Findings Of Fact At all times here relevant Respondent was licensed as a roofing contractor and qualifying agent and owner of Handyman Service Company, Pinellas Park, Florida. In November or December 1982, representatives of Sandalwood Club Association contacted Richard Fabrizi, who was acting as sales agent for Handyman Service Company, about some repairs desired at their condominiums. Fabrizi advised Respondent and several meetings were held with Sandalwood representatives after which contract proposals for work desired by Sandalwood were presented by Respondent. It became apparent that complete reroofing of the Sandalwood condominiums was needed; however, the association did not have sufficient funds at that time for such a project. As a result of the negotiations a repair contract was entered into between Handyman and Sandalwood Club whereby Handyman contracted to perform certain work for $16,000 (Exhibit 1). At about the time this contract was entered into Pinellas Park became incorporated and established its own building department. Respondent was qualified to perform roofing contracting in Clearwater, in whose jurisdiction Sandalwood was placed before Pinellas Park, but he had not qualified to contract in Pinellas Park. When this was realized, Respondent engaged the services of Edgar Plumtree, a licensed contractor, to pull permits and supervise the roofing at Sandalwood. The permit for this work (Exhibit 2) was signed by Joseph A. Saturno, contractor, but no evidence was presented regarding Saturno or how his name came to appear on Exhibit 2. Expert testimony was presented that the work proposed to be performed in Exhibit 1 constituted much more than repair work; however, Respondent's witness's testimony that the contract was intended by all parties to be a temporary repair, guaranteed for three years, was unrebutted. Expert testimony that the use of 90# mineral-coated roofing material in valleys did not comply with the Southern Standard Building Codes, which has been made applicable to Pinellas Park, was modified on cross-examination by testimony that such material could be used for repairs if approved by the building inspector. The evidence was unrebutted that the building inspector approved the use of the 90# roofing in the valleys. The expert witness further found violation of codes when a coating material was placed over aggregate surface on a flat roof or aggregate was reused without cleaning; however, on cross-examination this witness acknowledged that rerocking was not a code violation if sold as a repair in lieu of new roof. He did not consider the scope of the work shown in Exhibit 1 to be compatible with a minor repair, despite the intent of the parties to so treat this work. The work on the Sandalwood project was completed in March 1983. Sandalwood was in the process of issuing a contract to replace the shingles on their sloping roofs and in May 1983 Respondent met with Sandalwood Condominium Association as one of the bidders was unhappy with the roofing repairs done by Handyman. Due to brittle shingles the tie-ins were unsatisfactory. An appointment was set up with representatives of the Pinellas Park Building Inspector, Sandalwood representatives, and Handyman representatives. Handyman was also bidding on the shingle replacement contract. On May 26, 1983, this meeting was held including the successful bidder (Baker) on the shingle roof replacement contract. The building inspector, Respondent, Baker, and Sandalwood representatives went on the roofs. The building inspector suggested Baker do the tie-ins from the work done by Handyman, for which the latter agreed to pay, but Baker declined. Thereafter, the flashing between the shingle roofs and the flat roofs was installed by Handyman and the shingles by Baker. Exhibit 6 indicates the shingles do not properly cover the flashing. Respondent's testimony that the work performed by Handyman was exactly what Sandalwood requested them to perform was not rebutted.
Recommendation It is RECOMMENDED that Franklin A. Marciano be issued a letter of reprimand for completing a roofing repair contract in a municipality in which he was not licensed. DONE AND ENTERED this 19th day of October 1984 at Tallahassee, Florida. K. N. AYERS Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 19th day of October 1984. COPIES FURNISHED: Charles Tunnicliff, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Frank A. Marciano 11327 43rd Street, North Clearwater, Florida 33520 Fred M. Roche, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 James Linnan, Executive Director Board of Construction Industry Licensing Board Department of Professional Regulation Post Office Box 2 Jacksonville, Florida 32202
Findings Of Fact Based upon my observation of the witnesses and their demeanor while testifying, the documentary evidence received and the entire record compiled herein, the following relevant facts are found. Jesse Bruce, Respondent herein, is a registered roofing contractor and has been issued license No. RC0022948. On September 2, 1981, Respondent entered into a contract to repair a roof at 3684 NW 29th Street, Lauderdale Lakes, Florida, for Ms. Beryl Babb for the sum of $485.00. Respondent admits that he commenced construction under the above-referenced contract without first having obtained a building permit. Respondent was paid in full under the contract by Ms. Babb on September 4, 1981. Pursuant to the terms of the construction contract, Respondent provided for a two-year warranty on the roof repairs. Within an approximate two-month period following the repairs by Respondent, Ms. Babb made repeated phone calls to Respondent's construction company to report complaints that she was having in that the roof and garage appeared to "leak more than it had leaked prior to the repairs." Ms. Babb made at least six telephone calls to Respondent's construction company to no avail. During November, 1981, Ms. Babb filed a civil complaint in small claims court and during January, 1982, Ms. Babb received a judgment against the Respondent for $300.00. 1/ Respondent ahs been a licensed and registered roofing contractor since October, 1974. Respondent acknowledged that he received complaints from Ms. Babb as was testified herein; however, he states that he was busy during the times in which the complaints were made, an further that he did not want to make repairs inasmuch as Ms. Babb had elected to file a civil complaint against him in small claims court. Finally, Respondent acknowledged that he was obliged to return tot he Babb residence to make the repairs inasmuch as the complaints from Ms. Babb came during the two-year period in which the warranty for the roof repairs was in effect.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that the Respondent be placed on probation for a period of six (6) months. 3/ RECOMMENDED this 3rd day of February, 1983, in Tallahassee, Florida. JAMES E. BRADWELL Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 3rd day of February, 1983. COPIES FURNISHED: Michael J. Cohen, Esquire Suite 101, Kristin Building 2715 E. Oakland Park Blvd. Ft. Lauderdale, Florida 33306 Jesse Bruce 721 NW 20th Ave. Ft. Lauderdale, Florida 33311 Mr. James Linnan Executive Director Construction Industry Licensing Board Post Office Box 2 Jacksonville, Florida 32202 Mr. Fred Roche, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301
The Issue The central issue in this case is whether Respondent is guilty of the violations alleged in the amended administrative complaints.
Findings Of Fact Based upon the testimony of the witnesses and the documentary evidence received at the hearing, I make the following findings of fact: At all times material to the allegations, Respondent, Ruth Ogen, was a licensed roofing contractor, license no. CC CO27471. A. R. Ogen Construction, Inc. was qualified by the Department as a roofing contractor. Respondent is the sole qualifier and licensee associated with the company, A. R. Ogen Construction, Inc. Respondent is married to Avraham Ogen who presents himself as the president of A. R. Ogen Construction, Inc. On or about November 9, 1986, A. R. Ogen Construction, Inc. doing business as Ogen Roofing & Waterproofing entered into a contract with Ardee Yuran to replace the entire roof of a commercial structure located at 14951 N.E. 6th Avenue, North Miami Beach (6th Avenue). The contract provided, among other things, that the top row of tiles around the parapet wall would be removed and reinstalled upon completion of the roof. In negotiating the contract described in paragraph 4, Mrs. Yuran was mindful of the work Avraham Ogen had performed at her residence. Mr. Ogen had supervised the reroofing of Mrs. Yuran's residence which had been satisfactorily performed. The residential job had required the removal of the tiles along the parapet wall and Mrs. Yuran expected the same process would be utilized in completing the commercial roof. The purpose intended to be accomplished by removing the tiles was to allow the roofers to extend the roofing materials up the sides of the parapet and over the crest. The roofing material is then sealed to the wall and the tiles replaced. This procedure results in a waterproof barrier so that when rain accumulates on the flat roof (and the water level rises) it cannot seep through the sealed perimeter. During the time Mr. Ogen was negotiating and performing the roof work for the 6th Avenue building, he was also retained to paint the structure (which was to be completed after the roof was finished). There came a time when Mrs. Yuran and Mr. Ogen disagreed regarding aspects of the roof work and the painting that was to be done. Eventually, the parties reached an impasse where neither was willing to concede: Mr. Ogen was not willing to perform the work as specified by Mrs. Yuran, Mrs. Yuran was not willing to pay Mr. Ogen any more on the contracts. At this point, Ruth Ogen, Respondent, had not been involved in the daily work progress made at the site. To make matters worse, a leak developed at the 6th Avenue property which resulted in a waterfall pouring down through the overhang of the building. As a result of the disagreement, both parties retained lawyers and, understandably, the issues escalated. Mrs. Yuran retained three individuals to review the work performed by Mr. Ogen. On March 4, 1987, Walter H. Scott, Scott Roofing & Repair, Inc., determined that water accumulating on the 6th Avenue roof was draining behind flashing which had not been properly sealed to the perimeter walls instead of running through the outlets. Mr. Scott recommended that the flashing be resealed along the wall. Had the tiles been removed and the work been performed as stated in the contract, the leak would have been avoided. A second licensed roofing contractor, Gary Carruth, Falcon Roofing Co., inspected the property on June 23, 1987, and recommended reflashing the walls along the perimeter of the 6th Avenue building. Mr. Carruth observed that the tiles had not been removed along the wall and that the roofing materials had not been properly sealed along the perimeter. James Rodgers, a consulting engineer performed a third inspection of the roof at 6th Avenue on June 25, 1987. According to Mr. Rodgers, several items of the contract work completed by Mr. Ogen were inadequately performed. Mr. Rodgers found that the pitch pans were not installed properly around the air conditioning units and that the flashing along the parapet wall was not properly completed nor performed as described in the contract. Respondent also retained a licensed roofer to review the work at 6th Avenue. Bill Mathews, Bill Mathews Roofing, completed a roof inspection report on November 21, 1988. According to Mr. Mathews, the flashing along the parapet wall required repair because it had been improperly sealed. Mr. Mathews noted that the top row of tile should have been removed so that flashing could have been taken up and over the parapet wall. Mr. Mathews also noted that the flat roof had buckles or "fish mouths" which should have been corrected as the roof was being installed. Mr. Mathews recommended that the flashing be resealed and that the buckles be cut and sealed with membrane and roofing cement. Finally, Mr. Mathews determined that the pitch pans under the air conditioning units should be filled with an asphalt cold process to prevent further cracking and potential leaks. A final inspection report was completed by Robert B. Hilson, Bob Hilson & Company, Inc., on August 18, 1988. Mr. Hilson is a consultant for the Department and made the inspection at the request of its attorney. Mr. Hilson's findings and recommendations mirrored those suggested by Mr. Mathews. The work performed by Mr. Ogen on the 6th Avenue property did not meet the terms of the contract and did not meet performance standards acceptable in the roofing industry. Mr. Ogen failed to properly seal all flashing materials along the parapet wall, failed to correct the buckles or "fish mouths," and failed to meet the contractual obligations (removing the tiles and extending the flashing over the crest). Because of the substandard work, Mrs. Yuran incurred additional expenses and inconvenience. Respondent did not view the 6th Avenue structure either before or during the time that her husband supervised the work performed. Respondent's role with the company was as secretary, bookkeeper, and office manager. Mr. Ogen supervised or performed all work at the 6th Avenue job. Respondent did not supervise Mr. Ogen or the workers under his supervision. "Ogen Roofing & Waterproofing" has not been qualified by the Department as a roofing contractor. On or about April 28, 1987, A. R. Ogen Construction, Inc. was requested to perform a roofing inspection at 1180 N.E. 204 Terrace. The subject property was under contract for sale and was ultimately purchased by Rose Zenar. According to the inspection report filed by Mr. Ogen, the roof and roof covering were in satisfactory condition with no evidence of leaks. Mr. Ogen signed the inspection report as president of A. R. Ogen Construction, Inc., state license no. CC CO27471. During the first rain after she had moved into the house, Mrs. Zenar observed water leaking through the ceiling into the kitchen. She immediately called Mr. Ogen who came out, observed the problem, but did not repair the leak. Mr. Ogen did not return Mrs. Zenar's subsequent calls. Ultimately, she contacted James Rodgers to perform a second roof inspection. As a result of Mr. Rodgers' inspection, Mrs. Zenar discovered that the leak was of long duration as it had completely rotted and decayed the roof rafters and sheathing in the area of the leak. Mr. Rodgers took pictures of the area which clearly showed the discolored wood. Evidence of the discoloration was visible from the attic entrance located in the garage adjacent to the kitchen. Mr. Ogen's failure to discover the rotted roof was due to an inadequate inspection of the crawl space between the ceiling and the roof rafters. It is the normal practice of qualified roof inspectors to examine the crawl space between the ceiling and roof supports. Respondent did not perform the roof inspection at Mrs. Zenar's home, did not supervise the inspection performed by Mr. Ogen, and did not have a checklist of items to be reviewed by him in making the inspection. The erroneous inspection performed by Mr. Ogen resulted in expenses and inconvenience to Mrs. Zenar.
Recommendation Based on the foregoing, it is RECOMMENDED: That the Department of Professional Regulation, Construction Industry Licensing Board, enter a final order finding the Respondent guilty of the violations set forth above and, based upon the penalties recommended by rule, impose an administrative fine against the Respondent in the amount of $3000.00 DONE and RECOMMENDED this 20th day of April, 1989, in Tallahassee, Leon County, Florida. JOYOUS D. PARRISH Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 20th day of April , 1989. APPENDIX RULINGS ON PETITIONER'S PROPOSED FINDINGS OF FACT: Paragraphs 1 through 7 are accepted. With the correction to reflect Mrs. Yuran not Mr. Yuran, paragraph 8 is accepted. Paragraphs 9 through 12 are accepted. Paragraph 13 is accepted. Paragraph 14 is accepted with the correction that the witness' name was Gary Carruth. With the deletion of the last paragraph of paragraph 15 which is rejected as argument or comment, the first five paragraphs of paragraph 15 are accepted. Petitioner is warned not to subparagraph statements of fact or to restate testimony, but to simply set forth the fact deduced from such testimony. Paragraph 16 is rejected as irrelevant or immaterial. Paragraph 17 is accepted to the extent that it finds the reroofing work performed on the 6th Avenue building was a poor quality which was not done under the supervision of a qualified, licensed roofing contractor. Further, it was gross negligence not to properly supervise the job. No conclusion is reached as to whether Respondent is able to supervise a job. Paragraph 18 is accepted. Paragraph 19 is rejected as a recitation of testimony. Paragraphs 20 through 24 are accepted. Paragraphs 25 through 31 are accepted. Paragraph 32 is accepted. Paragraph 33--none submitted. With regard to paragraph 34, the first sentence is accepted. The remainder is rejected as conclusion of law, argument, or comment. Paragraph 35 is rejected as irrelevant. Paragraphs 36-38 are accepted. Paragraph 39 is rejected as comment, irrelevant, or recitation. The first two sentences of paragraph 40 are accepted, the remainder is rejected as comment, conclusion of law, or argument. Paragraph 41 is rejected as irrelevant, conclusion of law, or argument. RULINGS ON RESPONDENT'S PROPOSED FINDINGS OF FACT: Paragraph 1 is accepted. Paragraph 2 is accepted but is irrelevant. Paragraph 3 is accepted. Paragraph 4 is rejected as irrelevant to the issue of whether a competent inspection was performed. Paragraph 5 is accepted. Paragraph 6 is rejected as irrelevant to the issue of whether a competent inspection was performed. Paragraph 7 is rejected as irrelevant or unsupported by the record. Paragraph 8 is accepted. Paragraph 9 is accepted. Paragraph 10 is rejected as contrary to the weight of the credible evidence presented. Paragraph 11 is rejected as argument, speculation, or unsupported by the record. Paragraph 12 is rejected as irrelevant. Paragraph 13 is rejected as argument, irrelevant, or unsupported by the weight of credible evidence. Paragraph 14 is rejected as argument, irrelevant, or comment. Paragraph 15 is accepted but is irrelevant. Paragraph 16 is rejected as argument. Paragraph 17 is accepted but is irrelevant. Paragraph 18 is rejected as irrelevant, argument, or unsupported by this record. Paragraph 19 is rejected as irrelevant. The following are rulings on case no. 88-1776 as submitted by Respondent: Paragraph 1 is accepted. Paragraph 2 is rejected as unsupported by the record. Paragraph 3 is rejected as irrelevant. Paragraph 4 is accepted but is irrelevant, immaterial. Paragraph 5 is rejected as unsupported by the record. Paragraph 6 is rejected as irrelevant, immaterial, or unnecessary. Paragraph 7 is rejected as unsupported by the weight of credible evidence. Paragraph 8 is rejected as irrelevant, immaterial, or unnecessary. Paragraph 9 is accepted but is irrelevant. Paragraph 10 is rejected as irrelevant, immaterial or unnecessary. Paragraph 11 is rejected as irrelevant, immaterial or unnecessary. Paragraph 12 is rejected as irrelevant. Paragraph 13 is rejected as argument or unsupported by the weight of the credible evidence. Paragraph 14 is rejected as contrary to the weight of the credible evidence. Paragraph 15 is accepted but is irrelevant. COPIES FURNISHED: Fred Seely Executive Director Construction Industry Licensing Board Department of Professional Regulation Post Office Box 2 Jacksonville, Florida 32201 Bruce D. Lamb General Counsel Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 Elizabeth R. Alsobrook Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750
Recommendation Based upon the foregoing findings of fact and conclusions of law, it is recommended that the Construction Industry Licensing Board issue a written reprimand to respondent Elias Davis for failure to pull a permit on a roofing job. RECOMMENDED this 5th day of April, 1984, in Tallahassee, Florida. J. LAWRENCE JOHNSTON Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 5th day of April, 1984.
The Issue The issue in this case is whether Respondent committed negligence in the practice of engineering as alleged in the amended administrative complaint filed by Petitioner and, if so, the penalty that should be imposed.
Findings Of Fact Based upon the oral and documentary evidence adduced at the hearing and the entire record in this proceeding, the following findings of fact are made: At all times pertinent to this proceeding, Respondent was duly licensed as a professional engineer in the State of Florida, having been issued license number PE 0023976. In September, 1992, Dade County passed and adopted an emergency ordinance amending the South Florida Building Code to handle the processing of construction permits and inspections created by the devastation of Hurricane Andrew. Section 6(e) of the Emergency Ordinance addressed roof repairs and required a minimum of six nails to be used for each shingle. By early 1993, Dade County Roofing Inspectors were severely overtaxed by the volume of work occasioned by Hurricane Andrew. To ensure more timely inspections, Dade County Officials approved the use of private practice architects and engineers to assist the county in making inspections and affirming code compliance. At all times pertinent to this case, Robert Brombach (the "Owner") was the owner of a residence (the "House") located at 8050 SW 92nd Avenue, Miami, Florida. In March 1993, the Owner hired Hytek Roofing to re-roof his residence because of damage from Hurricane Andrew. The re-roofing job was to begin on March 8, 1993 and was to be completed by March 23, 1993. At all times pertinent to this case, Respondent was employed by All State Engineering & Testing Consultants, Inc. Hytek Roofing hired Respondent in his capacity as a special inspector for Dade County to perform the shingle inspection/final inspection for the re- roofing of the House. The roof of the House had two separate systems. The front and back of the roof were pitched sufficient to hold shingles. There was also a flat deck portion of the roof that had very little pitch. Prior to the repair work at issue in this case, this flat portion was hot mopped and tarred. Pursuant to the 1988 South Florida Building Code which was in effect at the time of this re-roofing job, composition shingles were not to be applied to roofs having an incline of less than 2 1/2 inches per foot. After it completed re-roofing the shingled section of the roof, Hytek contacted Respondent to do an inspection. On March 23, 1993, Respondent conducted a "shingle inspection/final inspection" of the roof and prepared a Daily Field Inspection Form (the "Inspection Form".) Respondent's Inspection Form states, "JOB DESCRIPTION: The entire roof completed as per the codes and specifications...INSPECTION RESULTS: Placement of shingles comply [sic] with the New South Florida Building Codes [sic] and Requirement." Respondent submitted his Inspection Form to the Metropolitan Dade County Building & Zoning Department. Subsequent to Respondent's inspection, Hytek Roofing applied shingles to the flat deck portion of the roof. After applying the shingles on the flat roof, Hytek contacted Dade County building officials to conduct a roof inspection. At all times pertinent to this proceeding, Manuel Jimenez was a Metropolitan Dade County Building & Zoning Department Roofing Inspector. On March 31, 1993, Jimenez conducted an inspection of the House's roof. During his inspection, Inspector Jimenez performed a spot check of the roof on the front part of the House. All of the 20-30 shingles he examined in the selected area did not comply with the six nail Dade County code requirement. In fact, all of them were found to contain only three (3) nails a piece. In addition, some of the nails were above the tar strip. Jimenez also noted that the back of the roof did not appear to be properly laid. The back roof shingles were not laid in accordance with the manufacturer's recommendations nor were they straight. After spot checking the front and back of the roof, Inspector Jimenez noticed the shingles on the flat portion at the rear of the House. Using a level, Inspector Jimenez measured the "pitch" on the flat roof as "one and one- quarter to twelve" instead of the code required minimum of "two and one-half to twelve." He concluded that the roof was in violation of the code because shingles were used on the flat roof which did not have an adequate pitch. On April 1, 1993, Jimenez issued a Summons to Hytek Roofing noting the above violations and requiring corrections including the re-nailing of shingles below the tar strip with six (6) nails per shingle, and the removal of the shingles from the flat roof. The county also required that the back of the roof be replaced. The Metro Dade Building & Zoning Roofing Inspections Checklist requires a shingle inspection to include an inspection of the tie-in to any flat roof. Because the flat deck portion of this roof was in the back, Respondent should have looked at the back of the roof in order to inspect the tie-in to the flat deck. Respondent introduced a number of form documents which reflect language used in the industry by Special Inspectors when certifying the completion of construction work. The standard language on those documents provides that by filling in the designated blanks, the Special Inspector asserts that the work, to the best of his knowledge or belief and professional judgment, is in substantial accordance with the approved plans and the South Florida Building Code. Respondent's Daily Field Inspection report was prepared on his company's letterhead, not a form document and contained Respondent's statement that the entire roof had been completed as per the codes and specifications. Respondent's report did not contain the qualifying language set forth on the forms presented at the hearing. In other words, Respondent did not qualify his statement or state the extent of his investigation leading to that statement. After considering all the evidence, it is concluded that Respondent's inspection was insufficient and that the conclusions set forth in his report were inaccurate. Moreover, at least some of the Code Violations cited by the county should have been detected by a reasonable inspection. Consequently, it is concluded that Respondent failed to utilize due care in the performance of his engineering duties.
Recommendation Based upon the foregoing, it is RECOMMENDED: That the Board of Professional Engineers enter a Final Order finding Alberto Ramirez guilty of violating Section 471.033(1)(g), Florida Statutes, as alleged in the Amended Administrative Complaint. As a penalty for the violation, impose an administrative fine of one thousand ($1,000.00) dollars, issue a reprimand, and place the license of Alberto Ramirez on probation for a period of two (2) years with such reasonable terms as may be imposed by the Board. DONE AND RECOMMENDED this 24th day of July, 1995, in Tallahassee, Leon County, Florida. J. STEPHEN MENTON Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 24th day of July, 1995. APPENDIX TO RECOMMENDED ORDER, CASE NO. 94-4312 Rulings on the proposed findings of fact submitted by the Petitioner: Adopted in substance in findings of fact 1. Adopted in substance in findings of fact 4. Adopted in substance in findings of fact 8. Adopted in substance in findings of fact 5. Rejected as unnecessary. Adopted in substance in findings of fact 5. Adopted in substance in findings of fact 7. Adopted in substance in findings of fact 6. Adopted in substance in findings of fact 11. Adopted in substance in findings of fact 12. Adopted in substance in findings of fact 13. Adopted in substance in findings of fact 14. Adopted in substance in findings of fact 16. Adopted in substance in findings of fact 17. Adopted in substance in findings of fact 18. Adopted in substance in findings of fact 2. Adopted in substance in findings of fact 9. Adopted in substance in findings of fact 18. Rejected as unnecessary. Rejected as unnecessary. Adopted in substance in findings of fact 19. Adopted in substance in findings of fact 21. Adopted in substance in findings of fact 21. Subordinate to findings of fact 25. Adopted in substance in findings of fact 22. Adopted in substance in findings of fact 22. Adopted in substance in findings of fact 23. Adopted in substance in findings of fact 24. Rejected as a summary of testimony rather than a finding of fact. The subject matter is addressed in Findings of Fact 25 and in the Conclusions of Law. Rejected as a summary of testimony rather than a finding of fact. The subject matter is addressed in Findings of Fact 25 and in the Conclusions of Law. Rejected as a summary of testimony rather than a finding of fact. The subject matter is addressed in Findings of Fact 25 and in the Conclusions of Law. Adopted in substance in findings of fact 25. Rulings on the proposed findings of fact submitted by the Respondent: Adopted in substance in findings of fact 1. Rejected as unnecessary. Adopted in substance in findings of fact 2. Adopted in substance in findings of fact 3. Adopted in substance in findings of fact 4 and 5. Adopted in substance in findings of fact 8. Adopted in substance in findings of fact 5. Adopted in substance in findings of fact 10. Adopted in substance in findings of fact 11 and 12. Subordinate to findings of fact 25. Rejected as unnecessary and subordinate to findings of fact 25. Adopted in substance in findings of fact 12. Subordinate to findings of fact 25. Adopted in substance in findings of fact 14. Adopted in substance in findings of fact 15. Adopted in substance in findings of fact 16 and 17. Adopted in substance in findings of fact 18. Subordinate to findings of fact 19. Adopted in substance in findings of fact 20. Adopted in substance in findings of fact 20. Adopted in pertinent part in findings of fact 21. COPIES FURNISHED: Angel Gonzalez Executive Director Dept of Business and Professional Regulation Board of Professional Engineers 1940 North Monroe St, Suite 60 Tallahassee, FL 32399-0792 Lynda L. Goodgame General Counsel Dept of Business and Professional Regulation 1940 North Monroe Street, Suite 60 Tallahassee, FL 32399-0792 Charles F. Tunnicliff Chief Attorney Dept of Business and Professional Regulation 1940 North Monroe St, Suite 60 Tallahassee, FL 32399-0792 Reydel (Sonny) Santos, Esq. Inter-American Law Center 10753 SW 104th Street Miami, FL 33176-8842
Findings Of Fact At all times relevant to this proceeding, Respondent held a registered roofing contractor's license Number RC 0030261 issued by Petitioner and did business under the name of Jim's Painting and Roof Repairs in Cocoa Beach, Florida. On or about May 22, 1984, Rick Callahan, d/b/a Rick Callahan Roofing (Callahan) contracted with Dan Risken to reroof his residence located at 1765 Sandbar Drive, Merritt Island, Florida. On May 23, 1984, Respondent obtained building permit No. 16543-C from the Brevard County Building Department for reroofing the Risken residence at 1765 Sandbar Drive, Merritt Island, Florida. Callahan performed the reroofing work on the Risken residence located at 1765 Sandbar Drive, Merritt Island, Florida, without any supervision by Respondent and received payments under the contract in the amount of $2,000.00, $1,000.00, and $735.00 on May 21, 25, and 26, 1984, respectively. No moneys were paid to Respondent by Dan Risken under the contract with Callahan for reroofing his residence. On or about September 10, 1984, Respondent contracted with A1 Notary for the construction of a roof on an office building located at 375 South Courtney Parkway, Merritt Island, Florida, for a contract price of approximately $2,500.00 and on September 10, 1984, obtained a permit No. 16867-C from the Brevard County Building Department for the roofing work at 375 South Courtney Parkway, Merritt Island, Florida. Respondent subcontracted the roofing work on the A1 Notary building at 375 South Courtney Parkway in Merritt Island to Callahan and on September 28, 1984, Callahan was paid the contract price of $2,500.00 by the A. C. Notary Company for the roofing work. At all times pertinent to this proceeding, Rick Callahan did not have a certificate of competency to do roofing work and was not qualified in Brevard County to obtain a permit to do roofing work himself. Additionally, during the period of time pertinent to this proceeding, Rick Callahan was not licensed by the Construction Industry Licensing Board (Board) as a roofing contractor. Subsequent to the time pertinent to this proceeding, Rick Callahan was issued a certificate of competency by Brevard County and was licensed as a roofing contractor by the Board. Respondent's only involvement in the Risken job was to obtain a permit to allow Callahan to do the roofing work. Although Respondent contracted with Notary for his roofing work, the more credible evidence shows that the only reason for Respondent's involvement with the Notary job was to obtain a permit to allow Callahan to do the roofing work. On or about November 28, 1984, Robert J. Connors, d/b/a Connors' Home Repair, Painting and Roofing, Inc. (Connors) contracted with Richard McLain to reroof his residence at 1080 South Orlando Avenue, Cocoa Beach, Florida, for a contract price of $2,535.10. On November 30, 1984, Respondent obtained building permit No. B7547 from the City of Cocoa Beach Building Department for reroofing the residence at 1080 South Orlando Avenue, Cocoa Beach. Connors performed the reroofing work at the McLain residence and received payments for work performed from Richard McLain in the amounts of $1,535.00 and 01,035.00 on November 29, 1984, and December 6, 1984, respectively. On or about December 31, 1984, Connors contracted with Tom Eddie to reroof his residence at 118 LaRiviere, Cocoa Beach, Florida, for a contract price of $3,795 74. On January 8, 1985, Respondent obtained building permit No. B-7592 from the City of Cocoa Beach Building Department for the reroofing work to be performed on the Eddie residence at 118 LaRiviere, Cocoa Beach, Florida. Connors performed the reroofing work on the Eddie residence. Although Connors testified that Respondent supervised the McLain and Eddie jobs, the more credible evidence is that he was not involved in the supervision of those jobs but was only involved in obtaining the permits for Connors and Connors reciprocated by helping Respondent on some of his roofing jobs. At no time relevant to this proceeding did Connors have a certificate of competency, nor was he qualified in Brevard County to obtain a permit to do roofing work himself. Additionally, at no time relevant to this proceeding was Connors licensed by the Board as a roofing contractor. On January 7, 1985, Art Arnone contracted with Jack Poe to perform roofing work at the Brentwood Apartments, located at 351 Woodland Avenue, Cocoa Beach, Florida, for a contract price of $6,575.00. Since Art Arnone did not have a State of Florida roofing contractor's license or a certificate of competency in Brevard County and was not qualified in Brevard County to obtain a permit to do roofing work, Respondent asked Art Arnone to get Jack Poe to sign a contract with Respondent instead of Art Arnone for the roofing work on the Brentwood Apartments. On January 4, 1985, Respondent contracted with Jack Poe for the roofing work on the Brentwood Apartments for a contract price of $6,500.00. On the request of Art Arnone, Jack Poe listed Art Arnone as the subcontractor on the job. On January 7, 1985, Respondent obtained a permit from the city of Cocoa Beach Building Department to do the roofing work on the Brentwood Apartments. Art Arnone performed the roofing work on the Brentwood Apartments and there is sufficient evidence that Respondent did supervise Art Arnone while performing this work. Jack Poe arranged for payment under the contract in two installments of $3,280.00 and $3,215.00. Although the first cashier's check of $3,280.00 was made payable to Art Arnone and dated January 4, 1985, it was not given to Art Arnone until January 11 or 12, 1985. Respondent not require the cashier's check to be reissued in his name because Art Arnone was to use the proceeds to pay for supplies used on the job. The second check of $3,215.00 was made payable to Respondent and delivered on January 16, 985. At all times pertinent to this proceeding, Respondent was aware that Rick Callahan, Robert J. Connors, and Art Arnone did not possess certificates of competency from Brevard County or possess roofing contractors' licenses issued by the Board and, therefore, were not qualified to obtain permits to perform roofing work in Brevard County, Florida. By ordinance, the City of Cocoa Beach requires that a person meet all the local requirements for certificate of competency and licensure by the state in order to be qualified to obtain a building permit. By ordinance, Brevard County requires that a person have a certificate of competency from Brevard County, unless certified by the state, and be licensed by the Board in order to be qualified to obtain a permit in Brevard County. Rick Callahan, Robert J. Connors, and Art Arnone were not certified roofing contractors. Although Respondent may have used Rick Callahan, Robert J. Connors, and Art Arnone on a job on occasion, they were not employees of Respondent. There were no complaints about the quality of the work performed by Rick Callahan, Robert J. Connors, or Art Arnone. In fact, Jack Poe was complimentary of the work performed by Art Arnone. Respondent was disciplined by the Board on October 29, 1984, for an earlier violation of Section 489.129(1)(e), Florida Statutes, in October 1983.
Recommendation Based on the findings of fact and conclusions of law recited herein, it is recommended that the Construction Industry Licensing Board enter a Final Order finding Respondent guilty of violating Section 489.129(1)(e), Florida Statutes, and for such violation it is recommended that the Board suspend Respondent's contracting license for a period of three (3) months. It is further recommended that all other charges be dismissed.. Respectfully submitted and entered this 4th day of April, 1986, in Tallahassee, Leon County, Florida. WILLIAM R. CAVE, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 4th day of April, 1986. COPIES FURNISHED: W. Douglas Beason, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Mr. James L. Muller 1520 Bayshore Drive Cocoa Beach, Florida 32931 Mr. Fred L. Seely Executive Director Department of Professional Regulation Construction Industry Licensing Board Suite 504 111 East Coast Line Drive Jacksonville, Florida 32202 Fred Roche, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 ================================================================= AGENCY FINAL ORDER ================================================================= STATE OF FLORIDA DEPARTMENT OF PROFESSIONAL REGULATION CONSTRUCTION INDUSTRY LICENSING BOARD DEPARTMENT OF PROFESSIONAL REGULATION, Petitioner, CASE no. 52999 DOAH CASE NO. 85-2195 JAMES L. MULLER, License No. RC 0030261 Respondent. /
Findings Of Fact At all times pertinent to the allegations obtained herein, Respondent was a registered building contractor holding license number RV0010136 issued by the State of Florida. His address was Route 4, Box 48-M, Lake City, Florida. On April 4, 1982, Respondent entered into a contract with Michael D. Allen of Route I, Box 453, Live Oak, Florida, for the construction of a single- family residence on the Allen property for a contract price of $75,476. The contract was finished sometime in January 1983, and the Allens moved in that month. During some high winds shortly after they moved in, several shingles blew off the roof, exposing the underlying tar paper. The next day after the storm, Allen went out and saw approximately three or four shingles on the ground. When he picked them up and looked at them, he saw that they had no nail holes or staple holes in them. Allen immediately pulled his tractor up to the house and stood on the seat so he could take a close look at the roof. When he did so, he found that he could not see a nail, staple or hole in the roof where these particular shingles had come from. In addition to that area denuded of shingles by the storm, Allen also lifted up a few other shingles and found what to him was evidence of improper installation. As a result, Allen went to a building supply house in the area and bought a package of the same shingles previously installed on his house by the Respondent in order to get the nailing instructions that came with them. Allen bought the shingles from the same supply house where Respondent had purchased the ones installed on his property. After examining the instructions which came with the shingles he purchased, Allen then called the office of the building inspector and spoke with the Chief Building Inspector, Mr. Pat Sura, who came out to inspect the roof. Allen went up on the roof with Sura and lifted several shingles in different places to see how they were affixed. In most cases, he found two staples in each shingle, but in some cases he found none. Of the 20 or so tabs he lifted (each shingle having three tabs), he found that some, but not many, were nailed in three places. Sura confirms the fact that he was called by Allen. After the call, Sura checked his files and found that the permit for construction of the house was issued to Allen with Respondent listed as the contractor. When the complaint came in from Allen, Sura asked Mr. Cherry, a Department investigator, to go out and look at it with him, as is his standard practice. Sura does not recall exactly when this was done, but it was shortly after the call from Allen. Sura went up on the Allens roof with Cherry and pulled up a few tabs to look for the nailing pattern. He found that the nailing pattern was misaligned, that a stapling gun was used, and that both staples and nails were, in his opinion, too short. Based on this viewing, Sura called a Mr. Canepa, who was a representative of the shingle manufacturer at the time, and asked him to inspect the roof himself. Canepa also found both nails and staples and pulled at least one of each out of the roof. He did not take many, however, because most of the shingles had only one or two fasteners per shingle. The ones that were pulled, however, were pulled from shingles that had four nails or staples in them. Sura also went into the attic on the first visit with Cherry and examined the roof from the inside. He found very few staples or nails protruding through the inside of the subroof. Approximately 40 percent of the nails were not showing through. Based on his examination, Sura concluded that approximately 70 percent of the shingles were not properly fixed, having three or less fasteners per shingle. Only 30 percent had four. These figures were based on spot samples from different sections of the roof. In Sura's opinion, it appeared to him that the staple gun used to apply the staples was out of order. The top of the staple is supposed to be horizontal to and flush with the top surface of the top shingle. Many of the staples and nails which he observed were not horizontal. In some cases, the cross piece on top of the staple extended as much as an eighth of an inch above the tab and had not been hammered down. In Sura's opinion, at least 70 percent of the staples he examined were in that condition. Unless the staple is flush with the roof, the result is that the staple does not go in far enough and also makes a raised area on the shingle. According to the standards of the National Asbestos Roofing Manufacturer's Association (NARA), either nails or staples are supposed to be inserted below the glue tab on the shingle approximately five-eights inch above the top of the cut-out. A fastener is supposed to be above the top of the cutout and on each end. This would result in four fasteners per shingle. Sura found that in most cases the fasteners were on the glue tab or above it, very few were below it. An examination of 24 separate shingles revealed that those which had four fasteners were either crooked, raised or in the wrong place and, of these, 40 percent were in the wrong place. The building code of Suwannee County does not contain detailed specifications of how shingles are to be installed. The code refers to other specifications, such as the NARA standards, and incorporates them by reference. On one of the visits Sura made to the Allen home, the Respondent was also present with at least one of his sons. At Sura's request, Respondent or his son gave Sura some staples which he said are the type used on this job. However, Sura's examination revealed that these staples are not like the ones he took out of the roof. The staples used in the roof were three- quarter inch staples. Sura contends the ones given him by the Respondent were one-inch staples. At the hearing, Respondent and both his sons testified that they used three-quarter inch staples and did not give Sura one inch staples. The likelihood is that the proper sized staples were used. The roofing of the Allen house was accomplished by using a one-half inch plywood decking (actually 15/32 inch). A sheet of felt is laid over the decking and the shingles laid over the felt. In some cases, the fastener is driven through all of that plus an additional tab as well. As a result, the fact that no staple or other fastener was protruding through into the attic is not necessarily pertinent, and the use of a three-quarter inch staple could be acceptable if it was installed properly. As to the flush nature of the staple, a slight variance is accepted. It was recognized that it is impossible to get an exactly flush installation. The degree of acceptable variance is a subjective call, however. The staple that was removed by either Sura or Canepa (there is some uncertainty as to who pulled the staple but no uncertainty that one of the two actually accomplished that task) was protruding approximately one-eighth inch above the surface of the shingle. Gordon K. Perry, Respondent's son and employee, worked on the Allen house as the roofer. He, another brother, and a third employee worked as a team to install the roof, with his brother on the lower line, himself in the middle, and the other employee-on the upper line. As he and his associates laid the shingles, Perry, as the man in the middle, affixed them to the roof with a stapling gun. Perry indicates that he installed the shingles exactly as called for in the instructions contained on the wrapper around the shingles as they come from the manufacturer. Perry contends he used four staples to each shingle, and always does, but admits he might have missed one once in a while. Perry tried to affix the staples so they are flush with the shingles, but admits he might have missed one once in a while. If the gun misfires and leaves it protruding above the shingle, he and his team members all had hammers with which they would hammer the protruding staple down flush with the shingle. He contends he had no trouble installing this roof and that the gun he used was working properly. This testimony was confirmed by that of the other son, Frederick L. Perry, who also indicated that the crew followed the instructions on the wrapper for the installation of the shingles with one exception at the corner a staple was driven through two shingles instead of one. This procedure would however, in his opinion, at least meet the requirements and he feels even exceed them. He observed the way his brother was stapling the shingles on the Allen roof and could see nothing wrong with the procedure followed. His father, the Respondent, came to the job site frequently during the three days it took to install the Allen's roof and actually came up on the roof to observe but did not do any of the actual installation work. He explains the reason for the four or five loose shingles dislodged by the wind as being the result of the air hose for the staple gun getting caught under the tabs of these several shingles while the crew was working with the gun on the other side of the roof. When Mr. Perry observed what had happened he told the employee to go back to that area, put the tabs down and tack them down. Unfortunately, he did not check to see if that was done. He subsequently found out that the employee put the tabs back down but did not affix them as instructed. When he, on this later occasion, checked this area, he saw that where the shingles had broken loose, the nails were still in the roof and the felt was still there. Finding some broken shingle pieces on the lawn, he used them to make a temporary patch for the roof fully intending to report this situation to his father immediately. He did not have an opportunity to make the permanent repair did not feel he should do so without his father's instructions. Not withstanding his father's knowledge of the situation, he received no instructions from his father to make the repairs. The final and permanent repair was accomplished approximately a week prior to the hearing after the granting of the first continuance. On that occasion when he checked the other shingles, Perry found four staples in every shingle that he checked and they were, for the most part, properly flushed. Ron W. Williams, a building contractor registered in Lake City and coincidently a member of the Board of County Commissioners, also examined the Allen's roof on June 19, 1984. Independently he went up on the roof, pulled back tabs and looked at the shingles and their method of affixing in five different locations on the roof. He could see nothing wrong with how the shingles were installed and attempted to pull several staples using a pair of pliers and screwdriver. The difficulty he experienced in extracting the shingles is, in his opinion, an indication of how well they were installed. None that he saw were raised up. Some were at a permissible angle. Mr. Williams found anywhere from 7 to 8 staples in each shingle consisting of 3 or 4 staples across the top of each shingle plus fasteners from the higher shingle as well. In his opinion the roof looked good. The lines were straight, there was no waving. He could see no indication of any problem with the shingles or of weakness or that the shingles would be subject to wind removal. Another contractor who made his inspection at the same time was D. B. Espenship, a 35 year building contractor in Lake City, who has during his career constructed in excess of 500 homes. Mr. Espenship also independently went to 5 or 6 different areas on the Allen roof and pulled up the shingle tabs. He saw nothing to indicate any problems with the way the shingles were applied. The roof looked good, the lines were straight, staples flush and the angles not bad. David Morgan, a licensed roofing contractor in Lake City for more than 15 years does mostly residential roofing including shingles. On the same date as the others described, supra, he also went up on the roof .and watched Mr. Williams do his inspection. He also did his own inspection as well. When Mr. Morgan lifted the tabs he saw the staples and could see nothing to indicate that they were improperly installed. He could see no code violations nor could he see any potential problems. The roof was in excellent shape. In fact, "about as good as you could get." Mr. Perry, Respondent, first learned of the problems with the Allen roof when he was contracted by Mr. Cherry to go out and look at it. This was shortly after the storm which removed the shingles. Cherry asked Respondent to meet with Mr. Allen and Mr. Sura at the premises. When he arrived, no one showed up. However, at approximately a half hour later, Mr. Sura came up without Mr. Cherry. Mr. Sura would not go up on the roof. He said that at that time it was "out of his hands". The matter was in the hands of Mr. Allen and Mr. Cherry. In any case, Respondent went up on the roof as requested and lifted several shingles, but could find no problem. Thereafter, when Respondent called Mr. Cherry, Cherry said he would have to talk to Mr. Sura about it. Mr. Sura indicated he would ;nail respondent a copy of Mr. Canepa's report, but he never received it. In fact until he got the administrative complaint through the mail, he contends he could never get a straight complaint from anyone. He tried to get together with Mr. Allen on several occasions, but in his opinion, could not seem to satisfy him. Respondent also went up on the roof June 19 to make another inspection. At this late date, even in light of the administrative complaint he can still find nothing wrong with the roof. The lines are straight, the proper number of staples are installed and they are installed properly. The roof is in his opinion good and he, on the record, guaranteed to replace it if, with the exception of tornado damage, the roof blows off within the next 18-20 years. Mr. Perry has been a building contractor since 1966. He does all types of construction including the construction of between 300 and 400 homes over the years. Normally he does all the work within the firm. If they are very busy however, he subcontracts some. In this case, the Allen home was built "in-house" and he, himself, worked along with his workmen. He is, in addition to being a contractor, an ordained minister in the Baptist church in Lake City and has been so for the past 20 years. He does not know Mr. Canepa and knows of no reason Mr. Canepa would have to lie. The same is true of Mr. Sura. He feels that both individuals just did not examine the roof closely enough. He contends they are mistaken in their description of the roof's condition. Mr. Sura contends that the building code in this case was violated by respondent in the following particulars; violation of the provisions of the Southern Standard Building Codes: The use of 3 or less fasteners; Placing the nails or fasteners either on or above the glue tab, Failure to have the tops of the fasteners flush with the surface of the shingle; and Failure to have the top of the staple parallel to the shingle line. All these defects were brought to the attention of the Respondent in August, 1983. No corrective action was taken until one week prior to the hearing. On balance, considering the relative probabilities and improbabilities of the testimony of the witnesses and their interest in the outcome of the proceedings, or their lack thereof, it is found that Respondent, through his roofing crew, improperly installed a large number of shingles on the Allen roof.
Recommendation Based on the foregoing, it is, therefore. RECOMMENDED That Respondent, Fred Perry, be reprimanded and pay an administrative fine of $1,000.90 which fine shall be remitted up a positive showing by affidavit of the owner or County Building Inspector that the roof defects have been corrected. DONE and RECOMMENDED THIS 10th day of August, 1984, in Tallahassee, Leon County, Florida. ARNOLD H. POLLOCK 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 10th day of August, 1984. COPIES FURNISHED: Douglas A. Shropshire Staff Attorney Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 (904) 488-0062 Terry McDavid Post Office Box 1328 Lake City, Florida 32056 Fred Roche, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 James Linnan, Executive Director Department of Professional Regulation Construction Industry Licensing Post Office Box 2 Jacksonville, Florida 32202 =================================================================
The Issue Whether Respondent, Glenn V. Curry, committed the offenses alleged in the Administrative Complaint and, if so, what discipline should be imposed against Respondent's roofing contractor's license.
Findings Of Fact At all times pertinent to this proceeding, Respondent, Glenn V. Curry, was a certified roofing contractor having been issued license C-3810. During times material hereto, Respondent was the qualifying contractor for Economic Roofing Company, 2538 Surinam Court, Holiday, Florida. On or about December 27, 1995, Connie Socash, an investigator with the Pinellas County Construction Licensing Board, observed two individuals performing roofing work on the structure located at 2024 Cleveland Street in Pinellas County, Florida. Adjacent to the Cleveland Street property was a truck from which the individuals were working. Affixed to the truck was a magnetic sign with the words "Economic Roofing" printed on it. When approached by Ms. Socash, the two people performing the roofing work stated that they were subcontractors for Economic Roofing. One of the individuals performing the roofing work identified herself as Bonnie Sargent. However, neither of the individuals provided Investigator Socash with a roofing contractor's license or license number. After determining that Petitioner had not issued a roofing contractor's license to Bonnie Sargent, Investigator Socash issued a citation to the person identifying herself as Bonnie Sargent. The citation was issued to Ms. Sargent for subcontracting and performing "roofing work without a competency license as required by law." The citation, which was signed by Ms. Sargent, listed the following two options that were available to her: (1) pay a fine of $125.00 within a specified time period; or (2) appear at the Pinellas County Misdemeanor Courthouse on January 19,1996. Ms. Sargent chose the first option and paid the fine of $125.00 on or about January 9, 1996. After issuing the citation to Bonnie Sargent, Investigator Socash contacted Respondent regarding the Cleveland Street roofing project. Respondent refused to cooperate with Investigator Socash and failed to provide her with any information regarding the relationship of Bonnie Sargent to Economic Roofing. Prior to this case, Respondent has not been the subject of any disciplinary action by the Pinellas County Construction Licensing Board.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Pinellas County Construction Licensing Board enter a Final Order: Finding Respondent, Glenn V. Curry, guilty of violating Section 489.129 (1) (e), Florida Statutes, and Chapter 89-504, Section 24 (2) (d), (e), (j), and (m), Laws of Florida as alleged in the Administrative Complaint. Imposing an administrative fine of $750.00. Suspending Respondent's roofing contractor's certificate for one year. Such suspension may be stayed subject to terms and conditions prescribed by the Pinellas County Construction Licensing Board. DONE and ENTERED this 27th day of August 1996, in Tallahassee, Florida. CAROLYN S. HOLIFIELD 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 27th day of August, 1996. COPIES FURNISHED: William J. Owens Executive Director Pinellas County Construction Licensing Board 11701 Ulmerton Road Largo, Florida 34643-5116 Glenn V. Curry 2538 Surinam Court Holiday, Florida 34691 Howard Bernstein, Esquire County Attorney's Office 315 Court Street Clearwater, Florida 34616-5165
The Issue Whether respondent's license should be revoked, suspended or restricted, or whether an administrative fine should be levied against him, or whether he should be reprimanded for the reasons alleged in the administrative complaint?
Findings Of Fact James M. McCurley is a registered roofing contractor, holding Florida License No. RC 0042226. Licensed in Florida since 1982, Mr. McCurley has been in the roofing business for 25 years all told. Although he holds a state license, he is registered to do roof projects in Broward County only, 82-3201-R-R. Thomas v. Shoop, a real estate broker, manages the Mayani Biscayne Condominiums in Miami at 5995 Biscayne Boulevard, (Mayan) and the Camelot South Apartments on 17th Street in Fort Lauderdale (Camelot), which consist of three buildings (A, B and C). Above Camelot B's roof, which "is not properly set up for drainage at all," (T. 183), loomed a leaking water tower, which has only recently been fixed. In the summer of 1983, all four buildings' roofs leaked; and the roofer who had given long-term guarantees on Camelot's roofs had gone bankrupt. An associate of Mr. Shoop knew one John Emig, who was a salesman for Mr. McCurley. Messrs. Shoop and Emig visited the roofs and discussed the problems. In order to "mak[e] sure that they got a reputable roofer. . . [Mr. Shoop] did great deal of research with a list . . . [of] people that [Mr. McCurley] had done work for and were satisfied." (T. 16). Through Mr. Emig, Mr. McCurley offered to replace the 8,000-square-foot roof on Camelot B for $25,000. Further conversations eventuated instead in an agreement, reduced to a separate writing with respect to each Camelot building, Petitioner's Exhibit No. 2, that called for Mr. McCurley to repair, clean and paint the root and soffits of the three Camelot buildings. The contract for Camelot A characterized the work both as restoration and as preventive maintenance. Repairs were to be effected "as needed." The contracts recited the roofing contractor's "opinion [that] the following maintenance work should put this roof and mansard in the best possible condition, and that it reasonably can be expected to have up to a five year service life." Petitioner's Exhibit No. 2. The agreements specified installation of a total of 35 vapor pressure release vents and stated that Mr. McCurley was to: Check and reseal where needed all pitch pockets, using 10-year rubberized elastomers. . . . Remove all blistering coating from the roof decks and at all such spots install a repair patch. Repair any bulges or blisters and treat all cracks as needed using elastomeric and waterproofing membrane. Petitioner's Exhibit No. 2 The contracts were typed on printed forms. When Mr. Emig and Mr. Shoop signed the roofing contracts on August 24, 1983, Mr. McCurley was not present. At the time the agreements were signed, "3 was substituted for "1" in the phrase, "The above work . . . carries with it our 1 year Pree Service Guarantee should any leak occur . . ." Petitioner's Exhibit No. 2. Unchanged was a typewritten paragraph on each contract stating: In this particular situation our warranty shall be a one year unconditional one, which is standard procedure in the industry. Petitioner's Exhibit No. 2. Although Mr. Shoop dealt primarily with Mr. Emig in negotiating the contract, Mr. Shoop and Mr. McCurley went up on a roof together at one point before the contracts were signed. On September 20, 1983, an addendum to the contracts, calling for work on the buildings other than roofing, was executed. The contract price for the roofing work was less than 40 cents per square foot. The roofs in the Camelot complex were built-up tar and gravel, coated with a cementitious fill. Ordinarily insulation lies underneath a built-up roof of this kind. The vapor pressure release vents were proposed and contracted for on the assumption that insulation underlay the tar, insulation which permitted lateral movement of water and water vapor trapped by the tar and cementitious fill. Pressure attendant on vaporization of water trapped underneath the tar and fill is the apparent cause of the cracking and blistering that led to the leaks. In installing the first vapor pressure release vent, Mr. McCurley discovered that the tar had been placed directly on the roof sheathing. He explained to Mr. Shoop that there was no good reason to go forward with installation of the other vents because the impermeability of tar and fill precluded lateral movement of moisture and, therefore, its escape in any significant quantity through the vents. Mr. Shoop insisted, however, that all the vents called for by the contract go in, and Mr. McCurley complied. The vents stood useless (T. 99) but firmly affixed to the roof as recently as five or six months before the hearing. (T. 94) Thereafter, many were dislodged by the contraction and expansion of the roof, aggravating the leakage problems. To meet the contract requirement of an "elastomeric and waterproofing membrane," Mr. McCurley employed a coating he had never used before, but one which was advertised by a company listed on the New York Stock Exchange, Rohm & Haas, as capable of withstanding ponding water. At the time he entered into the contract, Mr. McCurley did not know that this claim was false. In the fall of 1983, he applied this coating not only to places where cementitious fill had bulged, blistered, or cracked, but also to unblemished portions of the Camelot roofs, covering them entirely twice, before applying a final coat of high gloss white paint. Before he was paid, Mr. McCurley had done everything called for by the contract. On May 30, 1984, however, Mr. Shoop told Mr. Emig that old leaks had reappeared and that new leaks had sprung open. Mr. Shoop also telephoned and left word for Mr. McCurley to this effect on June 15, 18, and 19. On July 5, 1984, Mr. Shoop wrote Mr. McCurley a letter, Petitioner's Exhibit No. 4, in response to which Mr. McCurley applied another acrylic waterproofing compound and plastic cement. When he finished, "it looked from a laym[a]n's point of view that it was a good job." (T. 31). In November of 1984, the B building roof still looked good but it leaked. In response to complaints, Mr. McCurley returned several times to repair blistered areas with acrylic waterproofing and to apply plastic cement. Typically these repairs prevented leaks the next hard rain but not the one following. Camelot B needs reroofing, which involves taking out the existing roof and building up a new one with tar and gravel, the approach Mr. McCurley originally recommended.) Mr. Hilson, who has spent approximately 30 years in the roofing business, testified that the coatings that Mr. McCurley used were permeable, and inappropriate for use on horizontal surfaces on that account. Specifically, after inspecting Camelot B's roof, Mr. Hilson testified: It has continued to leak from what we was shown and told. I made a note here that it takes a zero perm rating to hold back water, and these coatings apparently have no such perm rating. These coating[s] are breathable. And because they are breathable they allow water to go through them and become trapped, underneath the cementious fill. The only type of coating that we know of that these type of coatings were normally used on vertical surfaces where water can't stand on them, showing these photographs here the water where it does pond on this coating, it deteriorates the coating. It actually eats it. The fungus attacks it. Basically that's it, except where the bottom statement that I made is that these type of coatings cannot hold back water and should not be used to try to hold back water. And anybody with any roofing knowledge should understand or know they can't hold back water. (T. 71, 72). Respondent McCurley testified that he did not know what numerical "perm rating" the material he used had been given, but that he relied on the manufacturer's representations that it would withstand ponding, when he told Mr. Shoop that he thought it would work. He did not dispute that the coating had failed. Mr. Hilson was of the opinion that not even an impermeable coating would have worked, because it would not only have prevented water's penetrating, but would also have trapped moisture already in the cementitious fill. In his view, when the trapped water vaporized, it "would have blown the system off". Petitioner's Exhibit No. 7. Mr. McCurley also contracted with Mr. Shoop to work on the roof of the Mayani apartment building in Miami. For $1200.00, he undertook, among other things, to check and reseal as needed "litch [sic] pans," repair three leaks in the deck, cover "all bald spots with gravel," and install Gravel Lok over the entire gravel roof area. The leak repairs were unconditionally guaranteed for a year. After work was completed, Mr. McCurley received full payment on September 6, 1983. Before he began work, Mr. McCurley telephoned some government office in Dade County and asked whether a permit was "required to put a cement coating over a gravel built-up roof," (T. 9) and was told that none was required. After the present proceedings were instituted he called again and got the same answer. As a practical matter, persons not licensed as roofers, including "the average painter, goes out and does a waterproof of a roof." (T. 103) Repair of the three leaks probably cost Mr. McCurley $30.00. (T. 99) When he began on the Mayani roof Mr. McCurley was aware that Dade County's code is similar to Broward County's, which incorporates the South Florida Building Code, and knew specifically that Dade County required a permit for roofing repairs "after Three Hundred dollars," (T. 98) a permit he was ineligible to obtain. Dade County does indeed require permits for the "application, construction or repair of any roof covering. . .exceeding three hundred dollars (S300.00) in value of labor and materials, . . . or for work exceeding 2 roofing squares in extent," Petitioner's Exhibit No. 6, and the requirement applied to the job Mr. McCurley did at Mayani. (T. 66). When Mr. Shoop reported the Camelot leaks to Mr. Emig on May 30, 1984, he also reported leaks at Mayani that had appeared after heavy rains in Miami. Eventually respondent repaired the Mayani roof, but problems developed again in November of 1984.
The Issue Whether Respondent committed the offenses set forth in the administrative complaint and, if so, the penalty which should be imposed.
Findings Of Fact At all times material to this case, the Respondent, Harry Bradshaw, was licensed as a registered roofing contractor in the State of Florida, holding license number RC 0033812. On August 26, 1986, Respondent's license as a registered roofing contractor was suspended by Petitioner. Respondent's license remained suspended at all times material to this case. On December 16, 1987, Respondent contracted with the Moose Lodge located in Hialeah, Florida, to reroof the Moose Lodge building. The proposal submitted by Respondent contained representations that Respondent was licensed as a registered roofing contractor and that he was insured. Respondent knew that his license as a registered roofing contractor was under suspension. Respondent had no insurance. The contract between Respondent and the Moose Lodge provided that Respondent would perform the work and supply the materials for the sum of $6,200.00. The sum of $3,200.00 was paid to Respondent in advance of his beginning the job. Respondent used the sums advanced to purchase materials and supplies. The remaining $3,000.00 was to have been paid upon Respondent's completion of the job. During the negotiations that resulted in the contract between Respondent and the Moose Lodge, Respondent represented that the job should be completed in time for the functions scheduled for New Year's Eve. While Respondent had purchased the materials needed for the job and had done a substantial amount of work on a portion of the roof, he was unable to complete the work by the New Year. Respondent was ordered to stop work on the job on January 26, 1988. Respondent did not abandon the job. Although he was slow in performing the work, a part of Respondent's delay in performance was caused by rain. There was no evidence as to what would have been a reasonable period of time for Respondent to have completed the job. On January 26, 1988, the administrator for the Moose Lodge complained to the Building Inspection Department for the City of Hialeah, Florida, because the administrator was not pleased with the progress that Respondent was making toward completion of the job. The administrator was told by a representative of the Building Inspection Department on January 26, 1988, that Respondent had no license and that the required permit had not been pulled. The administrator was told to prohibit Respondent from working on the roof. Immediately thereafter, the administrator instructed Respondent to do no further work on the roof. The members of the Noose Lodge completed the job started by Respondent for less than $3,000.00, the balance of the amount that would have been owed Respondent if he had finished the job. Respondent knew that a permit was required for this work. Respondent also knew that only a licensed roofing contractor could pull the required permit. Respondent proceeded with the job when he was unable to persuade a licensed roofing contractor to pull the permit for him. Petitioner filed an administrative complaint against Respondent alleging that at the time he contracted with the Moose Lodge, Respondent's license was suspended, thus violating the provisions of Section 489.129(1)(j), Florida Statutes, and the provisions of Section 489.127(1)(e), Florida Statutes. The administrative complaint also alleged that Respondent failed to perform in a reasonably timely manner and/or abandoned the job in violation of Section 489.129(1)(m), Florida Statutes, and Section 489.129(1)(k), Florida Statutes. Respondent denied the allegations of the administrative complaint and timely requested a formal hearing. This proceeding followed. Respondent was previously disciplined by the Construction Industry Licensing Board, and his license remained under suspension at the time of the final hearing.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that a final order be entered finding Respondent guilty of having violated Section 489.127(1)(e), Florida Statutes, and Section 489.129(1)(j), Florida Statutes. It is further recommended that the final order revoke Harry Bradshaw's license in the State of Florida as a registered roofing contractor. DONE and ENTERED this 31st day of October, 1989, in Tallahassee, Florida. CLAUDE B. ARRINGTON 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 31st day of October, 1989. COPIES FURNISHED: Harry Bradshaw 5590 East Seventh Avenue Hialeah, Florida 33013 David M. Gaspari, Esquire Adams, Coogler, Watson & Merkel, P.A Suite 1600 NCNB Tower 1555 Palm Beach Lakes Boulevard West Palm Beach, Florida 33402-2069 Kenneth E. Easley, 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
