, to the extent visible, and that the Shutts declined the repairs for financial reasons. There was no evidence that the Shutts ever complained to Legate that the new roof was leaking. The last Legate heard from the Shutts was their attorney's letter demanding that he not contact the Shutts and not do any more work on the roof. Legate also was unaware of the building inspections and the independent inspection. Legate testified without contradiction that, if he had been aware of the leaks or had been asked, he certainly would have returned to stop the leaks, at least by temporary means, until the additional work contemplated by the Shutts could be done. Section 104.1.1 of the Standard Building Code (1997) requires a contractor to obtain the required building permit before beginning work. There was testimony that the City of St. Petersburg allows builders to "call in" an application for a building permit (by telephone), begin work, and actually obtain the permit within a day or two. But such a procedure would not allow for a delay of months. Section 1503.1.2.1 of the Standard Building Code (1997) requires that roof coverings "provide weather protection for the building at the roof." (The reference to Section 1509 in the Administrative Complaint apparently was a typographical error.) PCCLB has published "Guidelines for Disciplinary Action," which state that $750 is the "typical" penalty for the first "major" infraction and that $300 is the "typical" penalty for the first "minor" infraction. "Major" and "minor" infractions are not defined. The Guidelines also provide that the PCCLB shall consider aggravating and mitigating factors and may take any of the following actions: (1) suspension for a time certain (with possible permission to complete any uncompleted contracts); (2) revocation; or (3) an administrative fine not to exceed $1,000 per count.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Pinellas County Construction Licensing Board enter a final order finding the Respondent, Brian D. Legate, guilty under Count I, fining him $300 under Count I, and dismissing Counts II and III of the Administrative Complaint. DONE AND ENTERED this 25th day of March, 1999, in Tallahassee, Leon County, Florida. J. LAWRENCE JOHNSTON 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 25th day of March, 1999. COPIES FURNISHED: Williams Owens, Executive Director Pinellas County Construction Licensing Board 11701 Belcher Road, Suite 102 Largo, Florida 33773-5116 Brian Legate 5901 40th Avenue, North St. Petersburg, Florida 33709
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.
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
Findings Of Fact At all times material hereto, Respondent has been licensed by Petitioner as a certified roofing contractor, holding license numbers CC CA23531 and CC C023531. Respondent qualified Sealtite Roofing & Construction, Inc., from December 9, 1982 until June 30, 1985. The owner of Sealtite Roofing was Burton W. Slee. At all times, Slee was the holder of a roof painting license from Palm Beach County, which permitted him to paint roofs, apply waterproofing sealant to roofs, pressure- clean roofs, replace broken tiles, and apply roof coatings. When Respondent became the qualifier for Sealtite, he was not impressed by the concept of waterproofing roofs. He knew, however, that neither the Southern Building Code nor the later Standard Building Code adopted by Palm Beach County made any mention of waterproofing roofs or any requirements for permitting such work or for such work being performed by licensed personnel. He further knew that Slee held a Palm Beach County roof painting license. So there would be no misunderstanding and so that Respondent, Slee, and members of the public dealing with them would be protected, an agreement was entered into between Slee on behalf of Sealtite and Respondent prior to the time that Respondent became the qualifier for Sealtite. Under the terms of the agreement, Respondent would be responsible for the company's traditional roofing activities which would be performed utilizing Respondent's roofing contractor's license, and Slee would be responsible for the company's waterproofing activities, utilizing Slee's county license. Each of the parties to that agreement promised not to utilize each other's licenses, and each agreed to be responsible for "pulling" permits for the work for which each was responsible. Throughout the entire time that Respondent qualified Sealtite, Respondent complied with the terms of his agreement, obtaining permits for all traditional roofing activities, supervising or personally performing such activities, and responding to any required warranty work. During the time that Respondent qualified Sealtite, the permitting requirements of the approximately 27 municipalities within Palm Beach County kept changing. Some of the cities never required permits for waterproofing work, some of them required a county painting permit only, and some of them required a roofing permit. Sometimes the cities that required permits dropped that requirement, and sometimes the ones that did not require permits began to require them. During the time in question Sealtite, through Burton Slee, waterproofed hundreds of roofs. The warranty given to the property owners involved was on behalf of Sealtite, was signed by Slee, and bore Slee's Palm Beach County license number. Neither Respondent nor Respondent's license was mentioned in those warranties. Respondent did not approve any of Sealtite's waterproofing jobs, was not aware of or involved in any of Sealtite's waterproofing jobs, and was never on site at any of those jobs. He received no money from Sealtite's waterproofing activities, but only received money from Sealtite for standard roofing jobs supervised or performed by him. Respondent never knew until Slee told him at the end of 1987 or the beginning of 1988 that there were times when Slee pulled a permit for a waterproofing job using Respondent's name and license number. In 1987 Petitioner filed an Administrative Complaint against the Respondent resulting from one of the waterproofing jobs performed by Sealtite in February of 1985. Petitioner and Respondent entered into a Stipulation of Facts in that case. That Stipulation recited the terms of the agreement between Respondent and Slee and further recited Respondent's belief that that agreement had legally relieved him of any responsibility for Slee's or Sealtite's waterproofing activities and Petitioner's belief that the agreement had no such legal effect. The Stipulation further provided as follows: 7. Petitioner and Respondent agree that there exist numerous other complaints and cases essentially involving the same or similar facts as the instant case and, therefore, acknowledge that the Board's decision herein will impact on the other matters. On October 7, 1987, Petitioner contacted Respondent regarding 29 complaints resulting from Sealtite's waterproofing activities. Only nine of those complaints arose from waterproofing activities performed by Sealtite during the time that Respondent qualified the company. In January 1988 the eight Administrative Complaints involved in this action were issued by Petitioner against Respondent. All eight Administrative Complaints involve Sealtite's waterproofing activities performed in 1983 and 1984. The Stipulation discussed and quoted above was entered into in June 1988, five months after the eight Administrative Complaints involved herein were issued against Respondent. Accordingly, these eight complaints are among those contemplated by the parties when they entered into the above described Stipulation which was subsequently presented to the Construction Industry Licensing Board in conjunction with the single prior case filed against Respondent relating to Sealtite's waterproofing activities. On August 11, 1988, that Stipulation was considered by the Construction Industry Licensing Board. The Final Order entered by the Board on September 29, 1988, approved the factual allegations and conclusions of law contained in the Administrative Complaint filed against Respondent in that case and ordered Respondent to pay a fine of $500 to the Board and to pay $500 as restitution to the property owner involved in that case. Respondent timely made those payments. Respondent was also licensed by Petitioner as a general contractor, license number CG C032811, in 1985, probably after the period during which he qualified Sealtite, but clearly after the activities complained of in these eight consolidated cases, all of which allege waterproofing activities occurring in 1983 and 1984. No evidence was offered to show that any requests for repairs pursuant to the waterproofing guarantee or warranty given by Sealtite were made during the period of time that Respondent was the qualifying agent for Sealtite.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered dismissing with Prejudice the Administrative Complaints filed against Respondent in these consolidated cases. RECOMMENDED this 15th day of March, 1989, in Tallahassee, Leon County, Florida. 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 15th day of March, 1989. COPIES FURNISHED: Michael J. Cohen, Esquire 517 Southwest First Avenue Fort Lauderdale, Florida 33301 Bruce S. Atkins Post Office Box 273932 Boca Raton, Florida 33427 Bruce D. Lamb, Esquire General Counsel Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 Fred Seely, Executive Director Construction Industry Licensing Board Post Office Box 2 Jacksonville, Florida 32202
The Issue Whether disciplinary action should be taken against the Respondent's contractor license number CG C022926, issued by the State of Florida, based upon the violations of Section 489.105(4), 489.113(3), 489.117(2), 489.115(1)(b), 489.119, and 489.129(1)(d), (e), (g), (j) and (m), Florida Statutes (1987), alleged in three administrative complaints filed by the Petitioner.
Findings Of Fact At all times material to this proceeding, the Respondent, Richard Lee Melvin, was a licensed contractor in the State of Florida, having been issued license number CG C022926, by the State of Florida. The Armstrong Job On or about February 26, 1987, Mr. and Mrs. Armstrong entered into a contract with Sunshine State Homes to do certain siding work and roofing work on two mobile homes owned by the Armstrongs located at 4605 and 4607 Orange Drive in Holiday, Florida. The cost of the repairs under the contract was $6,400. Although the Respondent did not sign that contract, his name and license number appeared on it, he applied for and was granted the necessary Pasco County permit for Sunshine State Homes using his licensure. At the time he applied for the permit, the Respondent knew that Sunshine State Homes was not licensed since he was considering qualifying that company. The permit that the Respondent received from Pasco County required, among other things, that all the Respondent's work conform with the requirements of state and county codes and regulations. The Respondent acted in the capacity of a contractor for Sunshine State Homes even though his certificate did not contain the name Sunshine State Homes. After the signing of the contract, work began on both structures. The roof was replaced on the main structure, and the Armstrongs were informed that the Rainbow Roof System contracted for could not be installed. After work began, it rained and because of improper construction techniques, both mobile homes flooded. Representatives of Sunshine State Homes attempted to correct the problems, but when it rained again, there was substantial leaking in both mobile homes. A rug from the main mobile home had to be removed. Another attempt was made to correct the leaks at the rental unit by re-coating the roof with sealant. Again, it rained, and both mobile homes flooded. Both mobile homes had leaks where, prior to construction beginning, they did not have leaks. Insurance covered $1,200 of the damage to the main mobile home. There also was damage that was not covered by insurance. The type of roof put on the main coach resulted in leaks all along the seam between the roof over the main coach and the roof over the addition to the main structure. The water leaked through the walls of the mobile home, causing water damage. On or about April 7, 1987, the roofs supposedly were finished, and the contractor wanted the rest of his money. The Armstrongs refused to give the balance of the money until another heavy rain was experienced. After representatives from Sunshine State Homes made various threats, the owners paid Sunshine State all but $900 of the contract price. The $900 was withheld to cover the water damage sustained as a result of the leaks. The work that was done was required to be inspected by Pasco County. The work had not been inspected because neither the Respondent nor anyone else from Sunshine State had called for inspections. The work that was done deteriorated over the summer months. On October 14, 1987, the homeowners contracted with Holiday Aluminum to replace the two mobile home roofs in accordance with the contract previously entered into between the homeowners and Sunshine State Homes. It cost the homeowners $4,300 to have the two new roofs installed. They have not experienced any problems with the roofs installed by Holiday Aluminum. The work Sunshine State did under the Respondent's licensure was done in a grossly negligent or incompetent manner. The Respondent and Tropical Exteriors The Respondent was contacted by Jeff Gaston, in mid-November, 1986. Gaston wanted the Respondent to qualify Gaston's company, Tropical Exteriors and Services, Inc. The Respondent met with Gaston and Gaston's attorney, and the Respondent understood that it would take time for all of the paperwork to be concluded. Towards the end of March, 1987, the Respondent started having concerns about his business relationship with Gaston and Tropical. However, the Respondent took no action to terminate that relationship or otherwise advise any governmental agencies involved or homeowners that he was not associated with Tropical until May 13, 1987. There was a continuous business relationship between the Respondent and Tropical for the period November, 1986, through May 13, 1987. The Respondent never qualified Tropical. The Respondent knew that Tropical was using his name in connection with its business after November, 1986. He also thought he would be given notice of any contracts Tropical entered into. But Tropical entered into contracts with the Clems and the Warzyboks and began work without telling the Respondent. The homeowners relied on Tropical's representations regarding the Respondent's association with the business. The Clem Job In November, 1986, Mr. and Mrs. Clem knew that they needed a new roof on their residence located 10511 - 53rd Avenue North, St. Petersburg, Florida, because the shingles were curling. However, they did not have any leaks in the roof. In November, 1986, the Clems were contacted by Millie Morris regarding the roof repairs. Morris stated that she worked for Tropical and was representing U.S. Steel. She advised the Clems that she would like to use the Clem home in an advertising campaign. The Clems did not have the cash money to pay for the repairs and needed financing. As part of that financing, Morris stated that she would give the Clems a $300 rebate on contracting resulting from any leads the Clems gave her. The Clems were able to obtain a second mortgage on their home which provided for the financing of the needed improvements. On or about February 9, 1987, the Clems entered into a contract with Tropical. At the time of the signing of the contract, Morris again reaffirmed to the Clems that any leads the Clems gave Morris that resulted in a contract would result in the Clems being paid the sum of $300. The Clems put $1,000 down at the time of signing the contract and were to pay $1,500 during the course of the job and $2,500 on completion of the job. Before entering into the contract, the Clems relied on the information on the contract letterhead which contained the Respondent's name, type of state certificate, license number, number of years of experience and a representation that the Respondent was insured. Additionally, the Clems called the Better Business Bureau and checked on Tropical to see if any complaints had been filed. The contract provided for, among other things, the removal of the old roof, installation of a new roof, the installation of soffit and facia, the installation of doors and windows and a guaranty on all the work. Shortly after the contract was signed and work was started on the roof, the Clems told Morris the people across the street from them needed repairs. Those people signed a contract with Tropical to have their roof replaced. The work was done, but the Clems received nothing for giving Tropical the customer lead. After the work was done, the Clems dealt with Morris and Gaston. Several times after the job was started, the Clems tried to get Gaston on the job site because the roof was leaking, there was no flashing around the drain pipes and vents, the aluminum edging was bent in many places and the siding had fallen on the ground. Several times when a representative of Tropical was on the job site, Mrs. Clem pointed out to them that the aluminum was bent in places, the seams were cut crooked, there were unnecessary splices in the aluminum, there were bad cuts around certain pipes, there was an electric light left hanging, the wrong weather stripping had been installed around the door, other weather stripping was not put up right, the windows were not sealed, the roof leaked, there was unnecessary tar on the shingles and there were aluminum overlaps facing the street, among other things. From that point forward, representatives of Tropical assured the Clems on many occasions that those problems would be corrected by a date certain, but the deadline was missed in every base. During the construction, the Clems agreed to pay Tropical the $1,500 due during the construction and $2,000 of the $2,500 that was due at the end of construction because a representative of Tropical explained to them that the job was near completion, Tropical needed the money to cover expenses and that Tropical would put in a bedroom window in the Clems residence at no charge. After many telephone conversations and on-site inspections by Tropical, all to no avail, Tropical agreed to finish the job if the Clems would pay him the remaining $500 and if the Clems would pay him an additional $150 for the bedroom window Otherwise, Tropical threatened to forfeit the $500 and not complete the job. The Clems agreed because they knew that it would cost them more than $500 to have the job completed by someone else. The job still was not competed, and the complaints were not corrected. The Clems called another siding contractor, who told the Clems that he would charge $750 just to correct the siding problems, that no permits had been pulled for the job and that the Clems should not allow any further work to be done until the permits had been pulled for the siding and the roof. When the building department received the siding contractor's inquiry regarding the permits, it contacted Tropical. The Clems had several conversations with their attorney, who advised the Clems that it would be cheaper to attempt to solve the problem with Tropical than to get a new contractor. Several attempts were made to have Tropical complete the job, but Tropical continuously failed to honor its agreements. The last time anyone from Tropical was on the job site was April 17, 1987. As of the hearing date, the complaints had not been corrected, and the work had not been completed in accordance with the contract. On or about March 13, 1987, the Respondent obtained a building permit from Pinellas County, Florida, for the installation of the aluminum soffit and facia work, only. Later, after the Respondent had terminated his relationship with Tropical, the job was inspected by the Department of Building Inspections of Pinellas County and was cited for violations of the applicable local codes which never were corrected. The work that was done was done in a grossly negligent or incompetent manner. The Warzybok Case On or about January 14, 1987, Mr. and Mrs. Warzybok, entered into a contract with Tropical Exteriors and Services, Inc., for the removal and replacement of the Warzyboks flat roof at their residence located at 6088 - 27th Avenue, St. Petersburg, Florida. Before entering into the contract, the Warzyboks relied on the information on the contract letterhead which contained the Respondent's name, type of state certificate, license number, number of years of experience and the representation that the Respondent was insured. Additionally, the Warzyboks called the Better Business Bureau and checked on Tropical Exteriors and Services, Inc., to see if any complaints had been filed. Before entering into the contract, the Warzyboks' old flat roof was leaking on the outside of an exterior wall but was not leaking inside. Shortly after the contract was signed, Tropical tore off the old roof, mopped one coat of tar over it, and after it started to rain, put some visqueen over the roof and left. Sometime during the following week, representatives of Tropical finished mopping, put some roof paper down and did some other miscellaneous work. Approximately one week later, Warzybok had the tile roof over the main house pressure cleaned (this roof was connected to the flat roof). When the water from the pressure cleaning came off the tile roof onto the flat roof, the water flooded the room underneath the flat roof. The Warzyboks also discovered that there were broken tiles on the roof over the main house. The flat roof was now leaking inside as well as outside. The Warzyboks attempted on numerous occasions to contact Tropical and have Tropical correct the problems and finish the work. Numerous appointments were made to finish the work and correct the problems, most of which were not kept. Whatever work was done by Tropical did not complete the job or correct the problems. At one point, Tropical sent out a new roofer, Bill Vance, who told the Warzyboks that the roof needed to be totally redone. Several months after the job was started, the homeowners called the City to get an inspection and determined that no permit had been obtained for the job. The City of St. Petersburg Building Department went to the Warzybok property and determined that there had been no permit issued and that the persons who were working on the premises were not licensed roofers. The building department placed a stop order on the work and told the Warzyboks that they needed a licensed roofer to complete the job. The job still has not been completed, and the problems have not been corrected. As of the hearing date, the Warzyboks have problem with leaking skylights, skylights covered with tar, a leaking fireplace, plaster being separated from the sheetrock because of water damage, roofing tiles that were not replaced after they were broken by Tropical and tar on the bottom of the roof, among other things. The Warzyboks got an estimate of $275 just to replace one piece of plaster adjacent to the fireplace only. Tropical started the roof as a three-ply roof and then changed the roof to a one-ply roof. There has been leaking at the chimney and at the skylights, which were not properly installed Some of the tile removed from the main roof at the point of tie-in with the flat roof has not been replaced properly and, in some places, has not been replaced at all. The Respondent, under whose license the work was done, did not know of, and did not properly supervise, the installation of the roof. The roof was installed in an incompetent manner.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Construction Industry Licensing Board find the Respondent guilty of violating Section 489.105(4), 489.119, and 489.129(1)(d), (e), (g), (j) and (m) , Florida Statutes, and that, as punishment, impose on the Respondent a fine of $5000, suspend the Respondent's license for three years and place the Respondent on probation for one year after termination of the suspension conditioned on completion of continuing education designated by the Board and on such other terms that the Board deems appropriate. DONE and ENTERED this 20th day of April, 1989 in Tallahassee, Leon County, Florida. J. LAWRENCE JOHNSTON Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 20th day of April, 1989. APPENDIX TO RECOMMENDED ORDER CASE NOS. 88-5197, 88-5198 and 88-5199 To comply with Section 120.59(2), Florida Statutes (1987), the following rulings are made on the parties' proposed findings of fact: Petitioner's Proposed Findings of Fact. 1.-4. Accepted and incorporated. Sixth sentence, rejected because it was additional sealant, not fiberglass, that was put on the rental unit. Otherwise, accepted and incorporated. Accepted and incorporated. Proposed findings regarding the "high ridge" rejected as not supported by the evidence but otherwise accepted and incorporated. Rejected that the owners held back $1,400 (they held back $900) but otherwise accepted and incorporated. Proposed findings regarding the owners' telephone calls to the inspection department and the inspection results rejected as not supported by the evidence. First and penultimate sentences, accepted and incorporated. 10.-11. Accepted and incorporated. 12. Subordinate and unnecessary. 13.-28. Accepted and incorporated. 29. Accepted but subordinate and unnecessary. 30.-33. Accepted and incorporated. 34. Proposed findings that the permit was pulled after the work for purposes of correcting the work rejected as not proven by the evidence. Otherwise, accepted and incorporated. 35.-45. Accepted and incorporated. The estimate was for plaster, not "plastic." Otherwise, accepted and incorporated. Accepted and incorporated. Second sentence, rejected as not supported by the evidence. Otherwise, accepted and incorporated. Accepted and incorporated. Respondent's Proposed Findings of Fact. (These rulings relate to the unnumbered paragraphs in the Respondent's March 23, 1989, letter, starting with the third paragraph. They are assigned consecutive paragraph numbers for purposes of these rulings.) Accepted and incorporated. First sentence, accepted and incorporated; second sentence, rejected as contrary to facts found. Accepted but subordinate to facts found and unnecessary. First and last sentences, accepted and incorporated. Second and third sentences, rejected as contrary to facts found. First sentence, accepted and incorporated. Second sentence, rejected as unclear. Accepted. First sentence, incorporated; second sentence unnecessary. First and third sentences, rejected as contrary to the weight of the evidence; second sentence, accepted but unnecessary. First sentence, accepted and incorporated (although the unlicensed companies using the Respondent's name also did work and assumed responsibility for the jobs over which the Respondent exercised no control at all.) Second sentence, rejected as contrary to facts found. COPIES FURNISHED: Jack M. Larkin, Esquire 806 Jackson Street Tampa, Florida 33602 Richard Lee Melvin 12737 North Florida Avenue Tampa, Florida 33612 Fred Seely, Executive Director Florida Construction Industry Licensing Board 111 East Coastline Drive, Suite 504 Jacksonville, Florida 32202 Kenneth E. Easley, Esquire General Counsel Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750
The Issue Petitioner, the state agency charged with regulating the practice of contracting pursuant to Section 20.30 and Chapters 455 and 489, Florida Statutes, filed an administrative complaint dated May 20, 1986. Thereby, it has charged Respondent with violations of Sections 489.119, 489.129(1)(g), (j), and Florida Statutes, for which violations it seeks to impose, according to its post-hearing proposal, the requirement of $5600 restitution to Mr. Kenneth Jessell, a fine of $1500, and a one year suspension of Respondent's contractor's license. BACKGROUND AND PROCEDURE The parties' Joint Prehearing Statement was admitted as Hearing Officer Exhibit 1. Petitioner presented the oral testimony of Kenneth A. Jessell, Richard P. Scanlon, Gene O. Seymour, and Robert D. Hilson, and had admitted Petitioner's Exhibits 1, 2, 4, 5 and 6. Exhibit P-3 was marked for identification and proffered but not admitted. Respondent presented the oral testimony of Sheldon Israel and Respondent and had admitted Respondent's Exhibits 1, 2, and 4. Exhibit R-3 was marked for identification and proffered but was not admitted. At the close of hearing, Respondent moved for dismissal for failure of Petitioner to establish a prima facie case. That motion was taken under advisement and is addressed in the following conclusions of law. Upon the filing of a copy thereof as a post-hearing exhibit, judicial notice was taken of Section 3401.1(a)(3) South Florida Building Code, without objection. Petitioner filed transcript herein, and the parties' timely filed their respective post-hearing proposals within the time extensions agreed-upon and granted. The parties' respective proposed findings of fact are ruled upon pursuant to Section 120.59(2), Florida Statutes, in the appendix to this recommended order.
Findings Of Fact Respondent is, and has been at all times material hereto, a certified roofing contractor, license number CCC02955I, whose address of record is 2311 N. E. 35th Street, Lighthouse Point, Florida 33064. On or about June 6, 1985, Respondent, doing business as Great Southern Industries, contracted with Mr. Kenneth Jessell to install a roof on Jessell's house at Lighthouse Point, Florida. The contract price was $5,600. At no time relevant to the charges herein did Respondent or anyone else qualify Great Southern Industries nor did that name appear on Respondent's license. At hearing, Respondent admitted a violation of Section 489.129(1)(g), Florida Statutes, by acting in the capacity of a contractor under a name other than that appearing on his state certificate, and further admitted violation of Sections 489.129(1)(j) and 489.119, Florida Statutes, by failing to qualify a legal entity through which he was contracting. The parties stipulated those allegations of the complaint were to be considered proven. In mitigation, Respondent established that no fraud or deceit concerning who was actually performing the roofing work was perpetrated against Mr. Jessell, that Respondent's omissions were due to his misunderstanding of the legal requirements involved, and that at all times since its incorporation, August 31, 1984, Respondent has been sole shareholder, officer, and director of Great Southern Industries, Inc., a Florida corporation. Upon being made aware of his violations, he has ceased to do business as Great Southern Industries. There is no evidence of prior misconduct. Respondent, as Great Southern Industries, partially completed work on Jessell's house and Jessell partially paid for said work when a dispute arose between Respondent and Jessell relative to the work. Respondent began work on Jessell's roof on June 17, 1985. On June 18, 1985, a pitch fire broke out. The pitch fire resulted from a tar kettle which had not been appropriately handled by an employee of Respondent who had been assigned to tend it. Such fires are not uncommon in the industry. After the fire was put out, work ceased for the day, but Respondent appeared the very next day and continued with the roofing project. There is expert testimony that leaving such a pitch or tar fire unattended was negligent and that if the overly hot pitch or tar had then cooled overnight, been reheated, and used on Jessell's roof it would have been inadequate for the job. However, there is no direct credible testimony or documentary evidence that this is what actually occurred. Mr. Jessell was not present on the site the next day and approximately 60-70 percent of the base layer of the roof had been tarred over before this event occurred. Mr. Jessell is a college professor in finance and real estate. He has no expertise in contracting, roofing, or inspection of such jobs or the material used therein, but upon observation from the ground, without going onto the roof, Jessell decided the roof was not being properly constructed. On June 25, 1987, at Mr. Jessell's insistence, Gene O. Seymour, the Chief Building Inspector of the Broward County Building Department inspected the job, which he did not approve at that time. Respondent came back to conform the job to the inspector's concerns. Seymour did not approve the job at reinspection on July 1, so Jessell withheld payment. Respondent again returned and did some additional work. On July 9, the job again did not pass inspection. Respondent did further repairs on July 29. There were numerous other inspections but the job did not pass for one reason or another. On each occasion, Respondent came back to address the inspector's concerns. Seymour's testimony can be synopsized that he made an extraordinary number of inspections (at least 20) at Mr. Jessell's urging, and that the roof often failed to pass, mostly because the work was not yet fully completed. Inspector Seymour noted that sometimes the job would pass one inspection only to have Jessell call him back and show him new problems which had appeared in the interim. Seymour could not explain how this could be. He termed the job "jinxed." Respondent maintains, and Jessell denies, that Jessell frequently would go up on the roof and make suggestions to Respondent and his employees on how the roofing should be done, that Jessell pulled up on the felts, and that Jessell otherwise damaged the work done by Respondent and his crew. Having observed the respective candor and demeanor of Jessell and Respondent, and after considering and weighing the foregoing comments of Inspector Seymour and of all the witnesses' peripheral testimony on how rapid deterioration and excessive patching occurred, I find Respondent's explanation of the problems up to this point to be the more credible explanation, if a somewhat exaggerated one. Up until August 22, 1985, Respondent came and fixed anything Jessell complained of or that had been noted by an inspector. Finally, on August 22, Inspector Seymour approved the job as ready for the addition of tiles. Jessell was still dissatisfied with the roof.. By this time, he had been up on it several times with and without Seymour. Jessell took photographs and sought out Seymour in his office. Seymour rescinded his approval due to the appearance of new water blisters. Both Jessell and Seymour concur that at this point there were no leaks. On August 30, Seymour inspected again. He cut deeply into the roofing material in three places; in each place, he cut down to the base plywood sheeting and found no evidence of any water. This type of testing is considered "destructive testing." He also observed gouges, slashes, and nails working out. He proposed that Jessell get an independent consultant to resolve the problems between them. Respondent obtained a visual inspection by Sheldon Israel who wrote a letter which was signed off on by a certified architect and which confirmed that the roof as completed by Respondent thus far complied with the intent of the South Florida Building Code, which Code has been adopted in Broward County. On September 20, Seymour gave final approval for the stage the job had reached based on the letter from Israel and the fact that the waterproof membrane which Respondent had installed was intact at that time. Thereafter, Jessell hired Richard Paul Scanlon, a licensed and certified roofer, who eventually tore off what had been done by Respondent and did a complete "reroof" at a cost to Mr. Jessell of $6500. Scanlon, qualified at hearing to give expert evidence in roofing contracting, saw the roof in January 1986, approximately six months after Respondent had left the job. During those six months, the unfinished roof had been sitting exposed to the elements, without tiles, and with numerous patches, gouges, and cuts in it. He opined that Respondent's work constituted poor work and gross negligence. His opinion is based on his visual inspection without any tests whatsoever. Errors in Respondent's work which he noted included mopping the tar the wrong way, improper water lapping, and use of some rag felts and some fiberglass felts as opposed to the use of fiberglass as required by the Jessells' contract with Respondent. (However, rag felts and fiberglass felts both meet Code requirements.) Scanlon felt there was a possibility the roof would slide if tiles were added atop Respondent's work but declined to say this was a probability. In order to give a roof warranty, Scanlon felt he had to tear off Respondent's work and "reroof." Whatever he may have found when he tore the roof off later was not explored. Robert D. Hilson, a licensed and certified roofing contractor was also qualified as an expert witness. He also did not inspect the Jessell work until January 1986. He stated the number of patches over the base layer was excessive and unusual and the consistency of the tar was far too "runny," thin, and "gooey." As opposed to this thin consistency being clearly connected to the kettle fire and base coat mopping, Hilson indicated the consistency of tar he was objecting to was a last attempt at overpatching the base layer. He also testified that the roof patches had been lapped the wrong way and occasionally had been mopped inadequately or the wrong way, and he assumed the base layer was also lapped the wrong way, but he never "eyeballed" the base layer to verify this. He found water present at that time. He indicated 6 months exposure would have caused insignificant deterioration. Contrariwise, Sheldon Israel, also accepted as an expert, opined that possibly 6 months could have caused the deterioration Scanlon, Hilson and Jessell all described as existing in January 1986. The contract between the Jessells and Respondent is ambiguous. One portion provides: "5. Install Spanish Style, cement tile roof over 90 lb. roof surface." Another paragraph provides: "8. Owners to select specific colors of Gory Spanish S by 6/12/87 at 12:00 p.m." Printed instructions (specifications) for installation of Gory roofing tile require water laps on 90 pound felt. The Southern Building Code requires prepared roof coverings to be applied in accordance with manufacturers' printed instructions for the products used. Respondent used 90 lbs. rag felts and some fiberglass felts. Both meet Code. Respondent admits he also installed a waterproof membrane or tile underlayerment that was manufactured especially to go underneath Genstar cement tile. This waterproof membrane can only be exposed to the elements without covering for 6-8 months before it is too damaged for use. Respondent planned to install Gory tile on top of the membrane but according to the best expert testimony Gory tile cannot competently be installed over such a waterproof membrane and its ability to be installed over fiberglass felts is questionable. The dispute between Jessell and the Respondent was resolved and Mr. and Mrs. Jessell executed and tendered a full release dated March 20, 1986, for all work performed on their house by Respondent and Great Southern Industries, Inc.
Recommendation Upon the foregoing findings of fact and conclusions of law it is recommended that the Construction Industry Licensing Board enter a final order finding Respondent guilty of violations of Sections 489.129(1)(g), 489.129(1)(j) and 489.119, Florida Statutes, assessing a penalty of $1000 administrative fine therefor, and dismissing the charge of fraud, deceit, gross negligence, incompetency, or misconduct brought under Section 489.129(1)(m), Florida Statutes. DONE AND ORDERED this 2nd of July 1987, in Tallahassee, Florida. ELLA JANE P. DAVIS 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 2nd day of July 1987. APPENDIX TO RECOMMENDED ORDER CASE NO. 86-2552 The following constitute rulings pursuant to Section 120.59(2), Florida Statutes, upon the parties respective proposed findings of fact (FOF). Petitioner's Proposed FOF. 1-2. Covered in FOF 1. Covered in FOF 1 and 4. Accepted but subordinate and unnecessary. Sheldon Israel was accepted as an expert witness upon other qualifications of record. Accepted but alone is not dispositive of any issue at bar. Rejected as out of context and as not constituting an ultimate material fact. The topic as a whole is covered in FOF 9-11 and the conclusions of law so as to conform to the credible record as a whole. Accepted but not dispositive of any issue at bar. Topic covered in FOF 5 and 10. Accepted but not dispositive of any issue at bar. Contrary to the parties' belief, lack of supervision was not alleged with specificity in the administrative complaint. I accept Respondent's testimony that the employee assigned to the kettle, improperly oxygenated its contents but had not abandoned it. See FOF 5 and 10. Rejected as covered in FOF 11 which conforms with the evidence of record. Rejected as covered in FOF 9 which conforms to the evidence of record. Respondents Proposed FOF. Covered in "Issues." Covered in FOF 1. Covered in FOF 2. Covered in FOF 4. Covered in FOF 12. Covered in FOF 3. Rejected as covered in FOF 11, which conforms with the evidence of record. Rejected as a conclusion of law. Accepted as modified in FOF 6-7 to conform to the evidence of record. COPIES FURNISHED: G. Vincent Soto, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 Gary I. Blake, Esquire 3111 University Drive Coral Springs, Florida 33065 Fred Seely, Executive Director Construction Industry Licensing Board Post Office Box 2 Jacksonville, Florida 32201 Van Poole, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 Joseph A. Sole, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750
Findings Of Fact Respondent is and at all material times has been a licensed specialty contractor in the State of Florida. He holds license number RX 0034241. He holds this license in his personal name. He does business as Rex Hawley Aluminum Contractor, of which he is the sole proprietor. He is not the qualifying agent for this entity. He is licensed in Pasco County, Florida, as a registered aluminum specialty contractor only. Respondent entered the aluminum contracting business in 1973. At that time, he bought shares in his brother-in-law's business, Dun-rite, Inc., which was then engaged in aluminum contracting. Respondent is one of 70 directors of the board of the Aluminum Association of Florida, which consists of 3000 members. He is the Secretary and Treasurer, as well as chair of the Code and Compliance Committee, of the Pasco County and Hernando County chapters of this trade association. From time to time, Herbert Wade ("Skip") Hunter works as an independent contractor for Respondent. Mr. Hunter initially met with Joyce E. Hamer in September, 1986, to begin negotiations concerning improvements to her mobile home in Pasco County, Florida. At all times material hereto, Mr. Hunter acted as a duly authorized agent for Respondent when dealing with Ms. Hamer; however, Mr. Hunter had apparent but not actual authority to enter into a contract, on Respondent's behalf, to re-roof Ms. Hamer's mobile home with shingles. Mr. Hunter eventually submitted to Ms. Hamer a written proposal for the job. The proposal called for, among other things, a panel or pan roof, which is made of aluminum. Ms. Hamer never acted on this proposal. After several months, Mr. Hunter concluded that Ms. Hamer had no interest in the proposal that he had made. In February, 1987, Ms. Hamer contacted Mr. Hunter and expressed interest in the improvements that they had earlier discussed. Negotiations soon resulted in a new written proposal, which Ms. Hamer accepted on February 14, 1987. The new proposal differed from the old one in that, among other things, it called for a shingle roof rather than the more expensive pan roof. This provision was consistent with Ms. Hamer's concern during negotiations over the price of the job. Respondent had never met or communicated with Ms. Hamer prior to her acceptance of the second proposal. He was unaware that Mr. Hunter had proposed a shingle roof until Mr. Hunter returned to the office with the contract, which by that time had been signed by both parties. The contract was signed on February 14, 1987, which was a Saturday. On the following Monday or Tuesday, February 16 or 17, 1987, Respondent visited Ms. Hamer for the purpose of discussing her choice of roof. The parties disagree as to what was said during this discussion. Ms. Hamer testified that she had left the choice of roof to Mr. Hunter and that he selected shingles. Her testimony was unclear as to the purpose of Respondent's visit, although she implied that it was in preparation for the commencement of construction. Respondent testified that when he learned from Mr. Hunter that he had agreed to re-roof with shingles, Respondent told Mr. Hunter that they could not do such work. Respondent testified that he visited Ms. Hamer expressly for the purpose of convincing her that she should select a pan roof instead of shingles. Ms. Hamer's testimony is not credible on the selection of roofing materials. Her finances were tight. The job could not begin until she received a bank loan for the improvements. She had borrowed just enough to cover the improvements. The pan roof cost $2000 more than the shingle roof. Ms. Hamer naturally would have preferred the less expensive shingle roof, especially given her expressed preference for the appearance of shingles. On the other hand, Respondent's interests were better served by the installation of the more expensive pan roof, which he could do with his built-in profit margin. Respondent believed that he could not lawfully perform the shingle re-roofing job. Based on these facts, as well as the relative demeanor and credibility of the parties, as set forth below, the greater weight of the evidence supports Respondent's version that he tried to convince Ms. Hamer to agree to a pan roof, but was unsuccessful. Ms. Hamer had not lived in the subject mobile home at any time material hereto. When she first met Mr. Hunter, she was living with her elderly and infirm mother in a mobile home next door to the subject mobile home. Ms. Hamer desired the improvements so that she and her mother could move into Ms. Hamer's mobile home. Ms. Hamer testified that her mobile home was in habitable condition at the time of the negotiations. She expressly testified that the roof did not leak prior to the work performed by Respondent, although, after repeated questioning on this point, she admitted on cross examination that one wall in the bedroom had a single spot showing water damage prior to February, 1987. Respondent and Mr. Hunter disputed Ms. Hamer's testimony in this regard. They testified that the roof over the back bedroom showed evidence of serious leaking prior to the commencement of work. Mr. Hunter testified that the day that Ms. Hamer signed the contract they went into the back bedroom and discussed the water leakage from the roof and wall. He noted that the carpet was soaked and there were water stains on the ceiling. He also saw a plastic sheet on the bed. Respondent testified to seeing the same conditions later, but prior to the commencement of work. Respondent testified that the window frame in the bedroom was rotten. This conflict in testimony must also be resolved in favor of Respondent. Part of the reason is Ms. Hamer's demeanor and general credibility as a witness, as set forth below. In addition, Ms. Hamer testified reluctantly to any prior water damage in her bedroom. Although appearing to understand the questions, she tried on three or more occasions to avoid testifying to preexisting water damage to the wall. Ms. Hamer testified that she replaced the roof because it was seven years old and she wanted to coordinate it with the rest of the addition. She testified that when she first bought the mobile home she intended to replace the roof when it wore out with one of a lighter color in order to lower her cooling bills. She felt that seven years was the life expectancy of the roof. Respondent disputed whether the new shingles were lighter in color than the old shingles. Given her tight financial situation, Ms. Hamer probably would not have replaced the roof until it was necessary to do so--that is, when it began leaking. It is less likely that she would have prematurely replaced a serviceable roof merely for the sake of appearances or marginal savings on her cooling bills. On the other hand, Mr. Hunter's credibility on the issue of preexisting water damage was enhanced when he testified frankly on cross examination that he did not notice, prior to the re-roofing, all of the damage depicted in Petitioner's photographs. If he were lying, he would presumably have seized the opportunity to embellish the extent of preexisting interior damage. The work commenced as soon as Ms. Hamer received her loan proceeds, which was a few days after she signed the contract. The loan itself was based on an appraisal that was performed on January 22, 1987, and delivered on February 2, 1987. The appraisal found the value of the proposed improvements to be $17,399, which is considerably in excess of the $15,754 price of the first proposal (which included the pan roof) or the $13,895 price of the accepted proposal. Assuming that Ms. Hamer did not obtain the appraisal on the basis of the older proposal, the fair market value of the work performed by Respondent was about $3500 more than he charged her. On February 16, 1987, Kustom Koncrete applied for and received a building permit for the concrete work, which included the screened enclosure floor, a ramp to the carport, a carport floor, and the driveway. On February 18, 1987, C & H Jordan applied for and received a building permit for the electrical work. On February 25, 1987, Southern Pools applied for and received a building permit for the installation of the pre-plumbed spa. On the same date, Dun-Rite, Inc. applied for and received a building permit for the addition of screen walls. Dun-Rite, Inc. is the name that the Pasco County Building Department used for Respondent when issuing building permits. Respondent did not mark up any of the subcontractors' invoices in order to make a profit on their labor and materials. When inspecting the concrete foundation laid by Kustom Koncrete on February 18, 1987, Mr. Roger Groover, a building inspector for the Pasco County Building Department, noticed re-roofing activity for which no permit had been issued. He immediately issued a stop-work order. Respondent then applied for a building permit on Ms. Hamer's behalf, using a letter dated February 17, 1987, in which she had appointed him as her agent to obtain a permit to install shingles on her home. On February 18, 1987, a building permit for re-roofing was issued showing that the owner was the contractor. The testimony is in conflict concerning the circumstances surrounding the original re-roofing job. The dispute arises over what was agreed to at the meeting between Respondent and Ms. Hamer on February 16 or 17, 1987. Respondent testified that when he was unsuccessful in persuading Ms. Hamer to agree to a pan roof, even after he offered to do the work at his cost, he told her that he could not do the work. However, he testified that he agreed to obtain the shingles for Ms. Hamer and deliver them to the work site, but they would be installed by laborers who, although normally working for Respondent, would be working for her and not him. Consistent with Respondent's version, it was during this visit that Ms. Hamer signed the above-described February 17 letter. Respondent testified that he warned Ms. Hamer at that time that he would not be responsible for the roof. Respondent testified that he agreed to pay for the labor and materials on Ms. Hamer's behalf and then back out the amount of these payments from the contract price. Ms. Hamer disputed all of Respondent's testimony on this point. This dispute in critical testimony is the most difficult to resolve. Respondent's version lacks any internal inconsistencies. It is therefore necessary to rely upon the demeanor of the witnesses and their general credibility. Respondent and Mr. Hunter were frank and straightforward in their testimony. Not all of their testimony placed Respondent in the most favorable light and they recognized this fact. Ms. Hamer, by way of contrast, was evasive. Her answers frequently failed to respond to the question, even after warning. She contradicted herself many times in her own testimony. For instance, she testified unequivocally that Respondent was present when the contract was signed, then testified that he was not. She testified that she had not met Respondent prior to the signing of the contract, then testified that she had. She testified that she had not spoken with Respondent in the last eight months before the hearing, then testified that she had spoken with him within a couple of months prior to the hearing. Ms. Hamer's credibility was also damaged by her unsuccessful attempt to impose upon Respondent the responsibility for paying two invoices from Suburban Propane. Ms. Hamer produced these invoices from a carefully maintained notebook that she brought with her to the hearing. She testified that Respondent improperly failed to pay these bills. Upon further examination of the witness, it became clear that one of these items was for the filling of the tank that provided the fuel to heat her spa--an item for which Respondent was clearly not responsible. After much evasion, Ms. Hamer finally admitted that the second invoice was not to purchase the original propane tank but to replace it with a larger tank. Ms. Hamer's earlier testimony regarding Respondent's unsatisfied responsibilities as to these invoices appears to have been offered with either reckless indifference or conscious disregard to the facts. For these reasons, I expressly find Respondent's version of the facts in Paragraph 18 to be true. The re-roofing began on February 17, 1987, and was completed a few days later. There was no rain for the next six weeks. Although all the other work was completed during the greater portion of this time, Ms. Hamer did not move into the mobile home and offered no reason as to why she did not. One likely inference, given the circumstances, is that the interior had suffered such damage prior to the work that the mobile home was uninhabitable. When it finally rained on March 28, 1987, the roof leaked extensively. After several complaints from Ms. Hamer, Respondent contracted with Rathel's Roofing to re-roof the mobile home at Respondent's expense. Respondent paid Rathel's Roofing $1400 for the new roof. The re-roofing was accomplished on or about April 29, 1987. Ms. Hamer testified that there continues to be some leakage between the screened room and the main portion of the mobile home However, no evidence established the extent of this problem or that it was the responsibility of Respondent rather than the roofer, whom Ms. Hamer testified did all that she asked to be done. Mr. Hunter, who also works as a sales agent for one or more pool contractors in Pasco County, testified that it is the practice in Pasco County for a pool contractor to enter into a contract with a customer for the construction of a pool and then to enter into subcontracts with electrical and plumbing subcontractors for the electrical and plumbing work. Respondent testified that pool contractors in Pasco County and throughout the state customarily contract to build screened enclosures, even though not licensed to do so, and then subcontract the construction of the enclosure an aluminum contractor such as himself.
