The Issue The issues that were presented for disposition in the above-styled cases were whether Respondent committed certain alleged violations of Chapter 489, F.S. and if so what discipline is appropriate. As stated below, the parties stipulated to the violations, leaving only the issue of discipline to be resolved.
Findings Of Fact Gordon Lee Cederberg is, and has been at all times material hereto, a licensed registered roofing contractor, having been issued license number RC 0051346, by the State of Florida. At all times material Respondent was the licensed qualifier for Allied American Roofing Company and was responsible in such capacity for supervising its contracting activities. Allied American Roofing Company was dissolved on November 4, 1988. Stipulated Violations By stipulation, Respondent has admitted the following allegations of the amended administrative complaint in DOAH #91-8319: 3. CASE NO. 0106373 COUNT THREE Respondent d/b/a Allied American Roofing contracted with Michael Roberts on April 4, 1988 to reroof a home located at 530 Mason Street, Apopka, Florida. The contract price was $942.80 and was paid in full. Respondent proceeded to complete the job without obtaining a permit and securing required inspections from the City of Apopka Building Department. By the reason of the foregoing allegations, Respondent has violated Section 489.129(1)(d), F.S., in that the Respondent willfully and deliberately disregarded and violated the applicable building code of a municipality, to wit, Apopka, Florida, by failing to obtain a permit and inspection is as required by that municipality. 4. CASE NO. 0107766 COUNT FOUR Respondent's license was under suspension by the Florida Construction Industry Licensing Board between August 10, 1988, and March 3, 1989. Respondent d/b/a Allied American Roofing contracted with Nancy Wiegner on September 22, 1988, to reroof a home located at 15 Kentucky Street, St. Cloud, Florida. The contract price was $1,600.00 and it was paid in full. Respondent commenced work under the contract but failed to obtain a permit prior to commencing such work from the City of St. Cloud, Florida, and the municipality issued a stop order on the job. Respondent further engaged in contracting in a municipality where he had not registered. By reason of the foregoing allegation, Respondent has violated Section 489.129(1)(j), F.S., in that he failed in a material respect to comply with the provisions of Section 489.117(2), F.S., in that he engaged in contracting in a municipality, to wit, St. Cloud, Florida, where he had failed to comply with the local licensing requirements for the type of work covered by his registration. COUNT FIVE By reason of the foregoing allegations, Respondent has violated Section 489.129(1)(d), F.S., in that Respondent willfully deliberately disregarded and violated the applicable building code of a municipality, to wit, St. Cloud, Florida by failing to secure a permit as required by that municipality. COUNT SIX By reason of the foregoing allegations, Respondent has violated Section 489.129(1)(j), F.S., by failing in a material respect to comply with the provisions of Section 489.127(1)(e), F.S., by engaging in contracting while his license was suspended. COUNT SEVEN By reason of the foregoing allegations, Respondent has violated 489.129(1)(m), F.S., by committing gross negligence, misconduct, and/or incompetency in the practice of contracting. 8. CASE NO. 0112740 COUNT EIGHT Respondent d/b/a Allied American Roofing contracted with Emma Smith on October 3, 1988 to reroof a home at 1911 Mullet Lake Park Road, Geneva, Seminole County, Florida. The contract price was $4,100.00 and it was paid in full. Respondent proceeded to complete the job without obtaining a permit and securing required inspections from the Seminole County Building Department. Respondent failed to properly construct a watertight roof which continued to leak and caused damage to the home. Respondent has failed to honor the five (5) year labor and twenty (20) year material warranty that was part of the said contract, although he was requested to do so. By reason of the foregoing allegations, Respondent has violated Section 489.129(1)(n), F.S., in that the Respondent proceeded on a job without obtaining an applicable local building department permit and inspections. COUNT NINE By reason of the foregoing allegations, Respondent has violated Section 489.129(1)(j), F.S., by failing in a material respect to comply with the provisions of Section 489.127(1)(e), F.S., by engaging in contracting while his license was suspended. COUNT TEN By reason of the aforesaid allegations, Respondent is guilty of violating Section 489.129(1)(m), F.S., by committing an act of gross negligence, incompetency and/or misconduct in the practice of contracting by failing to honor the written warranty described in paragraph twenty-six above. COUNT ELEVEN By reason of the aforesaid allegations, Respondent is guilty of violating Section 489.129(1)(m), F.S., by committing an act or acts of gross negligence, incompetency and/or misconduct in the practice of contracting. 12. CASE NO. 89-001674 COUNT TWELVE Respondent d/b/a Allied American Roofing Company contracted with Thelma Beck to reroof a home at 3910 Pineland Ridge Road, Orlando, Orange County, Florida on January 26, 1989 for a price of $2,270.00. Respondent accepted a $100.00 deposit for said job; the work was not begun and the $100.00 deposit was returned to Mrs. Beck. By reason of the foregoing allegations, Respondent has violated Section 489.129(1)(j), F.S., by failing in a material respect to comply with the provisions of Section 489.127(1)(e), F.S., by engaging in contracting while his license was suspended. COUNT THIRTEEN By reason of the aforesaid allegations, Respondent is guilty of violating Section 489.129(1)(m), F.S., by committing an act or acts of gross negligence, incompetency and/or misconduct in the practice of contracting. COUNT FOURTEEN Respondent d/b/a Allied American Roofing contracted with Morris Remmers to reroof a home at 8719 Butternut Boulevard, Orlando, Orange County, Florida, on or about February 23, 1989. The contract price was $2,870.00 and it was paid in full. Respondent proceeded to complete the job without obtaining a permit and securing required inspections from the Orange County Building Department. By reason of the foregoing allegation, Respondent is guilty of violating Section 489.129(1)(n), F.S., in that Respondent proceeded in a job without obtaining an applicable local building department permit and inspections. COUNT FIFTEEN By reason of the foregoing allegations, Respondent has violated Section 489.129(1)(j), F.S., by failing in a material respect to comply with the provisions of Section 489.127(1)(e), F.S., by engaging in contracting while his license was suspended. COUNT SIXTEEN By reason of the aforesaid allegations, Respondent is guilty of violating Section 489.129(1)(m), F.S., by committing an act or acts of gross negligence, incompetency and/or misconduct in the practice of contracting. 17. CASE NO. 89-008737 COUNT SEVENTEEN Respondent d/b/a Allied American Roofing contracted with Robert Speirs to reroof a dwelling at 2467 Fieldingwood Road, Maitland, Seminole County, Florida on or about October 14, 1988. The contract price was $3,600.00. Respondent proceeded to work the job but failed to obtain a permit and secure required inspections from the Seminole County Building Department. Respondent failed to properly construct a water tight roof which continued to leak. Respondent failed to honor the three (3) year labor and twenty (20) year material warranty that was part of the contract although he was requested to do so. By reason of the aforesaid allegations, Respondent has violated Section 489.129(1)(n), F.S., in that Respondent proceeded on a job without obtaining an applicable local building department permit and inspections. COUNT EIGHTEEN By reason of the foregoing allegations, Respondent has violated Section 489.129(1)(j), F.S., by failing in a material respect to comply with the provisions of Section 489.127(1)(e), F.S., by engaging in contracting while license was suspended. COUNT NINETEEN By reason of the aforesaid allegations, Respondent is guilty of violating Section 489.129(1)(m), F.S., by committing an act of gross negligence, incompetency and/or misconduct in the practice of contracting by failing to honor his written warranty described in paragraphs forty-seven above. COUNTY TWENTY By reason of the aforesaid allegations, Respondent is guilty of violating 489.129(1)(m), F.S., by committing an act or acts of gross negligence, incompetency and/or misconduct in the practice of contracting. 21. CASE NO. 109636 COUNT TWENTY-ONE Respondent d/b/a Allied American Roofing Company contracted with Daniel J. Doherty to reroof a home at 225 Dover Wood Road, Fern Park, Seminole County, Florida on October 2, 1988, for the contract price of $3,590.00 which was paid in full. Respondent proceeded to complete the job without obtaining a permit and securing required inspections from the Seminole County Building Department. Respondent failed to construct a watertight roof, which contributed to water damage to the interior of Mr. Doherty's home. Respondent failed to honor the five (5) year labor and twenty (20) year material warranty that was part of the contract, although he was requested to do so. By the reason of the foregoing allegations, Respondent has violated Section 489.129(1)(n), F.S., by proceeding on the job without obtaining a local building department permit and inspections. COUNT TWENTY-TWO By reason of the foregoing allegations, Respondent has violated Section 489.129(1)(j), F.S., by failing in a material respect to comply with the provisions of Section 489.127(1)(e), F.S. by engaging in contracting while his license was suspended. COUNT TWENTY-THREE By reason of the foregoing allegations, Respondent has violated 489.129(1)(m), F.S., by committing gross negligence, misconduct, and/or incompetency in the practice of contracting by failing to honor his warranty as described in paragraph fifty-six above. COUNT TWENTY-FOUR By reason of the aforesaid allegations, Respondent is guilty of violating Section 489.129(1)(m), F.S., by committing an act or acts of gross negligence, incompetency and/or misconduct in the practice of contracting. COUNT TWENTY-SEVEN Respondent d/b/a Allied American Roofing contracted with Gloria Viruet to reroof a home at 3010 (renumbered to 3007) Northwood Blvd., Orlando, Orange County, Florida on June 7, 1988. The contract price was $3,500.00. Respondent proceeded to complete the job without receiving a permit and securing required inspections from the Orange County Building Department. The Respondent failed to properly construct a watertight roof and a leak developed after construction. Respondent failed to honor the five (5) year labor and twenty (20) material warranty that was part of the said contract, although he has been requested to do so. By reason of the aforesaid allegations, Respondent has violated Section 489.129(1)(d), F.S., in that Respondent willfully and deliberately disregarded and violated the applicable building code of a County, to wit, Orange County, Florida by failing to obtain a permit and inspections as required by that County. COUNT TWENTY-EIGHT By reason of the aforesaid allegations, Respondent is guilty of violating Section 489.129(1)(m), F.S., by committing an act or acts of gross negligence, incompetency and/or misconduct in the practice of contracting, by failing to honor his written warranty described in paragraphs seventy. COUNTY TWENTY-NINE By reason of the aforesaid allegations, Respondent is guilty of violating Section 489.129(1)(m), F.S., by committing an act or acts of gross negligence, incompetency and/or misconduct in the practice of contracting. 28. CASE NO. 0108263 COUNT THIRTY Respondent d/b/a Allied American Roofing Company contracted with John E. Hultin to reroof a home located at 3610 Lakeview, Apopka, Florida on November 7, 1987. The contract price was $2,900.00 and it was paid in full. Respondent proceeded to complete the job without obtaining a permit and securing required inspections from the Seminole County Building Department. Respondent failed to properly install a roof covering, violating Section 103 of the Standard Building Code, 1985 Standard of Installation of Roofing Coverings adopted by Seminole County and Seminole County Ordinance Section 40.51. The contract provided for a five (5) year labor warranty and a twenty (20) year material warranty. Respondent made several attempts to correct defects but has not fulfilled his warranty as the roof continued to leak. By reason of the aforesaid allegations, Respondent has violated Section 489.129(1)(d), F.S., in that the Respondent willfully and deliberately disregarded and violated the applicable building code of a county, to wit, Seminole County, Florida by failing to obtain a permit and inspections as required by that county. COUNT THIRTY-ONE By reason of the foregoing allegations, Respondent has violated Section 489.129(1)(d), F.S., in that the Respondent willfully and deliberately disregarded and violated the applicable building code of a county, to wit, Seminole County, Florida by installing the above described roof in a grossly negligent manner and in a manner which violated Section 103 of the Standard Building Code, 1985 Standard of Installation of Roof Covering, adopted by Seminole County and Seminole Ordinances Section 40.51. COUNT THIRTY-TWO By reason of the aforesaid allegations, Respondent is guilty of violating Section 489.129(1)(m), F.S., by committing an act or acts of gross negligence, incompetency and/or misconduct in the practices of contracting by failing to honor his written warranty described above. COUNT THIRTY-THREE By reason of the aforesaid allegations, Respondent is guilty of violating Section 489.129(1)(m), F.S., by committing an act or acts of gross negligence, incompetency and/or misconduct in the practice of contracting. FACTS RELATED TO RESPONDENT'S PROPOSED MITIGATION Respondent has been engaged in the practice of roofing contracting for over twenty years. Prior to moving to Florida in 1983 his company worked in Michigan, Ohio and Indiana on large commercial jobs. In 1983 he was employed by the Disney company to do commercial roofing work. After licensure in Florida, Cederberg continued with large public works and commercial jobs in Florida. Sometime around 1988, after a disastrous reversal of fortune, the company filed for bankruptcy. Although he was utterly unfamiliar with the practice of residential roof contracting, particularly the demanding supervision involved, Gordon Cederberg began doing residential work. Around this same time Cederberg's wife left him and he was given custody of three children, ages three, six, and nine. He was emotionally distraught and obtained counseling and financial and other support from his church group. Cederberg's roofing contractor's license was suspended by the Construction Industry Licensing Board from August 1, 1988 to March 1, 1989, during which time he continued to work, due to financial pressures. Warranty work was not done due to his financial and emotional straits. According to Cederberg and his witnesses, he is in the process now of turning his life around. He operates on a smaller scale and is able to handle the work. He has one employee and has been able to avoid new complaints. He is still financially unable to provide restitution to the customers previously harmed.
Recommendation Based on the foregoing it is hereby, RECOMMENDED: that the parties' stipulation with regard to dismissals and admissions described above be accepted by the Board and that the following penalty be imposed: a) 1000.00 fine; one year suspension, with this penalty suspended during, and removed upon successful completion of, probation with an appropriate timetable for restitution and the requirement that appropriate continuing education courses are completed; and payment of costs of investigation and prosecution. DONE and ENTERED this 31st day of December, 1992, at Tallahassee, Florida. MARY CLARK 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 December, 1992. COPIES FURNISHED: Jack McRay, General Counsel Department of Professional Regulation 1940 North Monroe Street Tallahassee, FL 32399-0792 Daniel O'Brien, Executive Director Construction Industry Licensing Board P.O. Box 2 Jacksonville, FL 32202 William S. Cummins, Esquire Department of Professional Regulation 1940 North Monroe Street Tallahassee, FL 32399-0792 Jack Snow, Esquire 407 Wekiva Spings Road, Suite 229 Longwood, FL 32779
The Issue Whether Respondent committed the offenses described in the Administrative Complaint? If so, what disciplinary action should be taken against him?
Findings Of Fact Respondent is a roofing contractor licensed to practice in the State of Florida. Since January, 1982, he has been the qualifying agent for Tropical Clima-Coat Inc. (Tropical). On September 21, 1983, Tropical entered into a written contract with Bertha Guerry and her husband Joseph, in which it agreed, for $2,449.10, to perform the following roofing work on the Guerrys' residence, which was located at 2185 S.W. 38th Street in Fort Lauderdale, Florida: Remove loose gravel and dirt from existing roof surface/flat deck. Apply Tropical Clima-Coat's resin- based cement to fill holes and cracks in the roof surface. Apply acrylic primer to provide maximum adhesion for acrylic waterproofing. Apply acrylic waterproofing, creating a uniform, bonded, elastomeric, watertight surface. Apply White Acrylic Roof Finish as a durable, mildew-resistant wear barrier. The contract further provided that the Guerrys were to receive a "5 year, 100% warranty against leaks." The work specified in the contract was completed on October 31, 1983, and the Guerrys thereupon paid Tropical in full. Tropical, in turn, gave the Guerrys a written warranty signed by its Vice-President, which provided, in part, as follows: If within 5 years after Tropical Clima- Coat applies its Roof System to your roof, a leak develops because of the failure of our roofing system,* we will repair it free. * Damage excluded from warranty: Tropical Clima-Coat shall not be liable for any leaks or damage caused by riots or vandalism, termites or other insects, penetration of the roof or waterproofing system by nails; nor shall Tropical Clima-Coat be liable for leaks or damage caused by acts of God, including but not limited to: lightening, gale, hurricane, tornado, hailstorm, flood, earthquake, or unusual phenomena of the elements; nor from damage to roof due to settlement, distortion, dry rot, failure or cracking of the roof deck, walls, partitions, or foundation of the structure; nor defects or failure of materials used as a roof base, over which our waterproofing system is applied; nor by biological growth, traffic upon the roof or any similar cause. The warranty also contained the following provision prescribing the time and manner in which claims under the warranty had to be made: The owner of the roof will notify Tropical Clima-Coat immediately by certified mail, at its main office (3746 N.W. 16th Street, Ft. Lauderdale, Florida 33311) of any leaks alleged to result from causes not excluded from coverage by this warranty. Such notification must be mailed within 30 days of discovery of the need for repairs, and all correspondence must include the above Certificate Number. In June, 1986, Mrs. Guerry noticed that there was a leak in her roof above the living room. She telephoned Tropical and requested that it repair the leak in accordance with the warranty she and her husband had been given. Tropical responded promptly to Mrs. Guerry's request. It sent one of its workers to the Guerry residence and he patched the leak. Arrangements were made for the worker to return to the Guerry residence and pressure clean the roof. Pursuant to these arrangements, the worker came back to the residence and pressure cleaned the roof as he had promised. It took him two hours to complete the task. Following the pressure cleaning of the roof, Mrs. Guerry discovered that there were now leaks in the roof above the kitchen. Having made this discovery, she again telephoned Tropical and requested that it repair these newly-discovered leaks. As it had done in response to her previous telephonic request, Tropical dispatched a worker to the Guerry residence, albeit not as promptly as on the prior occasion. The worker applied black ceramic granules to the surface of the roof in an attempt to alleviate the problem. The Guerrys now had a black roof instead of the white roof for which they had contracted. Mrs. Guerry again telephoned Tropical and complained about the new color of her roof. Tropical responded by having a worker go to the Guerry residence and spray paint the roof white. The paint, however, did not adhere well to the granular material on the roof. Furthermore, Mrs. Guerry observed new leaks in the roof. On September 8, 1986, she telephoned Tropical to advise it of these recent developments. Respondent visited the Guerry residence the next day. He told Mrs. Guerry that Tropical intended to remove the granules and recoat the roof with an asphalt material imbedded with a polyester fabric for greater strength to prevent against leaks. He further assured her that, upon completion of the repair work, the roof would be white. On September 15, 1986, a crew of Tropical workers were on the Guerrys' roof with approximately 80 to 100 gallons of asphalt when a sudden, unexpected heavy rainstorm interrupted their work. The rainwater mixed with the asphalt and created "black goo," some of which fell from the roof onto the sides of the house, the porch, the driveway, the sidewalks, the grass, the bushes, and the trees. Tropical had its workers endeavor to clean up the mess that the rainstorm had created. They used mineral spirits in an attempt to remove the hardened remains of the "black goo" from the porch, the driveway and the sidewalks and swept the residue onto the grass, bushes and trees. In so doing, they contaminated the soil and killed the vegetation. Respondent was responsible for the decision to use mineral spirits in the cleanup effort. He did not realize, as he should have, that the use of this substance would result in environmental damage. The cleanup progressed slowly. Frustrated by the lack of substantial progress, Mrs. Guerry telephoned Respondent and demanded that he go to her home and do something about the situation. Respondent did not believe that his presence at the home would help matters any and he told Mrs. Guerry so. Nonetheless, on September 17, 1986, he paid his final visit to the Guerry residence. During his visit, Respondent met with Mrs. Guerry for approximately an hour and a half. Mrs. Guerry expressed to Respondent her outrage concerning the situation. Respondent recognized that Mrs. Guerry had a right to be annoyed and that Tropical needed to take action to remedy her plight. He wrote down on a piece of paper the following things that Tropical would do for the Guerrys: FIX ROOF LOOSEN SOIL W/RAKE 4. REMOVE "STICKINESS" FROM DRIVEWAY AND SIDEWALK 3. REMOVE BLACK FROM CHATTAHOOCHEE (STAINS WILL REMAIN) REMOVE "STICKINESS" FROM CHATTAHOOCHEE REMOVE STICKINESS FROM DECORATIVE WALL (STAINS WILL REMAIN) REMOVE STICKINESS FROM SIDEWALKING STONES REMOVE BLACK FROM CHAT @ BACK DOOR SOD- TO BE DETERMINED LATER Respondent indicated he would sign this document and he asked Mrs. Guerry to do the same to acknowledge their understanding and agreement as to the remedial action Tropical was to take. Mrs. Guerry refused. Nonetheless, the cleanup effort continued. Mrs. Guerry, however, did not permit Tropical to continue its repair work on the roof. Concerned about the damage that had been done to the vegetation on her property, Mrs. Guerry contacted a horticultural consultant, Robert G. Haelhle. Haelhle surveyed the property on September 18, 1986. Following his survey he wrote a letter to the Guerrys advising them of the following: On September 18, 1986, I visited the Guerry property at Mrs. Guerry's request. The landscape plantings are in real trouble due to a mineral spirits spill. Mineral spirits and water were used to clean up roofing tar that washed off the roof after a heavy rainstorm. The kerosene [sic] and water mixture washed over the lawn, around the base of a West Indian Cherry tree (very rare), an arborvitae, and a 165 foot Ixora hedge on the east and west sides of the house. The Ixora hedge is over 7 feet tall and 30 years old and would not be replaceable. The mineral spirits/water mix will poison the soil and eventually could affect the water table. All affected soil will have to be removed from the area before any new planting can be accomplished. The West Indian Cherry was starting to yellow and the grass was dying at the time of my visit. Time is of the essence to preserve the remaining plantings. The kerosene [sic]/water mix poisons the root system of the plants and does not allow for normal water penetration. I am not optimistic about the remaining plantings. I contacted Jane McCarthy of the Environmental Quality Board, tel: 765- 5881. She was to send an inspector to assess the soil damage at the site. Neither Tropical nor Respondent replaced the "plantings" that had been damaged or destroyed as a result of the cleanup effort. On September 22, 1989, Mrs. Guerry telephoned Respondent. She reiterated that she did not want any work done on the roof until she had an independent expert inspect it and provide her with guidance. That same day, Edward T. Weiner, a licensed architect hired by the Guerrys, inspected their roof. Based on his observations of the condition of the roof, it was Weiner's opinion that the repair work done by Tropical was unacceptable and that a new roof needed to be installed. He so advised the Guerrys by letter dated September 29, 1986. The Guerrys also hired an attorney, Craig W. Lekach, to furnish them legal advice and representation concerning their dealings with Tropical. On September 23, 1986, Lekach telephoned Respondent and instructed him to "get busy" with the repair work that needed to be done. The following day, Respondent telephoned Mrs. Guerry and told her that he was anxious to complete the repair work on her roof. Mrs. Guerry took the opportunity to again express her displeasure with the work Tropical had done. She also indicated that she had yet to hear from Weiner regarding his assessment of the condition of the roof. That same day, September 24, 1986, Respondent received word that a Broward County Environmental Compliance Officer had inspected the Guerrys' property and determined that mineral spirits used in the cleanup effort had contaminated soil on the property. Respondent was further informed that the excavation of the contaminated soil would remedy the situation. Having received permission from the Guerrys' attorney to proceed with the repair work, Respondent sent a crew to the Guerry residence on September 25, 1986, to vent the roof. Mrs. Guerry, however, did not allow the workers to install the vents. Another telephone conversation between Mrs. Guerry and Respondent ensued. Respondent reiterated that it was his desire to finish the work that needed to be done on the roof. Mrs. Guerry, in turn, indicated that she would not let Tropical continue its work on the roof until she had Weiner's report in hand and had the opportunity to further discuss the matter with her attorney, her son and others with whom she had consulted. The conversation ended with Respondent telling Mrs. Guerry that he would be waiting to hear from her. On September 26, 1989, Respondent wrote a letter to Attorney Lekach in which he complained that Mrs. Guerry was interfering with Tropical's efforts to make her whole. The letter read, in part, as follows: We do carry casualty insurance and I feel it may be best to supply you with the name and address of our agent and allow him to coordinate with Mrs. Guerry's homeowners agent. Truly, this situation is considered an "act of God" and I do not believe that we can adequately communicate with the customer as she is in such an excited state we now find her implacable. We would be glad to install the proper roof vents and do the final painting of her roof if she will permit us. If she will not, then we must close the file and direct her to our insurance company. This is really unfortunate! Sound roofing practices were utilized; we were careful to watch the weather and, although we had a sudden cloudburst, we did stay around to try to clean up. We have not been negligent and we have spent considerable time and money to resolve the situation. Please advise at your earliest convenience. Respondent next heard from Lekach on October 9, 1986. Later that same day, pursuant to Lekach's request, Respondent met with Lekach and discussed "the problems at the Guerry residence." The following day, Lekach sent Respondent a letter memorializing the highlights of their discussion. The letter provided, in part, as follows: You will be permitted access to the Guerry property for the following purposes: Inspection of the roof, cleaning of the yard which will include replacement of sod as necessary, replacement of topsoil as necessary, and removal of tar. The performance of the above shall neither be construed as an admission of liability on your part, nor an acceptance of this work as being satisfactory or complete. I agree, however, that it is imperative that steps be taken immediately to mitigate the damage. Further we will both be doing the following: obtain information about repair methods and costs for chattahoochee surface. obtain information about repair methods for the "staining" problem on walls and patio so that the area can be painted. review proposals for correction or replacement of roof, if necessary. There is going to have to be a certain amount of good faith between you and Mrs. Guerry if this situation is to be resolved without litigation. Accordingly, we are now permitting you access to the property in the hope that you will also attend to the other matters set forth above. Mrs. Guerry has been hesitant to accept a partial resolution of this problem without your commitment to complete all of the repairs and this is the reason that the cleanup was delayed in some respects. Hopefully, we will be able to work towards resolving all aspects of the damage. On October 11, 1986, Respondent dispatched a crew to the Guerry property to perform the excavation work that was necessary to remove the soil that had been contaminated by the mineral spirits used in the cleanup effort. On this occasion, the workers were given access to the property for this purpose and they removed and replaced the contaminated soil. On October 13, 1986, Tropical sent a crew to the Guerry property to inspect their roof. Mrs. Guerry would not permit the Tropical workers to enter the premises. She indicated that she would not allow the workers on her property to inspect or repair the roof until she had heard from all those with whom she had consulted regarding the matter. Having been denied access to the property by Mrs. Guerry, the workers left without performing their inspection. At no time thereafter did the Guerrys directly contact Tropical and request that the workers return to the residence to finish the repair of the roof. In the absence of any such direct communication from the Guerrys, Tropical did not attempt to do any further repair work on the roof after October 13, 1986. On October 6, 1986, the Broward County Environmental Quality Control Board had issued a notice of violation citing Tropical with discharg[ing] a substance (mineral spirits) to ground." A hearing on the charge was held before the Board on November 7, 1986. Respondent appeared on behalf of Tropical at the hearing. He admitted that Tropical was guilty of discharging a pollutant, to wit: mineral spirits, into the soil, although he explained that the violation was a product of ignorance on his part regarding the qualities of mineral spirits. Based on this admission of guilt, the Board imposed a $500.00 fine, which was subsequently paid by Respondent. In late 1986, the Guerrys filed with the Department of Professional Regulation a complaint against Respondent. An investigation of the complaint was conducted, following which an initial determination was made that there was "presently no probable cause to find that [Respondent] violated the contractor disciplinary statutes." Respondent was notified of this determination by letter dated May 14, 1987. This determination of no probable cause was subsequently reversed. On January 11, 1989, an administrative complaint was filed by the Department charging Respondent with wrongdoing in connection with the work performed on the Guerry home. The Guerrys no longer own the home. The property was purchased by Broward County in furtherance of the County's airport expansion project. Respondent has previously been disciplined by the Construction Industry Licensing Board. In early 1987, Respondent was fined $500.00 for failing to obtain a permit as required by local law. In March, 1988, he was fined $1,500.00 for failing to call for all required inspections. In August, 1988, he was fined $500.00 for proceeding without a required permit, failing to obtain all required inspections, failing to reasonably honor a guarantee, and displaying gross negligence, incompetence or misconduct.
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 gross negligence and incompetence, in violation of Section 489.129(1)(j) and (m), Florida Statutes, in connection with his supervision of the cleanup of the Guerry residence; (2) suspending Respondent's license for six months and imposing a fine of $1500 for said violation; and (3) dismissing the remaining charges against Respondent that are set forth in the instant Administrative Complaint. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 17th day of November, 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 11th day of November, 1989.
The Issue The issues to be resolved in this case are those promoted by the second amended administrative complaint brought by the State of Florida, Department of Professional Regulation against the Respondent, David W. Crosby. Briefly, the basic allegations are that the Respondent granted to James Crosby, d/b/a U.S. Seamless Roof Systems, the unlimited opportunity to obtain building permits under the Respondent's contracting license. This arrangement, it is alleged, was in the face of a circumstance in which James Crosby was not registered, certified, or otherwise licensed by the Construction Industry Licensing Board, nor had the Respondent qualified U.S. Seamless Roof Systems with the Construction Industry Licensing Board. It is further alleged that between August 1982 and in or about 1985 James Crosby operated a roofing contracting business in St. Johns County, Florida, and in St. Augustine, Florida, and utilized the Respondent's authorization to obtain certain building permits and that James Crosby then performed roofing work authorized by those permits. By reason of this arrangement Respondent is said to have violated Sections 489.119 and 489.129(1)(e) (f) (g) (j) and (m), Florida Statutes. There are additional allegations of similar nature pertaining to work in Brooksville and Inverness, Florida.
Findings Of Fact Facts found based upon responses to requests for admissions propounded from Petitioner to the Respondent (see Petitioner's Exhibit 1 admitted into evidence) Respondent's name is David W. Crosby. Respondent is a certified roofing contractor in the State of Florida having been issued license number CC CO 15442. At all times material to the pending Administrative Complaint, Respondent was a certified roofing contractor in the State of Florida having been issued license number CC CO 15442. Respondent's license number CC CO 145442 is active for the period expiring June 30, 1987. In or about August 1982, Respondent issued an unlimited authorization, addressed "To whom It May Concern," which authorized all building departments to issue roofing permits to Respondent's brother, James Crosby. Said James Crosby was operating a roofing business in the period 1982 to 1985, in and about the St. Johns County and St. Augustine area. On or about January 13, 1983, said James Crosby, d/b/a U.S. Seamless Roofing Systems obtained permit number 12102 from the City of St. Augustine. Said permit, number 12102, was obtained to repair a roof for Zorayda Castle of 83 King Street, St. Augustine, Florida. On or about February 3, 1983, said James Crosby, d/b/a U.S. Seamless Roofing Systems, obtained permit number 12122 from the City of St. Augustine. Said permit, number 12122, was obtained to reroof the residence of Zorayda Castle of 83 Ring Street, St. Augustine, Florida. On or about February 24, 1983, said James Crosby, d/b/a U.S. Seamless Roofing Systems, obtained permit number 12158 from the City of St. Augustine. Said permit, number 12158, was obtained to reroof the residence of Lillian Perpall of 67 Abbott Street, St. Augustine, Florida. On or about May 17, 1983, said James Crosby, d/b/a U.S. Seamless Roofing Systems, obtained permit number 12288 from the City of St. Augustine. Said permit, number 12288, was obtained to reroof the residence of Emily M. Alexander of 20 Cuna Street, St. Augustine, Florida. On or about May 2, 1983, said James Crosby, d/b/a U.S. Seamless Roofing Systems, contracted with Lawrence Golden to repair the roof at Golden's residence at 17 Bay View Drive, St. Augustine, Florida, for a contract price of $985. On or about March 28, 1984, said James Crosby, d/b/a U.S. Seamless Roofing Systems, used contractors license number CC CO 15442 to obtain permit number 3781-81 from St. Johns County Florida. Said permit, number 3781-81, was obtained to reroof the residence of Burton Chase of St. Johns County, Florida. On or about March 28, 1984, said James Crosby, d/b/a U.S. Seamless Roofing Systems, used contractors license number CC CO 15442 to obtain permit number 3780-81 from St. Johns County, Florida. Said permit, number 3780-81, was obtained to reroof the residence of Fred Jensen of St. Johns County, Florida. On or about May 7, 1984, said James Crosby, d/b/a U.S. Seamless Roofing Systems, contracted with Ceal Butler to repair Butler's roof on his residence at Rt. 3, Box 56W3, St. Augustine, Florida, for the contract price of $1,335. Said contract referenced in number 20 above, was executed on a printed form bearing contractors license number CC CO 15442. At no time relevant hereto did Respondent qualify the roofing business, American Roof and Waterproofing Company and/or American Roofing and Waterproofing Company. Facts found based upon testimony at final hearing and exhibits admitted at final hearing James Crosby is also known as James A. Crosby, Jr., and Jim Crosby. On May 17, 1982, James A. Crosby, Jr., who held registered roofing contracting license number RC 0029375, voluntarily relinquished that license in Department of Professional Regulation, Construction Industry Licensing Board v. James A. Crosby, Jr., DPR Case No. 006237. On June 30, 1987, the Construction Industry Licensing Board, in accordance with that voluntary relinquishment, entered a final order approving and accepting the relinquishment. See Petitioner's composite Exhibit 3. James Crosby, in those instances described in the fact finding related to roofing contracting activities, was unlicensed and therefore not authorized to practice contracting, to include roofing contracting. See Petitioner's Exhibit 4 admitted into evidence, a February 7, 1986, notice to cease and desist in the case of State of Florida, Department of Professional Regulation vs. James Crosby, DPR Case No. 62490, in which it is indicated that James Crosby does not hold the necessary license to do roofing work or other forms of contracting contemplated by Chapter 489, Florida Statutes. Petitioner's Exhibit 5 is a copy of the general authorization which Respondent directed "To Whom It May Concern" in August 1982 authorizing James Crosby ". . . to pull permits for all roof work done by U.S. Seamless Roof Systems, St. Augustine, Florida." A copy of Respondent's certified roofing contractors license was attached to this authorization. This authorization has never been withdrawn and still remains on file with the City of St. Augustine, Florida, Building Department. At all relevant times related to the second amended administrative complaint, the City of St. Augustine, Florida, by ordinance, had adopted the Southern Building Code, which required building permits to be issued by the City before James Crosby or the companies under whose name he was doing business could undertake the various projects that are contemplated by the second amended administrative complaint. In January 1983, James Crosby entered into a contract with Wallace Mussallem for the roof repair in a tourist attraction in downtown St. Augustine, Florida, known as Zorayda Castle. Price of the repairs was approximately $6500. Petitioner's composite Exhibit 6 admitted into evidence pertains to various building permit applications and for certificate of appropriateness which James Crosby filed related to the Mussallem job. Crosby was operating under the name U.S. Seamless Roofing Co. as depicted in the aforementioned composite exhibit. Crosby completed the job and was paid the full amount of the contract. Crosby warranted his repair work for a period of ten years. During the initial two years, the roof did not leak; however, in 1986 a number of leaks occurred in the roof. Mussallem was unable to locate James Crosby to fix the roof and Mussallem had another roofer effect repairs and spent $3000 to have one section of the roof repaired. As of the time of the hearing, when Mussallem gave his testimony, part of the roof was still leaking and needed to be fixed. Respondent was never involved in the transaction between Mussallem and James Crosby, beyond giving permission to James Crosby to pull building permits from the City of St. Augustine, Florida. On March 4, 1984, Mr. and Mrs. William Blanchard entered into a contract with James Crosby, d/b/a American Roof and Waterproofing Company. James Crosby's associate, Basil R. Boone, was the person who estimated the job; however, the contract was with James Crosby. A copy of that contract can be found as Petitioner's Exhibit 14 admitted into evidence. It calls for the repair of the roof on the Blanchards' residence in St. Augustine, Florida. On April 5, 1985, James Crosby applied for a building permit from the City of St. Augustine to do the roofing work at the Blanchard home, and on April 30, 1985, that building permit was issued. Petitioner's composite Exhibit 8 is a copy of the application for permit and the permit. The price of the contract was $1575. James Crosby was paid for the roofing work. In the course of this transaction, William Blanchard had no occasion to deal with the Respondent. On May 7, 1984, James Crosby, d/b/a U.S. Seamless Roof Systems contracted with Ceal Butler of St. Johns County, Florida, to do roof repair work on a mobile home belonging to Mr. Butler. See Petitioner's Exhibit 15 admitted into evidence. The contract price was $1335 and Crosby guaranteed the work for ten years. May l8, 1984, James Crosby, as referred to in the check written to the Butlers as "Jim Crosby," was paid the contract amount. The contract form that was utilized in the Butler case referred to the Florida certified contracting number which pertains to the Respondent. Notwithstanding this reference, Respondent did not involve himself with this project. The Butlers immediately began to experience problems with the roofing work done by James Crosby. There were leaks in the roof repair work. The Butlers made numerous requests to have James Crosby honor the warranty, but the repairs were not made. Eventually, another roofer other than James Crosby had to make the repairs on the roof. Lillian Perpall owned a home in St. Augustine, Florida, and contracted with James Crosby to do roofing repair work at her residence. A copy of the contract may be found as Petitioner's Exhibit 17 admitted into evidence. James Crosby was doing business in this instance as U.S. Seamless Roof Systems. The contract price was $4875 and the project carried a ten-year guarantee. On February 24, 1983, in furtherance of the conduct of the project, James Crosby applied for a building permit which was granted that same day. A copy of the application and building permit may be found as Petitioner's composite Exhibit James Crosby was paid the full amount of the contract price for concluding the roofing repair work. Within a year after the work had been done, there was a leak in the roof and James Crosby came and put another coat of material on the roof in response to the complaint of Ms. Perpall. In the last eight or ten months, the back porch area where roof repairs had been made began to leak. Ms. Perpall has tried to contact James Crosby about that problem and has been unable to. In particular, she tried to make contact at the telephone number listed on the contract document that was signed. On the evidence presented, it is found that the Respondent did not participate in the roofing repair work at the Perpall residence, On October 14, 1982, James Crosby, d/b/a U.S. Seamless Roof Systems contracted with Edward Carriere to perform room repair work on Carriere's residence in St. Augustine, Florida. The contract amount was $5100 and the contract included a ten-year guarantee. A copy of the contract may be found as Petitioner's Exhibit 18 admitted into evidence. This contract format bears Respondent's Florida certified contractor's number. In furtherance of this work, James Crosby applied for a building permit from the City of St. Augustine on September 28, 1982, and that permit was issued that same day. A copy of the application and permit may be found as Petitioner's composite Exhibit 11 admitted into evidence. A second building permit related to this work was issued on October 27, 1982, from the City of St. Augustine as acknowledged by James Crosby and is found as part of the Petitioner's composite Exhibit 11. From the beginning, following the work, Carriere has experienced problems with the repair work. These problems are leaks in the roof. They have caused damage in the kitchen and living room area of the Carriere home. James Crosby responded to complaints about the room leaking, but did not fix the problem. The roof leaked from 1983 to 1985. By 1985, Carriere was unable to locate James Crosby to fix the leaking roof. Being unsuccessful in locating James Crosby, Carriere hired another roofer to fix the problem in January 1986. This cost an additional amount of approximately $5800. Carriere never dealt with the Respondent in the roof repair project at his home. On May 2, 1983, Lawrence G. Golden contracted with a representative of U.S. Seamless Roof Systems, the company of James Crosby, to have roof repair work done at the Golden residence in St. Augustine, Florida. A copy of the contract entered into with the company be found as Petitioner's Exhibit 19 admitted into evidence. The contract amount was $985 and the work carried a ten-year guarantee. Lawrence Golden paid the man $985 called for by the contract. Mr. Golden had problems with the roof repair work with the advent of heavy rains, in that the roof leaked. After numerous attempts to contact the company, James Crosby came to examine the nature of the complaint. James Crosby did not fix the problems with the leaking roof or cause them to be fixed until Golden had made a complaint to the State of Florida, Department of Professional Regulation. James Crosby did not obtain a building permit for the roof repair work, nor was a building permit obtained by anyone other than James Crosby. Golden did not deal with the Respondent in the transaction involving the roof repair. On July 15, 1982, Wilbur Lane contracted with James Crosby d/b/a U.S. Seamless Roof Systems to perform roof repair work on Lane's residence in St. Johns County, Florida. The roof repair contract carried the certified roofing contractor license number associated with the Respondent. The amount of the contract price was $1300 and the work carried a ten-year guarantee. James Crosby completed the construction work and received the full payment. A copy of the contract may be found as Petitioner's Exhibit 20 admitted into evidence. Although James Crosby was paid the amount contemplated by the contract, the roof repair work was not successful. After the project was undertaken, Lane experienced leaks inside of his home and made numerous attempts to try to contact James Crosby to take care of the problem. Crosby did attempt to fix the leaks, but failed in the attempt. Eventually Mr. Lane was unable to contact Crosby to continue the effort at rectifying the problem and Mr. Lane had to complete his own repair work on the roof to stop the leaks. Lane never had occasion to deal with the Respondent in this project. 35, The Department of Professional Regulation investigator Augostino A. Lucente investigated the complaint that had been filed by Lawrence Golden and spoke with the Respondent. Respondent indicated that he did not know anything about Mr. Golden or his problem or the fact that roofing repair work had been undertaken by U.S. Seamless Roof Systems. Respondent did indicate to Lucente that James Crosby was using Respondent's certified roofing contractor's license to obtain building permits. Respondent stated that he was trying to do his brother a favor by setting up a company for him in the St. Augustine area. In actuality, James Crosby may not be the brother of Respondent and may in fact be Respondent's cousin. Respondent told Lucente that he had issued the authorization letter, Petitioner's Exhibit 5, and that he had intended to open up a business in the St. Augustine area and to put James Crosby in charge. After about six weeks, Respondent said that he determined that he did not want to do anything with the St. Augustine situation and left everything as it was. This decision came about in September 1982. Respondent also denied any knowledge of the Carriere contract. On October 22, 1986, Petitioner took action against the Respondent in DPR Case Nos. 59109 and 59115 by the entry of a final order disciplining the license which is at issue in this proceeding. A copy of that final order and the underlying administrative complaint may be found as Petitioner's Exhibit 2 admitted into evidence.
The Issue The issues in this 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 At all times material to these proceedings, the Respondent LARRY DAVID COMES, was licensed by the State of Florida as a registered specialty contractor and held license number RX00400762. Mr. Comes is the qualifying agent for D & L Enterprises. At all times material to these proceedings, the Respondent CHARLES J. GOREE was licensed by the State of Florida as a certified general contractor and held license number CG C007621. Mr. Goree is the qualifying agent for CJC Incorporated. In the beginning of the year 1985, the Island Village Association decided to reroof all six buildings located in the condominium project. At the time of the decision, all of the roofs were leaking. The existing roofs had been repaired and patched numerous times since the condominiums were built in 1973. On February 27, 1985, the Respondents COMES and GOREE submitted a joint proposal to the association to remove the existing built-up roof, apply a Neoprene/Hypalon roof, and remove and reshingle the mansard roof for $19,865.00. On April 15, 1985, a written contract was entered into between Island Village Condominium Association and David L. Comes, d/b/a D & L Enterprises, as contractor for the reroofing of Building "C." The Contract required the contractor to furnish all materials and labor to remove the existing built-up roof. Rotten wood on the deck was to be replaced on a time and materials basis. Damaged scuppers were to be replaced and other scuppers were to be cleaned out by the contractor. The Neoprene/Hypalon system would then be applied to the flat roof and the parapet walls. The mansard roof was to be removed and reshingled. Although Charles J. Goree, d/b/a CJC Incorporated, was not named in the contract, the omission was an oversight. At all times during the course of the reroofing project, the Respondent GOREE was responsible for the removal of the existing built-up roof and the application of new shingles to the mansard roof. The Respondent COMES was responsible for the application of the Neoprene/Hypalon roofing system. The reroofing project was a joint undertaking in which Respondents GOREE and COMES exercised equal authority, joint control, or right of control. The Respondents had a community of interest in the performance of the contract with the association. Respondents GOREE and COMES were familiar with what was required of each of them under the verbal joint venture agreement as they had conducted business in the same manner over an extended period of time on several projects. On May 10, 1985, Respondent GOREE applied for and received a building permit for the reroofing of Building "C" at Island Condominiums. During the removal of the built-up roof, GOREE observed "an absolute mess and disaster." The roof had been patched in various ways on numerous occasions. GOREE observed a few "T nails" in a piece of metal stripping picked up with shovels on the roof. The "T nails" discovered were the type which are shot into materials from a nail gun. (See GOREE Exhibit #2) They are not used to secure plywood on a deck because of their short length. Another "T nail," such as GOREE's Exhibit 2, was found by GOREE lying on the area of the roof by the air conditioners. This area of the existing roof was not removed or disturbed during the reroofing process. In the application of his common sense and knowledge of good construction practices and in light of the material in which the "T nails' were located, Respondent GOREE was not put on notice that these "T nails" may have been used to fasten the plywood decking. The type of "T nail" which was used upon plywood roof decking a few years ago in Florida was longer, thicker, and shaped like an elongated wedge. (See GOREE Exhibit 4) None of the "T nails" formerly used for plywood decking were observed by GOREE on the roof. Once the built-up roof was removed, Respondent COMES acted within the terms of the joint venture agreement by applying the Neoprene/Hypalon roofing system in full compliance with the specifications as set forth in the contract with Island Village Condominium Association. During the application of the system, COMES and his crew did not observe any conditions on the plywood decking which would alert them to the possibility of any future problems with the system. On May 17, 1985, Mr. Jim Peaks, an Inspector for Brevard County, completed a "dry in" inspection of the roof on Building "C" which had been requested by Respondent GOREE. Mr. Peaks placed a stop order on the project because the Neoprene/Hypalon roofing system was not an approved product under the Southern Building Code which he believed was in effect in Brevard County on May 14, 1985. In actuality, the 1982 Standard Building Code was in effect at the time. Upon receipt of the stop order, Respondents COMES and GOREE went to the building department and met with Murray Schmidt, Mr. Peaks' supervisor. Mr. Schmidt had the authority to override Mr. Peaks' stop order. Mr. Schmidt, who was new to the county and his position, discussed the stop order with the Inspector. Mr. Peaks refused to remove his stop order because of the lack of code compliance. Mr. Schmidt verbally allowed the Respondents GORE and COMES to continue to work on the roof. Mr. Peaks was told to investigate the roofing system with the Southern Building Code Conference in Birmingham, Alabama. The Respondents were not notified again as to the status of the stop order, one way or the other. Because the Respondents had been told to continue the work on the roof by Mr. Schmidt, who had the authority to override stop orders, the Respondents reasonably assumed that a stop order was no longer in effect. In fact, the permit had the notation "See Murray" on it after the stop order notation. Upon completion of the project, Respondent COMES contacted the building department and requested a final inspection. In the usual course of dealing between contractors and the building department in Brevard County, a contractor is notified only if there is a problem with the project which needs correction before final approval. Neither COMES or GOREE received notification of a problem. Another recognized, usual course of dealing between a contractor and the building department is that the department notifies an owner or the contractor if a six month permit has expired and a final inspection has not been completed. GOREE was not notified of any permit expiration in this case. Again, the Respondents were given the impression by the inactivity in the building department that business was being conducted in the usual manner. The Respondents believed, based upon past and ongoing dealings with the department, that all of their obligations had been met on the reroofing project. On May 28, 1985, the final payment was received from Island Village Condominium Association and a limited warranty was issued in both Respondents' company names, pursuant to the contract with the association. Shortly after completing the job on Building "C," Respondent COMES was called to repair leaks in the new roof. COMES responded promptly and courteously, and placed the blame for the leakage on various factors such as: (1) The short "T" fasteners had begun popping through the Neoprene/Hypalon and destroyed its ability to prevent water penetration. (2) The roof had an inadequate drain system. (3) The plywood deck was bowed in a concave fashion due to the years of improper weight and excess water on the roof. During a meeting with the board of directors of the association requested by COMES, COMES offered to put on a new roof if the board would install sump pumps to remove standing water. The board rejected COMES offer and authorized the condominium property manager to seek other solutions. The Respondents were not contacted by the board again concerning alternative solutions to the problem. In June of 1986, Mr. Rex Lahr, the condominium property manager, began a review of the roof situation. After consulting with Mr. Tom Butler of the county building department, Mr. Lahr decided that an architect needed to be retained by the association to determine whether a structural deficiency or the new roofing system caused the leaks in the roof. An architect was not hired by the association. A traditional, built- up roof was applied over the Neoprene/Hypalon roofing system. In the application of the new roof, the drainage system was redone and the flat roof was given pitch, thereby redesigning the roof as well. Mr. Robert B. Hilson, who was tendered as an expert witness in the case, opined that the Respondents COMES and GOREE failed to properly determine whether the roof deck was in a condition to accept the Neoprene/Hypalon system. Mr. Robert H. Adams, who was tendered as an expert witness in the case, opined that the leaks which developed soon after the application of the Neoprene/Hypalon system indicated that the deck was not in a condition to accept the system. Although there is some basis in fact for the opinions rendered by the two experts, their opinions must be rejected for the following reasons: (1) The experts did not personally observe the building, nor was a determination made which would exclude the possibility that the roofing system failed as a result of structural or design defects. (2) There is ample evidence in the case to support a finding that the leaks were caused by structural or design defects, as well as latent defects not readily observable to the Respondents at the time the roofing system was applied, and outside the terms of the reroofing contract. Some examples of evidence which support a finding that the leaks were caused by structural or design defects are: (1) Mrs. Delores Hammels' testimony that all six buildings had to be reroofed as they all leaked periodically throughout their 12 years of existence; (2) the redesign of the drainage system and the placement of a pitch on the roof by Mr. Roush; (3) the testimony and sketch submitted by Respondent GOREE (GOREE Exhibit #5) which shows that an identical building with a pitch on the roof allows the drainage system, including the internal hidden piping system, to work correctly. The effective redesign of the roof by Mr. Roush confirms this theory as much as, or more than, Mr. Robert H. Adams' theory that the deck was not in a condition to accept the Neoprene/Hypalon system.
The Issue Does the unsatisfied civil judgment in ABC v Millman et al, Case Number 50 2008 CA 006245 XXXX MB relate to practice of Respondent’s profession, thus establishing that Respondent, Harris M. Millman, violated section 489.129(1), Florida Statutes,(2009)? If he committed the violation, what penalty should be imposed?
Findings Of Fact The Construction Industry Licensing Board has certified Millman as a General Contractor and a Roofing Contractor under the authority of Chapter 489, Florida Statutes. In 2009 and 2010, he held license numbers CGC l1522 (General) and CCC 1327057 (Roofing). Millman’s licenses are presently inactive. Millman has actively practiced the licensed professions of general contractor and roofing contractor in Florida since 1977. The Department and its predecessor agencies have never taken any disciplinary action against him. At all times material to this proceeding, Affiliated was a Construction Qualified Business in the State of Florida, certified under Chapter 489, Florida Statutes, holding license number QB45287. Millman was the Primary Qualifying Agent for Affiliated under Chapter 489, Florida Statutes, at all times material to this proceeding. On December 26, 2005, Millman signed a credit application with American Builders and Contractors Supply Company, Inc., d/b/a ABC Supply Co. Inc. (ABC), on behalf of Affiliated. Millman listed his Certified General Contractor’s License (CGC 011522) on the credit application and personal guarantee Although Millman provided his General Contractor’s license number on the application, ABC did not require a license number. The application indicates that the account is related to “low and steep slope roofing.” The account was for the purchase of roofing materials and supplies. On December 29, 2005, Millman signed a personal guarantee of the Affiliated account with ABC. Millman’s personal guarantee made him personally liable for Affiliated’s obligation to pay ABC. ABC granted the application and opened a line of credit for Millman and Affiliated. Millman and Affiliated used the account to purchase roofing supplies on credit. They purchased and paid for over $800,000 worth of supplies from 2006 into 2009. This is separate from the goods and materials that were the subject of the lawsuit described below. Most of the materials and supplies that Affiliated purchased on the ABC account were for specific roofing projects. But some, as Millman acknowledged in his testimony, were to maintain roofing materials in the Affiliated warehouse. He used these on small jobs and to supplement materials purchased for larger, specific jobs. All the goods and materials purchased related to Millman’s practice of the roofing contracting profession. In 2007 Millman and Affiliated started having financial difficulties. Millman’s business began failing. The failure of a lender that took over a construction project it was financing resulted in the lender not paying Millman for approximately $500,000 worth of his company’s work. This contributed to Millman’s business failure. In addition to Millman’s problems paying ABC, his landlord was evicting him. Millman worked hard during these difficulties to meet his obligations to ABC. He liquidated his Individual Retirement Account and his life savings to make sure he paid for all charges for supplies used for specified customers. He did this to protect customers from the risk of liens being placed on their properties. Millman advised ABC that he was being evicted from his warehouse. He told ABC that the warehouse contained materials obtained with his line of credit that had not been paid for. Millman did not have the ability to return the materials to ABC. As eviction neared, he urged ABC to retrieve the materials before eviction. ABC did not act to retrieve the materials. The landlord evicted Millman. What happened to the materials is not known. On March 4, 2008, ABC sued Millman and Affiliated in the Circuit Court of the Fifteenth Judicial Circuit in and for Palm Beach County, Florida. ABC sought payment for goods and materials purchased on the account and delivered to Millman and Affiliated between January 31, 2007, and January 31, 2008. The court assigned the action Case Number 50 2008 CA 006245 XXXX MB. The goods and materials for which ABC sought payment were roofing goods and materials. They included roofing felt, roofing cement, shingles, plywood, lumber, roofing nails, lead sheets, insulation, roof tile cement, lead boots for pipes, roofing paint, asphalt, and galvanized roof edging. Much, although not all, of the material was delivered to roof tops. Many invoices for the material describe the roof for which the material is intended by height and pitch. The goods and materials related to Millman’s profession of roofing contractor. On June 17, 2008, barely three months after ABC filed suit, Millman entered into a Stipulation for Payment with Judgment upon Default with ABC. Millman agreed in the Stipulation for Payment with Judgment upon Default, that both he as an individual and Affiliated are indebted to ABC in the amount of $45,617.02. This amount included interest, attorney’s fees, and costs. The stipulation included a schedule of eight payments starting with a payment of $2,500.00 on May 30, 2008, and ending with a payment of $22,720.02 on December 30, 2008. Millman made payments from January 1, 2007, forward, even during and after the collection litigation. Millman made over $16,000.00 of those payments. But he did not make all of them. As Millman made payments, he took care to designate payments for supplies allocated to a specific customer and job. He did this to protect his customers from liens and to make sure that documents he signed attesting that supplies for specific jobs had been paid for were honest and correct. On August 3, 2009, the court rendered a Final Judgment After Stipulation in ABC’s collection action. The court adjudged that ABC recover $29,617.02 together with interest at the rate of 11 percent per annum accruing from May 31, 2008, from Affiliated and Millman, jointly and severally. The judgment is for debt incurred relating to Millman’s practice of his licensed profession of roofing contracting. It is not related to Millman’s licensed profession of general contracting. ABC continued to actively pursue collecting the judgment. It garnished Millman’s bank account with Bank Atlantic and obtained $662.61. Millman and Affiliated have not fully satisfied the judgment within a reasonable period of time. The Department incurred $216.00 in costs for the investigation and this action.
Recommendation Based on the foregoing Findings of Fact and Conclusion of Law, it is recommended that the Department of Business and Professional Regulation, Construction Industry Licensing Board, enter a final order finding that Respondent, Harris M. Millman, violated Section 489.129(1)(q), Florida Statutes, and imposing the following penalties: Payment of an administrative fine of $500.00 within 180 days of entry of the final order. Payment of costs of investigation and prosecution in the amount of $216.00 within 180 days of entry of the final order. DONE AND ENTERED this 27th day of August, 2010, in Tallahassee, Leon County, Florida. S JOHN D. C. NEWTON, II Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 27th day of August, 2010.
Findings Of Fact Respondent has been continuously, actively licensed by the Construction Industry Licensing Board since May 1983, having been issued license number RE 0043386. Since then, he has been the qualifying agent for Bradley Roofing Co. Respondent's business address of record is 3067 N.W. 54th Street, Miami, Florida, 33142. Respondent's disciplinary record (P-14) refers to imposition of discipline by fine on two prior occasions and temporary suspension for failure to pay one fine, but only one of these disciplines is documented in the attachments. That discipline was imposed for pulling a permit for an unlicensed contractor and not qualifying that contractor's name. D.O.A.H. Case No. 86-4427 (Boca Entrada) On or about October 11, 1982, Respondent entered into a contract to perform a complete reroofing job for $17,700. The invoice/contract presented at hearing as P-1 shows the job location as "10110 West Boca Entrada Boulevard, Building No. 101 of Plat 1 of Boca Entrada Subdivision, Boca Raton, Florida." This building was referred to as "Boca Entrada One" by several witnesses. Another typewritten job location on the invoice/contract has been crossed out. This exhibit indicates the job was sold to "Clinton Construction Co.," but this line has also been altered. Neither alteration was initialed by anyone. The contract was executed on behalf of Bradley Roofing Co. by Robert Bradley, the Respondent herein. One signature on behalf of the owner is illegible. The other signature reads, "E. J. Pollock, agent." Respondent testified he made out the contract to "George Pollock," who is apparently one and the same as E. J. Pollock." Mrs. Miller, a longtime resident of the Boca Entrada premises which was previously a rental unit and is now organized as a condominium, is also Treasurer of the current condominium association. She testified that Pollock did not work for either Boca Entrada Enterprises nor Clinton Construction Co. but that he was project manager for either "Boca Entrada Two" or "Boca Entrada Two" and "Boca Entrada Three" (two buildings at the same location which were built after Boca Entrada One). Respondent conceded that he contracted to do a new roof on two of the three buildings located at the address on the contract and to reroof another building at that address and that he completed the work contracted-for. Respondent failed to obtain a permit to reroof any of the buildings at the address on the contract. Respondent relied first upon George Pollock and then upon someone named George Lopez, both of whom he thought were associated with Clinton Construction, to obtain a permit for roofing the other two buildings because he felt that he, Robert Bradley, and Bradley Roofing Co. were in the position of a subcontractor to Clinton Construction Co. for the two buildings being constructed from the ground up. No other person or firm obtained a permit for the building specifically named on the contract. The three Boca Entrada buildings are located in Palm Beach County, Florida. Although no Palm Beach County ordinance was introduced to this effect, George Froehlich, an investigator for the Palm Beach County Construction Industry Licensing Board, testified that Palm Beach County requires that all roofing contractors working within the county limits be either locally certified or state certified. Respondent is not a state certified roofing contractor. See Section 489.105(6) and (7), Florida Statutes. Rather, he is a state registered roofing contractor. See Section 489.105(3)(e), Florida Statutes. The licensing package (P-14) shows he was not even a registered roofing contractor until May 1983, some seven months after contracting at Boca Entrada. He is not charged with operating without a state license, but it is clear that Respondent was not at any time relevant to the administrative complaint certified by either the State of Florida or the County of Palm Beach, nor was he even registered (licensed) in Florida. The Standard Building Code is in force in Palm Beach County. Section thereof requires that a permit be obtained before commencing the type of work Respondent did at Boca Entrada. It provides: Any individual, partnership, firm, corporation or other business organization that is the owner or lessee of property, who desires that work as described below be per- formed on said owned or leased property, shall make provisions for an applicant, properly qualified under the ordinances regulating the certification and licensing of contractors, owner-builder and lessee-builder, to file an application for and obtain the required permit from the building official prior to commencing work for the following: 2. Install, replace or resurface roofing, or make repairs. Had Respondent been a state-licensed contractor and qualifier for his company, it would have clearly been his responsibility to assure himself that all necessary permits were obtained in a timely fashion, but as it was, Respondent was simply operating outside the law by performing contracting work on the Boca Entrada job without being licensed and without obtaining or determining whether anyone else had obtained a permit for said job. Respondent gave a 10 year warranty on his work in 1982 and despite some haphazard and unsupported hearsay testimony of his failure to respond to individual tenants calls and condominium association letters, it was established that he honored his warranty by fixing or having someone fix leaks on one occasion in 1985 and one occasion in 1986. D.O.A.H. Case No. 86-4428 (Polsky Home) On or about June 11, 1985, Respondent entered into a contract with Edward Polsky to reroof Polsky's home at 10070 East Calusa Club Drive, Coral Gables, Dade County, Florida. Respondent failed to obtain a county permit to reroof the above residence before beginning work on Polsky's home. No other person or firm obtained a permit for the Polsky job during any period relevant to the administrative complaint. Respondent did obtain a county permit on February 19, 1987, long after the original reroofing project had been completed. Due to contrary testimony by others and the date of this permit in relation to the administrative complaint and hearing in this cause, Respondent's excuse that his obtaining this permit was done to replace a former lost permit for the Polsky job is rejected as absolutely without credibility. The South Florida Building Code is in force in Dade County. Section thereof requires that a permit must be obtained before commencing the type of work Respondent engaged in at the Polsky home. It provides: Permits, to be issued by the building official, shall be required for the following operations: k. The application, construction or repair on any roof covering as provided in Chapter 34, exceeding three hundred dollars ($300.00) in value of labor and materials, as determined by the building official, or for work exceeding in roofing squares in extent. It was Respondent's responsibility, as a licensed contractor and as qualifier for his company, to assure himself that all permits were obtained in a timely fashion, but Respondent performed contracting work on the Polsky job without obtaining or determining whether anyone else had obtained a permit for said job. Respondent issued a ten year warranty on his job for the Polskys. Although Respondent honored his warranty to some extent by appearing to do some repairs in response to complaints by Mrs. Polsky he did not coordinate his work to her schedule as promised. His explanation is that he could not come out to do repair work when it was raining. Although Respondent proved that he provides his home telephone number on his contract papers so that customers can reach him, it is unrefuted that Mrs. Polsky knew both numbers and called Respondent at either home or office numbers daily over a period of six months to report the problems with her roof, including persistent leaks, which she believed to be under warranty. No adequate response was made by Respondent to her requests. Charles H. Walton was accepted to give expert testimony in roofing contracting. He testified that the work Respondent did on the Polsky roof involved putting a whole new roof over the old roof. This method is not contrary to the applicable codes but it does not meet the terms of the contact which Respondent entered into with the Polskys. That contract called for the old roof to be torn off and done new. He opined that Respondent's work on the Polsky roof constituted gross negligence for the foregoing reason, because there was no insulation at all in the roof as required by the contract, because proper precautions were not taken with the details of flashings, (especially at change of elevations), and because of insufficient precautions with installation of the drain system. As mitigation, Walton noted that Respondent actually upgraded the Polsky contract specifications by installing 3/4-inch urethane which is better than the fiberboard rigid installation called for by the contract. The suggestion that the ornamental wood of the house prevented the flashings being made secure is an insufficient excuse for the poor quality of work done.
Recommendation Upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED: That Petitioner enter a final order in its case 0066199 (Boca Entrada) dismissing that cause for lack of jurisdiction, and a final order in its case 71433 (Polsky Home) finding Respondent guilty of one violation of Section 489.129(1)(d) and fining him $1,000.00 therefor, and finding Respondent guilty of misconduct/gross negligence in the practice of contracting and suspending his license for one year therefor. DONE AND ORDERED this 13th day of July 1987, in Tallahassee, Florida. ELLA JANE P. DAVIS, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 13th day of July 1987.
The Issue The issues in this case are whether Respondent engaged in the unlicensed practice of contracting, and, if so, what penalty should be imposed.
Findings Of Fact The Department is the state agency responsible for, inter alia, licensing and monitoring general contractors. Department headquarters are in Tallahassee, Florida. Part and parcel of the Department's duties is the sanctioning of persons who practice general contracting without a license. Respondent is an individual living in Tampa, Florida. Respondent did not appear at final hearing and has not filed any post-hearing motions concerning his failure to appear. The Administrative Complaint filed by the Department makes the following allegations: Respondent was not registered or certified to engage in the practice of contracting. Respondent, doing business as J.D.S. Roofing, contracted with Vivian Virgil to perform certain roofing work, specifically, to remove and replace shingles and related work to reconstruct the roof on Virgil's home. A contract between the parties dated April 21, 2006, was signed by Virgil and Respondent (or his authorized representative). Virgil made two payments to Respondent in the amounts of $2,500.00 (via check number 1037) and $1,564.46 (via check number 1040). She also made a payment of $2,860.54 to The Home Depot to pay for materials ordered by Respondent for Virgil's roofing repairs. Respondent then made the contracted-for repairs and replacement of Virgil's roof pursuant to the contract.2 Virgil, however, was not pleased with the quality of the work. She is unable to get a warranty on the roof because Respondent's work was inferior. Virgil must have another contractor re-do the roof in order to get a warranty. Neither Respondent nor his company, J.D.S. Roofing, is or has ever been licensed by the State of Florida as a contractor. However, Respondent held himself out as a general contractor in his dealings with Virgil.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered by the Department of Business and Professional Regulation finding that Respondent, James Delaughter, is guilty of the unlicensed practice of contracting and imposing a fine of $5,000.00. DONE AND ENTERED this 8th day of April, 2008, in Tallahassee, Leon County, Florida. R. BRUCE MCKIBBEN Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 8th day of April, 2008.
