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 Whether Respondent committed the offenses alleged in the Administrative Complaint and the penalties, if any, that should be imposed.
Findings Of Fact At the times pertinent to this proceeding, Respondent was not registered, certified, or otherwise licensed to engage in contracting in the State of Florida. At the times pertinent to this proceeding, Respondent conducted business through an entity known as C. J. Home Improvement Corporation, which was also not registered, certified, or otherwise licensed to engage in contracting in the State of Florida. In 1995, Joseph Pallant was one of the owners and the manager of a commercial building located at 3700 Biscayne Boulevard, Miami, Florida. In January 1995, Mr. Pallant entered into an agreement to lease the building for a term of ten years to a non-profit organization named PWAC, an acronym for People With Aids Coalition. PWAC had an office in the adjacent block and wanted to operate a thrift shop at the subject premises. The roof on the subject building leaked. The parties agreed that Mr. Pallant would pay to replace the roof and that PWAC would thereafter be responsible for maintenance. The officers of PWAC informed Mr. Pallant that they wanted Respondent to do the roofing work. There was a conflict in the evidence as to whether Mr. Pallant knew that Respondent was unlicensed. It is clear that Mr. Pallant and Respondent knew one another prior to January 1995. Based on Mr. Pallant's testimony, which the undersigned finds credible, it is found that Mr. Pallant knew that Respondent was in the building repair business, but that he did not know Respondent was unlicensed. Respondent's assumption that Mr. Pallant knew he was unlicensed is not as credible as Mr. Pallant's direct, unequivocal testimony that he had no such knowledge. After having several conversations with Mr. Pallant by telephone and at the building, Respondent prepared a written proposal on his business form to do the work necessary to replace the roof. The proposal was submitted to PWAC. The proposal described in detail the work that would be done and the materials that would be furnished, the time frame for the work, and the price. The price was set at $6,183.00 plus $400.00 if certain additional work would have to be done on certain drains. PWAC was provided a copy of the proposal that was dated February 25, 1995. Respondent signed this proposal and affixed the corporate seal of his business entity. Under Respondent's signature was the phrase "personally individually guaranteed." At all times pertinent to this proceeding, Respondent knew that Mr. Pallant was one of the owners of the building and that he would be paying for the roofing work. On February 27, 1995, Respondent and Mr. Pallant met. Respondent gave Mr. Pallant an unsigned copy of the written proposal (dated February 27, 1995, but otherwise identical to the form given PWAC, but dated February 25, 1995). After they discussed the work, Mr. Pallant accepted the proposal and gave Respondent a check made payable to C. J. Home Improvement in the amount of $3,100.00. Respondent accepted this check and deposited the proceeds of the check in his company's bank account. Without the prior knowledge or consent of Mr. Pallant, Respondent attempted to subcontract the roofing job to a licensed roofer named Don Palmier.1 No work was started on the job. In March 1995, Mr. Pallant met with representatives of PWAC and Respondent to discuss the lack of progress. As a result of that meeting, Mr. Palmier refused to proceed with the roofing job2 and Mr. Pallant learned that Respondent was unlicensed and could not do the work. During the course of the meeting PWAC cancelled its lease. Mr. Pallant subsequently filed suit against C. J. Home Improvement for the return of the $3,100.00. Despite obtaining a final judgment for that sum plus costs and fees, the Respondent has not satisfied any portion of the judgment. As of April 23, 1998, the Petitioner's costs of investigation and prosecution in this case, excluding costs associated with an attorney's time, totaled $269.62.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner enter a final order that adopts the findings of fact and conclusions of law contained herein; finds Respondent guilty of violating the provisions of Section 489.127(1)(f), Florida Statutes, as alleged in Count I of the Administrative Complaint; dismisses Count II of the Administrative Complaint; imposed an administrative fine against the Respondent in the amount of $2,500.00; and assesses costs against Respondent in the amount of $269.62. DONE AND ENTERED this 10th day of September, 1998, in Tallahassee, Leon County, Florida. CLAUDE B. ARRINGTON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 10th day of September, 1998
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.
Findings Of Fact Petitioner is a licensing and regulatory agency of the State of Florida charged with the responsibility and duty to prosecute administrative complaints pursuant to Chapters 455 and 489, Florida Statutes. At all times pertinent to this proceeding, Respondent was licensed as a certified building contractor and a certified roofing contractor, having been issued license numbers CC C027427 and CB C023123. At all times pertinent to this proceeding, MCI was a corporation engaged in roofing contracting, and Respondent was its qualifying agent. A re-roofing job by MCI on the shared roof of two townhouses located at 105 and 106 Woodland Road, the Village of Palm Springs, Florida (the Village), is at issue in this proceeding. These two townhouses are part of a building consisting of four townhouses. All four townhouses have a shared roof. Essentially, the work by MCI was to re-roof half of the entire roof. At the times material to this proceeding Lawrence Gauer owned the townhouse at 105 Woodland Road (Gauer townhouse) and RCM owned the townhouse at 106 Woodland Road (RCM townhouse). Both townhouses are within the permitting jurisdiction of the Village. Mr. Malt, Respondent's brother, owns RCM. Mr. Malt is a certified general contractor, developer, and real estate broker. Mr. Malt has extensive experience building townhouses, having built over 4,000 dwelling units, including the townhouses where the work at issue in this proceeding occurred. Mr. Malt also owns the company that manufactured the engineered pre-stressed concrete structural members that served as the foundation for the roof at issue in this proceeding. Mr. Malt is not a licensed roofing contractor, and his general contractor’s license does not authorize him to perform roofing work. In the fall of 1998, Mr. Malt determined that the RCM townhouse should be re-roofed. Mr. Malt contacted the owners of the other three townhouses to determine whether they wanted to re-roof their portions of the shared roof. Mr. Gauer decided to have his part of the shared roof re-roofed with Mr. Malt, but the owners of the other two townhouses declined. At all times material to this proceeding, Respondent authorized Mr. Malt to act as an agent for MCI. On January 7, 1999, MCI contracted with Mr. Gauer and with RCM to perform the work at issue in this proceeding. Mr. Gauer signed the contract in his capacity as owner of his townhouse. Mr. Malt signed the contract on behalf of RCM as owner of its townhouse. Mr. Malt also signed the contract on behalf of MCI in his capacity as its agent. The total amount of the contract was $5,000, with each owner (Mr. Gauer and RCM) being responsible for payment of $2,500. The contract required each owner to pay $1,250 upon execution of the contract with the balance due within five days ". . . of completion (inspection by the Village . . .)". On or about January 7, 1999, Mr. Gauer paid $1,850 to MCI. There was no explanation as to why Mr. Gauer paid more than the contract required on that date. Respondent's license number did not appear in the contract, and the contract did not contain a written statement explaining the rights of consumers under the Construction Industries Recovery Fund. On January 13, 1999, Mr. Malt, as agent for MCI, applied to the Village for the requisite building permits for the subject work. On January 13, 1999, the Village issued two separate permits, one for each townhouse, authorizing the re- roofing work contemplated by the subject contract. Each permit reflected that the valuation of the work was $2,500. Consistent with the applicable building code, the Village's building department issued a notice with each permit that because the roof was flat, the roof had to provide positive drainage to prevent the ponding of water or the roof had to be constructed of specific water retaining material. Mr. Malt, as agent for MCI, hired the crew that performed the roofing work at issue in this proceeding. At all times material to this proceeding, Mr. Malt supervised the roofing crew that worked on the two townhouses. Prior to beginning work on the roof, Mr. Malt checked weather forecasts for the area. On January 13, 1999, the roofing crew removed the existing roofing material from the roof. At the end of the workday, the crew covered the exposed roof with plastic sheeting commonly referred to as Visqueen. For a flat roof, the accepted standard in the roofing industry is to remove only as much roofing material as can be replaced with finished roofing material the same day. A plastic sheeting such as Visqueen is inadequate to protect an exposed flat roof from a heavy rainfall. The failure to adequately protect the exposed roof on January 13, 1999, constituted negligence. On the night of January 13, 1999, an unexpected heavy rainfall event occurred. As a consequence of the rainfall and the inadequately protected roof, substantial amounts of rainfall intruded in both townhouses, causing extensive damage. The work crew spent most of January 14, 1999, cleaning up following the rain event the previous day. As of Friday, January 15, 1999, the roof was still exposed. On that date, MCI installed a base coat of hot asphalt and insulation, which was inadequate to waterproof the flat roof. At the end of the workday, the roofing crew covered the roof with Visqueen and left for the weekend. On January 16, 1999, additional heavy rains occurred. Again, as a consequence of the rainfall and the inadequately protected roof, substantial amounts of rainfall intruded in both townhouses, causing additional damage to both townhouses. The failure to adequately protect the exposed roof constituted negligence. Mr. Gauer's homeowner's insurance company paid his policy limits for emergency services and repairs to his townhouse. The repairs were completed on or about February 19, 1999. Mr. Gauer subrogated his rights against MCI to his insurance company. There was a civil action pending by the insurance company against MCI at the time of the final hearing based on the subrogation rights. Mr. Gauer's homeowner's insurance did not cover damages to his or Mr. Poitivent's personal property. The value of those losses was not established. During the week beginning January 18, 1999, MCI installed new roofing material on the roof. In doing so, the roofing crew covered the clothes dryer vent for each townhouse with roofing material. As a result, Mr. Gauer's clothes dryer did not vent properly, and he paid an independent contractor $250.00 to inspect and clean out the dryer vent. MCI promptly corrected the deficient work after Mr. Gauer told Mr. Malt that his dryer vent had been covered during the re-roofing. The accepted standard in the roofing industry is that roof vents are not to be covered over without some specific instruction to do so. MCI's failure to adhere to that standard constituted negligence. MCI asserted that it completed the roofing work in 1999. At the times pertinent to this proceeding, Craig Johns was a building inspector for the Village. Mr. Johns inspected the subject roof on the following dates in 1999: June 15, July 15, August 12, and August 30. Following each inspection, Mr. Johns found that the roof did not pass inspection. Among other deficiencies, Mr. Johns found that the roof did not provide positive drainage, which was required for a flat roof covered in asphalt. 2/ As of the final hearing, MCI had not obtained a passing final inspection from the Village's building department. Mr. Malt established that Respondent had just cause to believe that MCI had completed all work on the project in 1999. Consequently, Respondent is not guilty of abandoning the work within the meaning of Section 489.129(1)(k), Florida Statutes (1997). As of June 15, 2001, Petitioner's costs of investigation and prosecution in this case, excluding costs associated with attorney's time, totaled $794.23. 3/
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner enter a final order finding Respondent guilty of the violations alleged in Counts I, II, V, and VI of the Administrative Complaint. The recommended penalty for the violation alleged in Count I is an administrative fine in the amount of $100. The recommended penalty for the violation alleged in Count II is an administrative fine in the amount of $100. The recommended penalty for the violation alleged in Count V is an administrative fine in the amount of $500. The recommended penalty for the violation alleged in Count VI is an administrative fine in the amount of $500. It is further recommended that the final order require Respondent to pay Mr. Gauer restitution in the amount of $250. It is further recommended that the final order require Respondent to pay investigative costs in the amount of $794.23. DONE AND ENTERED this 5th day of November, 2001, in Tallahassee, Leon County, Florida. CLAUDE B. ARRINGTON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 5th day of November, 2001.
Findings Of Fact Respondent has been licensed as a registered roofing contractor at all times relevant to this proceeding. His license number is RC0042041. On August 30, 1982, Respondent contracted with the Julien P. Benjamin Equipment Company of Jacksonville, Florida, for the rental of an asphalt kettle. Respondent executed this contract in the name of his roofing and remodeling business. When Respondent failed to return the kettle or make rental payments, the equipment company filed a complaint with the State Attorney. Respondent subsequently entered a plea of guilty to the charge of Grand Theft, second degree, and was placed on 18 months probation, by order of the Duval County Circuit Court dated May 16, 1983. Respondent returned the kettle and paid the rental fees in March 1983.
Recommendation Based on the foregoing, it is RECOMMENDED: That Petitioner enter a Final Order suspending Respondent's roofing contractor's license for a period of one year. DONE AND ENTERED this 24th day of August 1984 in Tallahassee, Florida. R. T. CARPENTER 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 24th day of August 1984. COPIES FURNISHED: Charles F. Tunnicliff, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Mr. Rex Alaniz 23 Seatrout Street Ponte Verde Beach, Florida 32082 James Linnan, Executive Director Construction Industry Licensing Board Post Office Box 2 Jacksonville, Florida 32202 Mr. Fred M. Roche, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301
Findings Of Fact At all times material to these proceedings, the Respondent LARRY DAVID COMES, was licensed by the State of Florida as a registered specialty contractor and held license number RX00400762. Mr. Comes is the qualifying agent for D & L Enterprises. At all times material to these proceedings, the Respondent CHARLES J. GOREE was licensed by the State of Florida as a certified general contractor and held license number CG C007621. Mr. Goree is the qualifying agent for CJC Incorporated. In the beginning of the year 1985, the Island Village Association decided to reroof all six buildings located in the condominium project. At the time of the decision, all of the roofs were leaking. The existing roofs had been repaired and patched numerous times since the condominiums were built in 1973. On February 27, 1985, the Respondents COMES and GOREE submitted a joint proposal to the association to remove the existing built-up roof, apply a Neoprene/Hypalon roof, and remove and reshingle the mansard roof for $19,865.00. On April 15, 1985, a written contract was entered into between Island Village Condominium Association and David L. Comes, d/b/a D & L Enterprises, as contractor for the reroofing of Building "C." The Contract required the contractor to furnish all materials and labor to remove the existing built-up roof. Rotten wood on the deck was to be replaced on a time and materials basis. Damaged scuppers were to be replaced and other scuppers were to be cleaned out by the contractor. The Neoprene/Hypalon system would then be applied to the flat roof and the parapet walls. The mansard roof was to be removed and reshingled. Although Charles J. Goree, d/b/a CJC Incorporated, was not named in the contract, the omission was an oversight. At all times during the course of the reroofing project, the Respondent GOREE was responsible for the removal of the existing built-up roof and the application of new shingles to the mansard roof. The Respondent COMES was responsible for the application of the Neoprene/Hypalon roofing system. The reroofing project was a joint undertaking in which Respondents GOREE and COMES exercised equal authority, joint control, or right of control. The Respondents had a community of interest in the performance of the contract with the association. Respondents GOREE and COMES were familiar with what was required of each of them under the verbal joint venture agreement as they had conducted business in the same manner over an extended period of time on several projects. On May 10, 1985, Respondent GOREE applied for and received a building permit for the reroofing of Building "C" at Island Condominiums. During the removal of the built-up roof, GOREE observed "an absolute mess and disaster." The roof had been patched in various ways on numerous occasions. GOREE observed a few "T nails" in a piece of metal stripping picked up with shovels on the roof. The "T nails" discovered were the type which are shot into materials from a nail gun. (See GOREE Exhibit #2) They are not used to secure plywood on a deck because of their short length. Another "T nail," such as GOREE's Exhibit 2, was found by GOREE lying on the area of the roof by the air conditioners. This area of the existing roof was not removed or disturbed during the reroofing process. In the application of his common sense and knowledge of good construction practices and in light of the material in which the "T nails' were located, Respondent GOREE was not put on notice that these "T nails" may have been used to fasten the plywood decking. The type of "T nail" which was used upon plywood roof decking a few years ago in Florida was longer, thicker, and shaped like an elongated wedge. (See GOREE Exhibit 4) None of the "T nails" formerly used for plywood decking were observed by GOREE on the roof. Once the built-up roof was removed, Respondent COMES acted within the terms of the joint venture agreement by applying the Neoprene/Hypalon roofing system in full compliance with the specifications as set forth in the contract with Island Village Condominium Association. During the application of the system, COMES and his crew did not observe any conditions on the plywood decking which would alert them to the possibility of any future problems with the system. On May 17, 1985, Mr. Jim Peaks, an Inspector for Brevard County, completed a "dry in" inspection of the roof on Building "C" which had been requested by Respondent GOREE. Mr. Peaks placed a stop order on the project because the Neoprene/Hypalon roofing system was not an approved product under the Southern Building Code which he believed was in effect in Brevard County on May 14, 1985. In actuality, the 1982 Standard Building Code was in effect at the time. Upon receipt of the stop order, Respondents COMES and GOREE went to the building department and met with Murray Schmidt, Mr. Peaks' supervisor. Mr. Schmidt had the authority to override Mr. Peaks' stop order. Mr. Schmidt, who was new to the county and his position, discussed the stop order with the Inspector. Mr. Peaks refused to remove his stop order because of the lack of code compliance. Mr. Schmidt verbally allowed the Respondents GORE and COMES to continue to work on the roof. Mr. Peaks was told to investigate the roofing system with the Southern Building Code Conference in Birmingham, Alabama. The Respondents were not notified again as to the status of the stop order, one way or the other. Because the Respondents had been told to continue the work on the roof by Mr. Schmidt, who had the authority to override stop orders, the Respondents reasonably assumed that a stop order was no longer in effect. In fact, the permit had the notation "See Murray" on it after the stop order notation. Upon completion of the project, Respondent COMES contacted the building department and requested a final inspection. In the usual course of dealing between contractors and the building department in Brevard County, a contractor is notified only if there is a problem with the project which needs correction before final approval. Neither COMES or GOREE received notification of a problem. Another recognized, usual course of dealing between a contractor and the building department is that the department notifies an owner or the contractor if a six month permit has expired and a final inspection has not been completed. GOREE was not notified of any permit expiration in this case. Again, the Respondents were given the impression by the inactivity in the building department that business was being conducted in the usual manner. The Respondents believed, based upon past and ongoing dealings with the department, that all of their obligations had been met on the reroofing project. On May 28, 1985, the final payment was received from Island Village Condominium Association and a limited warranty was issued in both Respondents' company names, pursuant to the contract with the association. Shortly after completing the job on Building "C," Respondent COMES was called to repair leaks in the new roof. COMES responded promptly and courteously, and placed the blame for the leakage on various factors such as: (1) The short "T" fasteners had begun popping through the Neoprene/Hypalon and destroyed its ability to prevent water penetration. (2) The roof had an inadequate drain system. (3) The plywood deck was bowed in a concave fashion due to the years of improper weight and excess water on the roof. During a meeting with the board of directors of the association requested by COMES, COMES offered to put on a new roof if the board would install sump pumps to remove standing water. The board rejected COMES offer and authorized the condominium property manager to seek other solutions. The Respondents were not contacted by the board again concerning alternative solutions to the problem. In June of 1986, Mr. Rex Lahr, the condominium property manager, began a review of the roof situation. After consulting with Mr. Tom Butler of the county building department, Mr. Lahr decided that an architect needed to be retained by the association to determine whether a structural deficiency or the new roofing system caused the leaks in the roof. An architect was not hired by the association. A traditional, built- up roof was applied over the Neoprene/Hypalon roofing system. In the application of the new roof, the drainage system was redone and the flat roof was given pitch, thereby redesigning the roof as well. Mr. Robert B. Hilson, who was tendered as an expert witness in the case, opined that the Respondents COMES and GOREE failed to properly determine whether the roof deck was in a condition to accept the Neoprene/Hypalon system. Mr. Robert H. Adams, who was tendered as an expert witness in the case, opined that the leaks which developed soon after the application of the Neoprene/Hypalon system indicated that the deck was not in a condition to accept the system. Although there is some basis in fact for the opinions rendered by the two experts, their opinions must be rejected for the following reasons: (1) The experts did not personally observe the building, nor was a determination made which would exclude the possibility that the roofing system failed as a result of structural or design defects. (2) There is ample evidence in the case to support a finding that the leaks were caused by structural or design defects, as well as latent defects not readily observable to the Respondents at the time the roofing system was applied, and outside the terms of the reroofing contract. Some examples of evidence which support a finding that the leaks were caused by structural or design defects are: (1) Mrs. Delores Hammels' testimony that all six buildings had to be reroofed as they all leaked periodically throughout their 12 years of existence; (2) the redesign of the drainage system and the placement of a pitch on the roof by Mr. Roush; (3) the testimony and sketch submitted by Respondent GOREE (GOREE Exhibit #5) which shows that an identical building with a pitch on the roof allows the drainage system, including the internal hidden piping system, to work correctly. The effective redesign of the roof by Mr. Roush confirms this theory as much as, or more than, Mr. Robert H. Adams' theory that the deck was not in a condition to accept the Neoprene/Hypalon system.
Findings Of Fact Respondent, Harry Clinton Brackin, is a licensed registered roofing contractor holding license number RC0045880. Respondent was licensed at all times material to this action. Respondent is the owner and licensee for Brackin Roofing Company. Sometime around February 20, 1987, Respondent entered into a contract with Mrs. Arebelle S. Hughes, an elderly woman, to re-roof her house and remodel the front porch of her home located in Vernon, Florida. In addition to the work performed pursuant to the contract, there were verbal construction agreements between Mrs. Hughes and Respondent for the remodeling of the back porch, removing and closing out windows, replacing and framing doors, placing molding in the kitchen and various other carpentry repairs. Ms. Hughes asked Respondent to perform the additional work because she was well satisfied with the roofing job done by Respondent and she was unable to find a licensed contractor willing to come to Vernon and perform the work she wanted done. Respondent, in fact, informed Ms. Hughes he was not a contractor and in his opinion she needed a contractor. However, Ms. Hughes still wanted Respondent to do the additional work for the above reasons. Later, Mrs. Hughes became very dissatisfied with the quality of Respondent's remodeling work and advised the Respondent of her complaints. However, the evidence disclosed that her complaints were not well communicated and Respondent did generally try to meet Ms. Hughes' requests. None of Respondent's work constituted a hazardous condition and no evidence was offered which indicated an actual building code violation. The Respondent has not corrected the work. Mr. Harold Benjamin, an expert in the area of general contracting, reviewed the contract, the job site, the Respondent's license, and the pertinent Florida Statutes. Mr. Benjamin's expert opinion was that the Respondent's contracting job with Mrs. Hughes definitely exceeded the scope of Respondent's roofing license. Mr. Benjamin added that the carpentry work itself demonstrated an unfitness in the area of carpentry contracting and that Respondent's work did not in some respects meet the minimum carpentry standards for the industry. However, Respondent's work was not so bad as to constitute gross negligence in the area of contracting. This is particularly true since Respondent disclosed to Ms. Hughes that he was not a contractor and that the work she wanted done should be performed by one. Respondent's duty was thereby limited to a duty to perform reasonably given his abilities. Respondent did meet that duty. Respondent was disciplined for the same type of violation in 1986.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That the Department of Professional Regulation, Construction Industry Licensing Board impose an administrative fine of $2,500.00. DONE and ORDERED this 5th day of December, 1988, in Tallahassee, Florida. DIANE CLEAVINGER Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 5th day of December, 1988. APPENDIX TO RECOMMENDED ORDER, CASE NO. 88-2721 The facts contained in paragraphs 1, 3, 4, 6, 7 and 9 of Petitioner's Proposed Findings of Fact are adopted in substance, in so far as material. The facts contained in paragraphs 2 and of Petitioner's Proposed Findings of Fact are subordinate. The facts contained in paragraph 8 of Petitioner's Proposed Findings of Fact are adopted except as to the finding pertaining to gross negligence which is rejected. COPIES FURNISHED: Elizabeth R. Alsobrook, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 Harry Clinton Brackin Route 1, Box 2470 Chipley, Florida 32428 Bruce D. Lamb, Esquire General Counsel Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 Fred Seely, Executive Director Department of Professional Regulation Construction Industry Licensing Board Post Office Box 2 Jacksonville, Florida 32201
