The Issue The issue in this proceeding is whether Willie Daniels violated sections 489.129(1)(d) and (e) F.S., as alleged in the administrative complaint, by willful violation of a local building code and aiding and abetting an unlicensed person to evade any provision of Chapter 489. At the hearing the material facts were uncontroverted.
Findings Of Fact Willie F. Daniels is now, and was at all times relevant, licensed as a roofing contractor by the Florida Construction Industry Licensing Board. He holds license #RC 0027954 and does business as "Daniels Roofing', a sole proprietorship. He has been doing roofing in the Orlando, Florida area since 1954. Willie Daniels first met Thomas Dahlman when Dahlman came to his house trying to sell windows. Dahlman told him that he did all kinds of work, including windows, roofing and painting. Later Dahlman called him and said he had a roofing job that he wanted Daniels to do and that he would take him out to the house. The house belonged to Chris Correa and was located at 4421 Sebastian Way, in Orlando. Dahlman bought the materials for the job and Willie Daniels provided a day and a half labor on the roof. He was paid approximately $600.00 by Dahlman. Chris Correa was initially contacted by an agent for Thomas Dahlman who was trying to sell solar heating devices. When she told him she really needed a new roof, he said his boss could arrange that. Dahlman arranged for her loan to pay for the roof and arranged for the labor to be done by Willie Daniels. Chris Correa paid Thomas Dahlman $3,000 for the roof. About three days after the roof was completed, on February 18, 1986, she signed a contract for the roof work with Dahlman Enterprises, Inc. The contract is signed Thomas Dahlman and by Ms. Correa. Willie Daniels was not a party to the contract. The City of Orlando has adopted the Standard Building Code, including the following provision relating to permit applications: Section 105 - Application for Permit - When Required Any owner, authorized agent, or contractor who desires to construct, enlarge, alter, repair, move, demolish, or change the occupancy of a building or structure, ... or to cause any such work to be done, shall first make application to the Building Official and obtain the required permit therefor. * * * No permit was applied for or obtained for the roofing job on Chris Correa's house. Willie Daniels assumed Thomas Dahlman was a licensed contractor because Dahlman told him he was in the business of doing roofing, painting, installing windows and similar work. He did not ask Dahlman if he was licensed. Dalhman was, in fact, not a licensed contractor.
Findings Of Fact Respondent, Albert J. Ruocco, is licensed as a registered building contractor in the State of Florida, holding license number RB00030112. His last address in the Department's file is 604 Citrus Court, Melbourne Beach, Florida 32951. Sometime prior to the date of the administrative complaint, the Department received a complaint from Mrs. Dale Normington that Ruocco told her he had obtained a termite treatment for the addition he constructed on her home, but that no treatment was done. DPR investigator, John Allen, told Mrs. Normington to send her back-up information. John Allen received in the mail a copy of the purported contract between the Normingtons and Rivers Edge Construction Company, Inc., Ruocco's Company. He also received a series of cancelled checks and a copy of a letter purportedly sent by the Normingtons to Albert Ruocco. John Allen checked the Department's licensing files and obtained the licensing information on Ruocco. He also personally served the Administrative Complaint on Ruocco, but did not, to the best of his recollection, discuss the complaint with him or have any other contact with him. Ruocco never responded to any investigative correspondence. Douglas Vanderpoest, owner of Slug-A-Bug, a pest control company, established that his company never treated the addition to the Normington resident. Brevard County Building Inspector, Howard Stott, knows Albert Ruocco and is familiar with the addition Ruocco installed for the Normingtons in 1985. A permit was obtained and Stott performed three inspections, including the slab, pre-lath and final on the addition. Brevard County requires evidence of termite treatment of soil for any new construction or modifications to an existing structure. The practice is usually for the inspector to require a receipt or evidence of treatment prior to approving the slab. Stott does not remember whether he required the evidence on the Normington job. The permit in those days did not have a space to indicate the termite treatment. However, Stott did approve the slab, as noted on the permit.
Recommendation Based on the foregoing, it is, hereby RECOMMENDED: That the Administrative Complaint dated November 2, 1987, be dismissed. DONE and RECOMMENDED this 20th day of May, 1988, in Tallahassee, Florida. MARY CLARK 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 20th day of May, 1988. COPIES FURNISHED: David E. Bryant, Esquire Bryant, Reeves & Deer 220 East Madison Street Suite 530 Tampa, Florida 33602 Albert J. Ruocco 604 Citrus Court Melbourne Beach, Florida 32951 Fred Seely, Executive Director Construction Industry Licensing Board Department of Professional Regulation Post Office Box 2 Jacksonville, Florida 32201 William O'Neil General Counsel Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750
The Issue The issues in this matter are as established through an Administrative Complaint brought by the State of Florida, Department of Professional Regulation, against Johnny C. Fossett alleging various violations of Chapter 489, Florida Statutes, related to a job conducted for Joshua and Jacquelyn Williams. More specifically, Respondent is accused of violation of Section 489.129(1)(j) , Florida Statutes (1981), by failing to properly qualify a company under which he was doing business. In a related vein, he is accused of violation of Section 489.129(1)(g) Florida Statutes (1981), by acting in a name other than that on his license. Respondent is accused of violating Section 489.129(1)(d), Florida Statutes (1981), for willful and deliberate disregard and violation of a local building code. Respondent is accused of violating Section 489.129(1)(j), Florida Statutes, for contracting beyond the scope of his registration. Finally, Respondent is accused of a violation of Section 489.129(2), Florida Statutes,(1981), in violating Rule 21E-15.07, Florida Administrative Code, by failure to notify the Construction Industry Licensing Board of a change of address within 30 days of such change.
Findings Of Fact Respondent, Johnny C. Fossett, is the holder of a license issued by the Florida Construction Industry Licensing Board in the field of registered roofing contractor. That license number is RC 0040728. Respondent is also the qualifying agent of J. C. Fossett Roofing & Maintenance Repair of 4978 Soutel Drive, Jacksonville, Florida. In addition to the Soutel address associated with J. C. Fossett Roofing & Maintenance Repair, Respondent has given the Florida Construction Industry Licensing Board the address 8937 Castle Boulevard, Jacksonville, Florida, as his address. On April 15, 1983, Respondent contracted with Joshua and Jacqelyn Williams of 4634 Fairleigh Avenue, Jacksonville, Florida, for the construction of a utility building with roof; to repour a carport slab; and to construct a screened-in patio with roof. The agreement was also for the removal of a tree hanging over the den and carport area of the existing home. The total price of this contract was $3,550. Eighteen hundred dollars was paid as a deposit, and the remainder of the contract price was paid on May 11, 1983. In the proposal or contract agreement Respondent noted that the work was guaranteed by an entity known as J. C. Roofing. A copy of this proposal may be found as Petitioner'S Exhibit No. 2 admitted into evidence. Neither the Respondent nor any other duly licensed contractor had qualified the entity/organization known as J. C.. Roofing with the Florida Construction Industry Licensing Board. Respondent performed the work called for in the contract, without obtaining the necessary building permit from the City of Jacksonville, Florida. Respondent was registered with the City of Jacksonville as a roofing contractor. He was not registered in the fields of general contracting, building contracting, or residential contracting, which would have been necessary before Respondent could conduct that work for the Williamses, other than roofing. Respondent could not have been registered with the City of Jacksonville in those fields of general contracting, building contracting, and residential contracting because he was not qualified. The Williamses experienced problems with the quality of Respondent's work, most notable, leaks in the roof that Respondent had worked on. When it rained water would run down the walls and promote mildew. This was in the area of the joining of the roof over the patio and the roof over the carport. In response to complaints, Fossett made such remarks as "A little water on the roof is good" and offered to drill holes in the roof and install rain gutters to alleviate the problem. The owners found this unacceptable. Respondent having failed to satisfy their claims, the Williamses sought other assistance in effecting repairs. The roof still leaks. On the occasion of attempting to have these problems corrected, the Williamses sought to contact the Respondent at his Soutel address by calling the number found on the business card provided by the Respondent. When phoning that number it was discovered that someone other than the Respondent was doing business from the Soutel address. The phone number was the Respondent's residential number. The card, as given to the Williamses, indicates that the business is J & C Roofing Company, Johnny C. Fossett, Owner. Again, this business name is one for which the Florida Construction Industry Licensing Board has no indication of a duly licensed contractor properly qualifying that entity, either the Respondent or some other person. Petitioner's Exhibits Nos. 5 through 7, admitted into evidence, are photographs of the work done by the Respondent, to include roofing, and the mildew on the concrete blocks found on the outside of the patio wall which was promoted by the leak in the roof.
Findings Of Fact Gary Smith d/b/a Sirmons Roofing Company is a roofing contractor registered with the Florida Construction Industry Licensing Board. Smith does not hold any license issued by local construction licensing boards which does not license roofing contractors. Smith admitted that he had commenced construction projects without acquiring the appropriate building permits from the local building officials. Calvin Smith identified a contract, Exhibit 2, which he had entered into with Gary Smith d/b/a Sirmons Roofing regarding the repair of the roof of his house. This contract called for the replacement of bad wood, which was understood by the parties to refer to rotten wood planking and rafters. Calvin Smith stated that after construction commenced and the old roof had been removed, his house had suffered rain damage although Gary Smith had advised him that the roof had been dried in. Gary Smith explained that he had in fact laid the requisite felt paper on the roof but that a severe wind and rain storm and occurred immediately following which had destroyed the felt paper. Smith stated that a crew was on the job during the storm at all times trying to keep the felt nailed down and maintain the water-tight integrity of the roof. There were no delays following the removal of the roof in replacing the felt and diligently proceeding with the re-roofing. Several days after the storm the roof had been finished, the plywood ceiling of the family room of Calvin Smith's house was partially removed to permit the insulation to be replaced. At this time Calvin Smith discovered rotten wood which Smith felt should have been removed and replaced by Gary Smith pursuant to their contract. Gary Smith stated that he had found one rotten rafter, but that he had advised Calvin Smith of the fact that it was there and that Calvin Smith realized that he was not replacing it. Gary Smith stated that he had removed and replaced all the rotten wood in the roof and that the rotten wood discovered by Calvin Smith was on that portion of the family room roof which was under the eaves of the pre-existing roof of the house where it could only be seen upon removal of the family room ceiling. Gary Smith further testified that subsequent to finding the rotten wood, Calvin Smith had not permitted him to correct the job and that he had not personally seen the rotten wood, pictures of which Calvin Smith had identified. Calvin Smith identified photographs of the interior and exterior of the roof as repaired by Gary Smith. These photographs were received as Exhibits 3 and 8. Exhibits 7 and 8 were photographs of the exterior of the roof. Exhibit 8 is a photograph of a shingle which was not properly installed. Gary Smith admitted that the shingle was not properly installed but stated that it would have been corrected prior to finishing the job. Exhibit 7 is a photograph showing a course of shingles which does not have the proper overlap. Gary Smith explained that this short run of shingles was necessary to even up or balance the runs on both sides of a hip in the roof because the distance from the eave to the top or peak of the hip was not the same on both sides. Gary Smith also pointed out that in both photographs the shingles are laid so that the bottom of the upper course of shingles comes to or overlaps the lower course of shingles to the top of the tab, causing good contact between the shingles and the adhesive strips. Contrary to the assertion of Calvin Smith that the shingles had been laid in such a manner that the adhesive strips did not touch. Calvin Smith had identified Exhibit 6 as photograph of roof flashing on the family room roof which he asserted was improperly installed. Gary Smith stated that the flashing in Exhibit 6 was installed in accordance with the manufacturer's recommendation and that the roof on the family room had the requisite number of layers of felt and tar as required by the building code. Gary Smith stated that he could not identify the purported location of the underside of the roof depicted in Exhibit 5 and identified by Calvin Smith as being in the middle of the family room. Gary Smith stated that he could not identify the purported location of the underside of roof depicted in Exhibit 5 and identified by Calvin Smith as being in the middle of the family room. Gary Smith stated that he had shown the rotten beam indicated in Exhibit 4 to Calvin Smith and that Calvin Smith had known that he was not replacing the bean because replacement would have required the removal of the family room ceiling as well as the sheeting on the roof over the beam. Gary Smith stated that the wood shown in Exhibit 3 was not rotten but water stained and that the beam was sufficiently solid to hold the weight of the roofing materials on top of it and to nail the new sheeting into. Tommy Thompson, construction inspection supervisor of the City of Jacksonville, inspected the roof of Calvin Smith's home. Thompson found that the shingles had not been lapped properly, that some shingles had been laid so that the ceiling strips would not adhere properly, that rotten rafters and wood had been left, that the correct number of nails had not been placed in the shingles, that metal flashing around the chimney had not been installed in accordance with the manufacturer's specifications, and that one, twelve inch hold had been left in the roof sheeting. Thompson identified the Building Code of the City of Jacksonville and those portions of the code relating to installation of roofing materials. Thompson stated that the items mentioned in the paragraph above constituted violations of the code. Thompson also pointed out that it was a violation of the code to commence construction or repair of a roof without obtaining the requisite building permit. J. R. Bond, Executive Director of the Construction Trades Qualifying Board of the City of Jacksonville, stated that the board did not certify roofers. The ordinances of the City of Jacksonville empower the Construction Trades Qualifying Board to hear complaints against state registered but unlicensed contractors. However, the board lacks authority to take direct action against persons who are state registered but unlicensed. The board may only request that the city building official not issue the individual any further building permits. The building official must exercise his own independent authority and judgment in determining whether to suspend an individual's right to obtain building permits. The building official suspended Smith's privilege to obtain permits without a hearing.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, the Hearing Officer recommends that Smith's registration as a roofing contractor be suspended for a period of one year. DONE and ORDERED this 3rd day of January, 1979, in Tallahassee, Florida. STEPHEN F. DEAN Hearing Officer Division of Administrative Hearings 530 Carlton Building Tallahassee, Florida 32304 Telephone: 904/488-9675 COPIES FURNISHED: Michael Egan, Esquire 217 South Adams Street Tallahassee, Florida 32304 Gary A. Smith Sirmons Roofing Company 3845 Edidin Drive Jacksonville, Florida 32211 J. K. Linnan, Executive Director Florida Construction Industry Licensing Board Post Office Box 8621 Jacksonville, Florida 32211 ================================================================= AGENCY FINAL ORDER ================================================================= BEFORE THE CONSTRUCTION INDUSTRY LICENSING BOARD FLORIDA CONSTRUCTION INDUSTRY LICENSING BOARD, Petitioner, vs. CASE NO.: 78-1780 GARY A. SMITH d/b/a SIMMONS ROOFING CO., RC 0030047, 3845 Edidin Drive, Jacksonville, Florida 32211, Respondent. /
Findings Of Fact In early September of 1979, John and Ruth E. Lockwood contracted with P & P Custom Pools, Inc. (P & P), for the construction of a swimming pool at their home, 231 El Dorado Drive, Debary, Florida. Respondent, Philip J. Mains, signed the contract on behalf of P & P and later obtained a building permit. He and his men began excavating on site in mid-September. The Lockwoods paid respondent $700.00 on September 6, 1979. As construction progressed, they paid him $1,706.25 on September 27, 1979; $1,000.00 on October 26, 1979; $1,047.50 on October 29, 1979; and $1,706.25 on November 20, 1979. At the appropriate times, a building inspector was summoned, who inspected the project, including the placement of reinforcing steel, ground wiring, and lights. Neither the "steel inspection" nor the "deck inspection" revealed any problem. The workmanship was excellent, as far as it went, but the Volusia County building inspector's office was never asked to perform a final inspection. As respondent promised there would be, there was water in the swimming pool by Christmas of 1979, but respondent did no further work after December, 1979. He never installed the pump, filter, diving board, or hand bars called for in the Lockwoods' contract. Earlier in 1979, Patrick T. Ryan, the other principal in P & P, left town and abandoned the business which was then $37,000 in debt. In November of 1979, respondent turned the company's books over to an accountant. In January of 1980 the business' financial problems became critical and, at the accountant's suggestion, respondent so advised the eight homeowners for whom he was building swimming pools, including, in January or February, Mr. Lockwood, who reacted angrily. Respondent testified that Mr. Lockwood "cussed him out." Thereafter respondent avoided the Lockwoods until April of 1980 when they found him working on another pool. There was enough money owed on the eight contracts as a group to finish all the pools, according to respondent's uncontroverted testimony, at the time the Internal Revenue Service levied on respondent's bank account and seized his tools and equipment. Even then respondent offered to finish the Lockwoods' pool if they would buy the materials. Respondent's wife asked Mrs. Lockwood to write a check to a supplier for a pump and filter so that respondent could install them and get water in the pool circulating. Instead, during the last week of April, 1980, the Lockwoods contracted with somebody else to finish the job and paid him $1,200. Respondent subcontracted with a Jacksonville cement company to pour concrete for the pool. After the concrete had been poured, the Lockwoods got a registered letter from the subcontractor threatening to place a lien on their property if he were not paid. According to Mr. Lockwood, the problem was that some check [supposedly drawn by respondent in favor of the subcontractor] had been delayed in the mail. In any event, there was no indication in the evidence that the Lockwoods heard anything further from the subcontractor.
Recommendation Upon consideration of the foregoing, it is RECOMMENDED: That petitioner suspend respondent's registration for thirty (30) days. DONE AND ENTERED this 29th day of April, 1981, in Tallahassee, Florida. ROBERT T. BENTON, II Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 30th day of April, 1981. COPIES FURNISHED: Charles F. Tunnicliff, Esquire 130 North Monroe Street Tallahassee, Florida 32301 Philip J. Mains c/o Sue Mains Route 2, Box 799A DeLand, Florida 32720 ================================================================= AGENCY FINAL ORDER ================================================================= BEFORE THE FLORIDA CONSTRUCTION INDUSTRY LICENSING BOARD DEPARTMENT OF PROFESSIONAL REGULATION, Petitioner, vs. CASE NO. 80-2231 PHILIP J. MAINS, RP 0024663, Respondent. /
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant facts are found: At all times material to this proceeding, Respondent was a registered roofing contractor in the State of Florida with license No. RR 0026422 and qualified Acoma Roofing Co. (Acoma) with the State of Florida, Department of Professional Regulation. On September 6, 1985, Acoma Roofing Co. and John Scholtens entered into an agreement whereby Acoma was to remove the existing roof, replace any rotten sheathing, install white tile on the roof, flash two (2) chimneys, and perform other work incidental to replacing roof on the home of John and Helen Scholtens located in Alachua County, Florida and known as the Red Baron Farm, for the contract price of $23,000.00. The contract as executed on September 6, 1985, and contained the standard guarantee for materials as specified and for work to be completed in a workmanlike manner according to standard practices. The guarantee also required that any alterations or deviations involving extra costs be executed only upon written orders. There was no requirement in the contract for Acoma to replace or repair any beams. The contract was silent as to who had the responsibility to obtain the permit for the job with the local building department, and both the Respondent and Scholtens assumed the other would obtain the permit. The permit was neither obtained nor posted on the job site. Neither Respondent nor Scholtens obtained the required inspections of the repair work performed by Acoma. Sometime between September 6, 1985 and November 15, 1985, Acoma began work on replacing the roof and completed the job sometime before November 30, 1985. On November 15, 1985, Scholtens paid Respondent $10,000.00 for work completed by Acoma. On November 30, 1985, Acoma presented Scholtens with an invoice for $14,110.00 which included the balance under the contract of $13,000.00 plus $1,110.00 for replacing sheathing and beams. Scholtens refused to pay for the extras and deducted $520.29 from the $13,000.00 balance for alleged damage to the Scholten's septic tank and gave Respondent a check for $12,479.61 as payment in full. As a condition of Scholtens paying the balance, Respondent agreed to add the language "5 years unconditional guarantee" to the contract. This was added due to the insistence of Helen Scholtens, an attorney at law. Sometime around the middle of June, 1986, Helen Scholtens called Respondent and complained that the roof was leaking around the chimneys and requested that Respondent fix the leak. By letter of June 20, 1986, Respondent advised her that unless he was paid the balance of $1,110.00 within five (5) days he would not fix the leak and would consider the 5 year unconditional guarantee as "null and void." On July 3, 1986, Helen Scholtens advised Respondent by letter that unless he fixed the leak they would seek legal action against him. Respondent did not fix the leak as requested, and on August 25, 1986, Scholtens obtained an estimate from Poole Roofing and Sheet Metal Co. (Poole) for repair of the leak. W. P. Yengling, an Estimator for Poole, checked the roof and gave an estimate of $1,510.00 to repair the leak and other incidentals. Scholtens contracted with Poole for the repair which was completed in early 1987. Earlier, on the original reroofing of Scholtens' home, Poole, based on an estimate prepared by Yengling, submitted a bid for the repair of the roof but was not the successful bidder; the award going to Respondent which is the subject matter of this proceeding. There was insufficient evidence to show that a leak had caused damage to the ceiling of Scholtens' home or, assuming there was a leak, that the leak was the result of Acoma's failure to flash the chimneys as contracted or a result of Acoma's poor workmanship in flashing the chimneys. On the date of the hearing Respondent had not responded to Scholtens request to repair the roof other than his response on June 20, 1986.
Recommendation Having considered the foregoing Findings of Fact, Conclusions of Law, the evidence of record and the candor and demeanor of the witnesses, it is, therefore, RECOMMENDED that the Board enter a Final Order suspending the Respondent's registered roofing contractor's license for a period of three (3) months, staying the suspension and placing Respondent on probation for a period of six (6) months under conditions deemed appropriate by the Board. It is further RECOMMENDED that the portion of the Administrative Complaint alleging a violation of Section 489.129(1)(m), Florida Statutes be DISMISSED. Respectfully submitted and entered this 24th day of December, 1987, in Tallahassee, Leon County, Florida. WILLIAM R. CAVE 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 December, 1987. COPIES FURNISHED: W. Douglas Beason, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 Jim Squitiro, Pro Se 1492 Overcash Drive Dunedin, Florida 32528 Fred Seely, Executive Director Construction Industry Licensing Board Department of Professional Regulation Post Office Box 2 Jacksonville, Florida 32201
The Issue Whether or not the Respondent, Charles E. Sullivan, abandoned the construction project of his customer, Otto Kipar at a time when he had received 98 percent of the contract price and completed approximately 75 percent of the job, and whether or not such abandonment constituted a violation of Section 468.112(2)(h), Florida Statutes.
Findings Of Fact This cause comes on for consideration based upon the administrative complaint filed by the Petitioner, State of Florida, Department of Occupational Regulation, Florida Construction Industry Licensing Board, against the Respondent, Charles E. Sullivan, d/b/a Suwannee Roofing Company. The Petitioner is an agency of the State of Florida empowered to administer and regulate those individuals who hold various licenses with the Florida Construction Industry Licensing Board. Charles E. Sullivan, d/b/a Suwannee Roofing Company holds a registered roofing contractor's license and the number is RC 18162. In May 16, 1977, Otto Kipar, a resident of Suwannee County, Florida, entered into a contract for the Respondent to perform certain roofing work and associated to the roofing. The terms and conditions of this contract may be founded in the Petitioner's Exhibit 2, admitted into evidence. The price of the contract was in the amount of $2,500, to be paid by Mr. Kipar in an installment of $2,450 when the roofing was finished and a $50 balance when the chimney was flashed. Among other things, the contract called for the setting of the trusses on the roof, sheeting the roof with plywood, running facia boards, putting up the jack molding and putting on roofing shingles. The work was to be done by Suwannee Roofing, which is owned by the Respondent, Charles E. Sullivan, and all of the materials were to be furnished by Mr. Kipar, with the exception of the shingles and the staples necessary to nail the shingles into the plywood sheeting. The Respondent's employees went to the job site and started to install the roof. On June 24, 1977, Berl Wilson, a building inspector for Suwannee County, Florida, went to the job site and inspected the roof. He determined that the work on the roof was 50 percent completed. He found the trusses up and the sheeting and shingles installed. However, he felt that the roof construction was unsatisfactory and that the roof would eventually fall in. He immediately tried to contact Mr. Sullivan, the Respondent, and was able to speak to him on June 27, 1978. At that point, Mr. Sullivan indicated that he would work the matter out with the owner, Mr. Kipar. In August, 1977, the Respondent hired some individuals to go to the job site and make adjustments to the roof, so that it would structurally meet the necessary building standards of Suwannee County, Florida, and comply with his contract with Mr. Kipar, as to that element. At the behest of Mr. Kipar, the building inspector Wilson returned to the job site in August or September 1977, and discovered that the roof was not shingled over 25 percent to 35 percent of the roof area. In that particular part of the roof, only the felt paper was installed on the sheeting. This caused the roof to fail to meet the Southern Building Code, in terms of requirements of that code. It was also in violation of the contract conditions which called for the Respondent to install the shingles over the entire roof, not just part of it. When confronted with the fact of the incompleted roof, the Respondent told Wilson that he had spent over $600 in trying to make the necessary adjustment to the trusses and that he felt no obligation to spend any other money on the Kipar job. Therefore, the job was left unfinished and when Mr. Wilson saw the job site on March 22, 1978, he found it in the same state as had been indicated in August/September 1977, in that the roof was still 25 percent to 35 percent without shingles. The Respondent and his employees did not return to the job site to complete the roofing and Mr. Kipar had to make those arrangements himself. This abandonment on the part of the Respondent came, notwithstanding the fact that Mr. Kipar, in accordance with the contract had paid the Respondent $2,450 on May 30, 1977, as shown by Petitioner's Exhibit number 3, admitted into evidence. In summary, the Respondent was paid 98 percent of the amount of the contract, which constituted the full amount of payment with exception of $50 for flashing the chimney, and the Respondent abandoned the job when 25 percent to 35 percent of the shingles remained to be installed. This abandonment constitutes cause for disciplinary action in accordance with Section 468.112(2)(h), Florida Statutes, which states: ... (h) Abandonment of a construction project in which the contractor is engaged or under contract as a contractor. A project is to be considered abandoned after 90 days if the contractor terminates said project without notification to the prospective owner and without just cause. Abandonment has been demonstrated here because the Respondent did not work on the roof after the period of August/ September, 1977, and as stated before the roof was missing 25 percent to 35 percent of the necessary shingles at that time. In addition, the Respondent failed to notify the owner of this abandonment and the abandonment was without just cause.
Recommendation It is recommended that the Petitioner, State of Florida, Department of Professional Occupation Regulations, Florida Construction Licensing Board, suspend the Respondent's, Charles E. Sullivan's roofing contractor's license, RC18I62, for a period of one year. DONE AND ENTERED this 29th day of September, 1978, in Tallahassee, Florida. COPIES FURNISHED: Michael Egan, Esquire 217 South Adams Street Tallahassee, Florida 32301 Charles E. Sullivan Suwannee Roofing Company Post Office Box 999 Live Oak, Florida 32060 CHARLES C. ADAMS Hearing Officer Division of Administrative Hearings Room 101, Collins Building MAILING ADDRESS: 530 Carlton Building Tallahassee, Florida 32304 (904) 488-9675
The Issue The Florida Construction Industry Licensing Board (Petitioner herein) seeks to revoke Carroll L. Mozingo's (Respondent herein) license to practice as a registered general contractor based on allegations which will be set forth hereinafter in detail that he diverted funds in violation of Chapter 468.112(2)(e), Florida Statutes. Based upon my observation of the witnesses and their demeanor while testifying and the entire record compiled herein, I make the following:
Findings Of Fact The Respondent is a registered general contractor, who holds current license no. RG0015876. On September 7, 1976, Respondent entered into a contract with Robert Johnson and his wife Sandra Johnson for a room addition and patio to their house located at 197 North Roscoe Blvd., Ponte Vedra Beach, Florida. The full amount of the contract plus agreed upon extras amounted to $9,640.00. (Petitioner's Composite Exhibit Number 2) Respondent applied for and obtained a building permit for the construction of the Johnson's addition on or about September 27, 1976, and construction commenced shortly thereafter. (Petitioner's Exhibit Number 1) Donald Jermaine, a St. Johns County field inspector, testified that he conducted inspections on the subject job and noted numerous violations of the St. Johns County Building Code. He coordinated the inspections for this project up until the time it was abandoned by Respondent during mid February, 1977. At the time of abandonment, the owner, Robert Johnson, had paid a total amount of $11,021.96 to Respondent and/or various suppliers. To complete the job as contracted by the parties (Johnson and Mozingo) Messr. Johnson had to pay Proctors Construction Company $2,800.00, an electrical contractor $369.00 and a plumbing contractor $520.00 for a total expenditure over and above the above referenced contract amount of $3,689.00. He testified that no additional work was done to his home. The Respondent testified that he expended $7,458.00 for materials on the Johnson project and was unable to complete it because his mortgage payments were delinquent and he was not receiving any additional monies from Messr. Johnson to fulfill his obligations. He testified that he was unable to work at night and therefore had to seek other employment with another contractor. The above explanation by the Respondent which led to his abandonment of the subject project does not excuse him from his contractual obligations to either fulfill the contract as agreed upon or to seek a renegotiation based on additional costs and/or unexpected circumstances. This was not done nor was any other explanation given as to where the additional monies in excess of $4,000.00 was spent. I therefore conclude that he engaged in a diversion of funds as alleged in the administrative complaint filed by the Petitioner on May 27, 1977. I shall so recommend.
Recommendation Based on the foregoing findings of fact and conclusions of law, I hereby recommend that the Respondent's general contractor's license be suspended for a period of two years. RECOMMENDED this 2nd day of December, 1977, in Tallahassee, Florida. JAMES E. BRADWELL Hearing Officer Division of Administrative Hearings 530 Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Barry Sinoff, Esquire 1010 Blackstone Building Jacksonville, Florida 32202 C. H. Hoskinson, Chief Investigator Florida Construction Industry Licensing Board Post Office Box 8621 Jacksonville, Florida 32211 Carroll L. Mozingo 1909 Ed Johnson Drive Jacksonville, Florida 32218 ================================================================= AGENCY FINAL ORDER ================================================================= BEFORE THE FLORIDA CONSTRUCTION INDUSTRY LICENSING BOARD FLORIDA CONSTRUCTION INDUSTRY LICENSING BOARD, Petitioner, vs. DIVISION OF ADMINISTRATIVE HEARINGS, DOCKET NO. 77-1095 CARROLL L. MOZINGO dba CARROLL CONSTRUCTION COMPANY, RG 0015876, 1909 Ed Johnson Drive, Jacksonville, Florida 32218, Respondent. /
Findings Of Fact Based upon the record evidence, the Hearing Officer makes the following findings of fact: Martin Gold is now, and has been since July, 1986, licensed by Petitioner as a Registered Specialty Contractor authorized to do painting and waterproofing work in Dade County. He holds license number RX 0051718, which expires June 30, 1989. Since receiving his license he has been disciplined twice by the Florida Construction Industry Licensing Board. Gold is the President of Team Leisure Corp., a construction company, and is also its "qualifying agent." On August 14, 1986, Team Leisure Corp. entered into a written contract with Terry Dudley and his wife, Patricia, in which it agreed, for $12,000, to build a two-room, 27-foot by 13- foot addition to the Dudley home located at 15510 Leisure Drive in Dade County and to install new windows in the existing structure. According to the terms of the agreement, Team Leisure was to do "no painting." In his capacity as President of Team Leisure Corp., Gold hired William Sernaker to directly oversee the completion of the construction work specified in the Dudley contract. At the time, Sernaker was licensed as a general contractor in Dade County. As part of his arrangement with Gold, Sernaker assumed responsibility for ensuring that all work permits and inspections necessary to complete the Dudley project were obtained. On September 4, 1986, Sernaker obtained a building permit for the Dudley project. Thereafter, work on the project commenced. The foundation for the addition was laid and, on September 10, 1989, it passed the inspection of James Tucker, a Dade County building inspector. Fifteen days later, Tucker conducted a tie beam inspection. This phase of the project also received his formal approval. Sernaker obtained a roofing permit on October 14, 1986. The exterior of the roof was inspected by Russell Bergsma, another Dade County building inspector, on October 21, 1986. It too passed inspection. An electrical permit was obtained for the Dudley project on November 17, 1986, by Robins Electric, a subcontractor. When the electrical work was initially inspected by Grant Morse, another Dade County building inspector, it was rejected because there were a "few outlets missing." The record is unclear as to the results of any subsequent electrical inspections. Morse also conducted an inspection of the framing work done on the Dudley project. He did so on or around November 21, 1986. In his view, the framing was "not to code." Accordingly, he left a "tag" at the job site on which he gave the following written explanation for his rejection of the framing work: All window bucks must be tight with caulking, no gaps. When the stucco meets the window frame, it should be set back at approximately a 45-degree angle at a width of one quarter to provide a groove to be filled with caulking. Continuous back bed of caulking must be maintained. A follow-up inspection of the framing work was performed by Bergsma on December 1, 1986. In Bergsma's opinion, while some corrections had been made, deficiencies remained. He therefore issued another rejection. A third framing inspection was conducted on December 3, 1986. Tucker was the inspector who performed this inspection. He approved the work that had been done. Prior to this inspection, Gold had paid another contractor $600 to "redo" the framing. This additional expense was not passed on to the Dudleys. Morse attempted to conduct a final building inspection on December 22, 1989. He was unable to do so, however, because "[n]o one was home." From the outset, Gold kept abreast of the progress that was being made on the Dudley project by communicating with Sernaker. He also visited the job site on at least a weekly basis. Gold also heard from the Dudleys concerning the status of the project. The Dudleys closely monitored the work of Sernaker and his crew. If the work was not done to their satisfaction, they expressed their disapproval to Sernaker and, if he did not rectify the matter, they complained to Gold over the telephone. The following were among the complaints made by the Dudleys: the foundation was not level; the roof did not contain any fiberglass material; the window frames did not fit properly; the wood used for the open beam ceilings had cracks in it and was unsightly; the walls in the den were not level and had cracks in them; the linoleum on the Dudleys' screened-in porch was ripped by workers putting up a wall; the outside stucco was cracking and peeling; and trash was left on the property. An effort was made to address the Dudleys' concerns. For instance, in response to the Dudleys' complaints, a "thin cap" was placed over the foundation to make it level. The roof was redone with fiberglass material. The Dudleys were reimbursed for the linoleum they needed to replace on their porch. A contractor was hired to correct the framing problem. Nonetheless, the Dudleys became increasingly dissatisfied with Team Leisure Corp.. Sometime shortly before January 6, 1987, they became so dissatisfied that they ordered Sernaker and his crew off their property and refused to make any additional payments. Following this incident, Gold met with the Dudleys and attempted to mollify them. This was his first face-to-face meeting with them. He offered to send another contractor to the Dudleys' home to perform the work the Dudleys believed needed to be done to satisfactorily complete the project. The Dudleys accepted this offer. On January 6, 1987, Gold sent the Dudleys a letter which read as follows: As per our mutual agreement, these are the items you requested be taken care of. Once taken care of, you agree to sign completion certificate so we can be funded. COMPLETED (please check upon satisfaction) 1.) Touch up outside windows. 2.) Windows to be locked in. 3.) Walls in den to be taken down and leveled out. 4.) Frame around closet door. 5.) Fix two windows; replace concrete in doors and windows. 6.) Clean up. 7.) Replace vinyl, in rear den. 8.) $100.00 dollars to Mrs. Dudley, for clean-up. 9.) 10 year guarantee- roof and release of lien [sic]. 10.) Concrete over build. 11.) Crack under window sill. 12.) Nail in door frame. 13.) Gaps in drywall bedroom. 14.) Stucco cracking outside. 15.) Electrical inspection. (not to be Mike Charles.) Accepted and Approved: x x After receiving this letter, Mr. Dudley checked all but items 2, 5, 6, 8, and 9 on the letter's "completion certificate." Neither he nor his wife, however, signed this "completion certificate." Although the cracks in the outside stucco had been repaired at the time Dudley checked item 14, the stucco subsequently started cracking again. A final building inspection of the Dudley project was conducted by Tucker on January 13, 1989. The project was "turned down" by Inspector Tucker because it was unpainted. Under their contractual agreement, the Dudleys, not Team Leisure Corp., were responsible for the painting of the project. The painting was not done because the Dudleys noticed cracks reappearing in the outside stucco. On or around March 4, 1987, Mr. Dudley telephoned Inspector Bergsma and asked him to conduct an informal field inspection of the project. Bergsma complied with Dudley's request. When he arrived at the Dudley home, Dudley showed him a "gap on the rear of the house ... where the two roofs are at different levels and come together." Bergsma told Dudley that "[i]t didn't belong there" and that it would have to be eliminated if the structure was to pass a final building inspection. As of the date of the hearing, the structure had not passed such an inspection. Team Leisure Corp. received $10,200 for the work done in connection with the Dudley project. The remaining $1,800 of the $12,000 that the Dudleys were to pay pursuant to the contract was held in escrow by a bank. Ultimately, this $1,800, along with approximately an additional $500 from Team Leisure Corp., was given to the Dudleys as part of a settlement between them and Team Leisure Corp.. The money was to be used by the Dudleys to pay another contractor to complete the project to their satisfaction.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that the Construction Industry Licensing Board enter a final order (1) finding Respondent guilty of contracting outside the scope of his license in violation of Section 489.129(1) (j) , Florida Statutes; (2) imposing a $750 administrative fine upon Respondent for said violation, and (3) dismissing the remaining charges against Respondent set forth in the instant administrative complaint. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 30th day of May, 1989. STUART M. LERNER 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 30th day of May, 1989. COPIES FURNISHED: Elizabeth Alsobrook, Esquire Northwood Centre 1940 North Monroe Street Suite 60 Tallahassee, Florida 323399-0792 Fred Seely Executive Director Construction Industry Licensing Board Post Office Box 2 Jacksonville, Florida 32201 Carlos Garcia, Esquire 8603 Dixie Highway Suite 400 Miami, Florida 33143 =================================================================
