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 The issue for determination is whether Respondent committed the offenses set forth in the Administrative Complaints and, if so, what penalty should be imposed.
Findings Of Fact It is undisputed that at all times material hereto, Respondent was licensed by the State of Florida as a Certified General Contractor, having been issued license number CG C58099. Respondent passed the licensing examination in August 1995. Case No. 99-0261 Respondent is not a licensed roofing contractor. Respondent's Certified General Contractor's license did not and does not permit him to obtain roofing permits to perform any type of work on roofs. Respondent's Certified General Contractor's license number was not low enough for him to be grandfathered in by the State to allow him to lawfully perform roofing work with his Certified General Contractor's license. On or about February 23, 1998, Delfina Valdes contracted with Johnny Hatcher, d/b/a Hatcher's Roofing, to repair the roof on her residence located at 18101 Northwest 32 Avenue, Miami, Florida. They contracted for Hatcher to remove Valdes' old roof and install a new roof at a cost of $4,000. Valdes paid Hatcher $2,000 as a down payment toward the cost of the roof's repair. At no time material hereto was Hatcher a licensed roofing contractor. Furthermore, at no time material hereto was Hatcher's Roofing qualified by the State of Florida to perform contracting. Hatcher removed the roof from Valdes' residence. After removing the roof, he did not perform any more work. Respondent met with Valdes and represented to her that Hatcher was working for him. Respondent further represented that he would obtain the permit for the roofing work. Respondent paid Cayetano Alfonso to obtain a roofing permit for the work on Valdes' roof. On or about March 26, 1998, Alfonso made application to Metropolitan Dade County, Department of Planning, Development and Regulation for the roofing permit, which was subsequently issued. Alfonso was a Certified General Contractor who was licensed to perform roofing work. Alfonso's Certified General Contractor's license number was low enough for him to be grandfathered in by the State to allow him to lawfully perform roofing work with his Certified General Contractor's license. Alfonso was not the qualifier for Hatcher's Roofing nor was he Respondent's qualifier. Alfonso did not enter into the contract with Valdes for repairing her roof. Alfonso was not a party to the contract for repairing Valdes' roof. An inference is drawn and a finding of fact is made that Hatcher was not acting on behalf of Alfonso when he entered into the contract with Valdes. An inference is drawn and a finding of fact is made that Respondent was not acting on behalf of Alfonso when he represented to Valdes that he would obtain the permit for the roofing work. When Respondent discovered that Hatcher had received a $2,000 deposit from Valdes, he requested Alfonso to cancel the permit. On or about April 20, 1998, Alfonso cancelled the roofing permit. On or about June 5, 1998, Valdes cancelled the contract between her and Hatcher Roofing. Valdes received a refund of the $2,000 from Hatcher, through a third party, that she had paid him. Case No. 98-4859 On or about April 9, 1995, Respondent entered into a contract with Susan Casper to construct an addition to her residence located at 17350 Northeast 12th Court, North Miami Beach, Florida, at a cost of $38,135. Casper paid Respondent $36,285.00 toward the cost of the addition. Respondent was not licensed at the time that he entered into the contract. On or about March 20, 1996, Respondent obtained a permit from the Metropolitan Dade County, Department of Planning, Development and Regulation for the work on the addition. Several delays were encountered during the performance of the work. Some of the delays resulted from changes by Casper, which changes required approval by Metropolitan Dade County, Department of Planning, Development and Regulation; however, most of the delays were Respondent's own doing. In October 1996, Casper paid $2,588 to Best Truss Company for a claim of lien filed on her residence, associated with the work being performed on her residence. Respondent worked sporadically on Casper's addition through April 1997. He would inform her at times that he was returning but failed to return. At one point, Casper's children constructed a sign in their own handwriting, instructing Respondent to keep out and indicating that there was no trespassing by him. The sign was posted on the door of Casper's residence. Casper informed Respondent that her children constructed the sign. It was obvious that the keep out, no trespassing sign was constructed by children. Respondent's assertion that he was kept away from Casper's residence by the children's sign is not credible. Even after the children's sign was posted on the front door of Casper's residence, Respondent agreed with Casper to resume work, and he did so. However, his work was sporadic. In or around June 1997, Casper sought assistance from the Metropolitan Dade County, Department of Planning, Development and Regulation to get Respondent to complete the work. In July 1997, Respondent obtained a window permit for the work on Casper's residence. After July 1997, Respondent ceased working on Casper's residence. He did not provide Casper with any notice that he was ceasing work. Respondent had no valid reason for ceasing the work. In September 1997, Casper transferred the permit for the work on her residence from Respondent's name to her name. Respondent failed to perform all the work under the contract. Some of the work performed by Respondent or caused to be performed by Respondent contained code violations and needed correcting. Certain work performed by Respondent or caused to be performed by Respondent needed correcting. Wood doors, glass block, electrical work, and a sprinkler were in need of correction. Casper bore the expense of the corrections. The corrective work was completed at a cost of $1,675.00. The value of the work performed by Respondent on Casper's residence was $18,272, minus the cost of the corrective work of $1,675, which equals a total value of the work at $16,597. This cost value includes overhead and profit. Even though the value of the work by Respondent was $16,597, Casper paid Respondent $36,285, a difference of $19,688. Casper hired a new contractor on or about September 17, 1997, to complete the construction on her residence at a cost of $16,350. As to Case No. 98-4859, as of January 26, 1999, Petitioner incurred a cost of $1,108.76 for the investigation and prosecution of Respondent. Petitioner previously disciplined Respondent for violating Chapter 489, Florida Statutes (1995), including violating Subsection 489.127(1)(k), Florida Statutes (1995), abandonment of a construction project.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Business and Professional Regulation, Construction Industry Licensing Board enter a final order and therein: As to Case No. 99-0261, finding that Respondent violated Subsection 489.129(1)(e), Florida Statutes (1997). As to Case No. 98-4859, finding that Respondent violated Subsection 489.129(1)(k), Florida Statutes (1997), in Count I; and dismissing Count II. Revoking Respondent's license. Ordering Respondent to pay restitution to Susan Casper in the amount of $19,688.00. DONE AND ENTERED this 31st day of October, 2000, in Tallahassee, Leon County, Florida. ERROL H. POWELL 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 31st day of October, 2000. COPIES FURNISHED: Diane Snell Perera, Esquire Department of Business and Professional Regulation 401 Northwest 2nd Avenue, Suite N607 Miami, Florida 33128 Richard F. Hayes, Esquire 10300 Sunset Drive, No. 499 Miami, Florida 33173 Rodney L. Hurst, Executive Director Construction Industry Licensing Board Department of Business and Professional Regulation 7960 Arlington Expressway, Suite 300 Jacksonville, Florida 32211-7467 Barbara D. Auger, General Counsel Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792
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.
Findings Of Fact At all times material hereto, Respondent was licensed by the Construction Industry Licensing Board as a registered roofing contractor (RC- 0034055), building contractor (CB-C033206), and certified roofing contractor (CC-C035625). At the time of hearing, license RC-0034055 had expired and was no longer in effect. Although Petitioner introduced a "certification of licensure", executed by its custodian of records which purports to establish prior disciplinary action by the Construction Industry Licensing Board against Respondent, said certification references license number CG-C024378. There is no documentation in the record to establish that Respondent has license number CG-C024378, and in any event if this is, in fact, his license, this case does not involve license number CG-C024378. The records' custodian was not present to testify or to be cross-examined, and therefore this apparent discrepancy in the certification is unexplained. Further, the only documentation introduced to support prior disciplinary action by the Board against one of Respondent's licenses, is a certified copy of an order dated August 7, 1985 (Case No. 0051210), but this case involves license RC-0034055, which expired in July 1987 and is no longer in effect. Therefore, it has not been established by evidence in this record that Respondent has previously been subject to disciplinary action by the Construction Industry Licensing Board concerning his current valid licenses, CB- C033206 and CC-C035625. Respondent was the qualifying agent at all times material hereto, of Unique Construction, Inc., 1302 North Clearview Avenue, Tampa, Florida. On February 25, 1986, George Katsarelis entered into a sales contract with Unique Construction, Inc., to reroof his entire house at 6 Venetian Court, Tarpon Springs, Florida. Respondent was not present when the contract was executed, and had not met Katsarelis at the time work commenced on the job. Katsarelis specified to the salesman representing Unique Construction, Inc., that he wanted to be sure all required local permits were pulled for this job. Work on the Katsarelis roof began within only a few days of the execution of the sales contact. Crews from Unique Construction tore off approximately 80% of the Katsarelis roof before a City of Tarpon Springs building inspector stopped work on the job because no permit had been obtained. Thereafter, it took two days for Unique to put a temporary cover over Katsarelis' uncovered roof while a permit was being obtained. A permit was finally obtained on March 19, 1986, and the work was completed. Katsarelis paid Unique Construction, Inc., $7,000, the full contract amount, for reroofing of his home. Between February 25, 1986, and December 1987, Katsarelis had to repeatedly call Unique Construction since his roof leaked every time it rained. A ten foot ceiling section in his Florida room eventually caved in due to these leaks. In December 1987, Respondent came to Katsarelis' home for the first time and decided to reroof the whole house for a second time. No additional payment was required or made by Katsarelis for this second reroofing job. After a hard rain in April 1988 his roof again leaked, and within a week prior to hearing, Respondent made a third attempt to correct Katsarelis' leak problem. According to expert testimony and evidence offered at hearing by Owen Baynard, who was accepted as an expert in roofing, work performed by Unique Construction on the Katsarelis roof was incompetent and the result of a lack of proper supervision of the work crews by the qualifying agent, Respondent. The job fails to meet the standards of local building practices. There was improper and insufficient preparation of the roof surface, a lack of adequate adhesive, nailing, and mopping to meet Sections 101, 107, 109 and 113 of the Southern Standard Building Code Roof Coverings standards, applicable in this case. The only way to remedy Katsarelis' continuing leak problem is to completely redo all work done by Unique Construction on his roof, and completely reroof his house in a workmanlike manner. As qualifying agent for Unique, Respondent was responsible for beginning work on Katsarelis' roof without obtaining or assuring that someone else had obtained a local permit for the job. A permit was not posted on the site when this work began, in violation of local building code requirements. Respondent failed to obtain required local building department inspections on the job. Respondent's actions on the Katsarelis job, as qualifying agent and in actions taken personally on two occasions to correct continued leakage, were incompetent and of substandard quality. On December 17, 1986, Lawrence E. Burkett entered into a sales contract with Unique Construction, Inc., to reroof his home on 62nd Avenue, N.E., in St. Petersburg, Florida. Work commenced shortly after this contract was executed, and upon completion Burkett paid Unique $3,657, the contract amount. Respondent admits that leaks continued to exist in Burkett's roof for nine or ten months after Unique's crews worked on his roof. Finally, on September 16, 1986, Unique's crew replaced a section of roof and this corrected the leaking. In an attempt to correct or prevent damage from leakage, Unique's crews installed pans between Burkett's drop ceiling and the roof to catch water which was leaking into his Florida room. A permit was not posted on the Burkett job, but the record does not establish whether a local permit for this job was required to be posted. On or about February 23, 1987, Respondent was issued a letter of reprimand by the United Construction Trades Board of the City of Tampa. However, no action was taken against his local certificate. This reprimand resulted from a roofing job performed by Respondent on the home of Gerald T. Minnick in late 1986. Repeated attempts by Respondent to correct leakage in the Minnick roof failed.
Recommendation Based upon the foregoing, it is recommended that the Construction Industry Licensing Board enter a Final Order suspending Respondent's licenses numbered CB-C033206 and CC-C035625 for a period of six (6) months and imposing an administrative fine of $2,500; provided that after the expiration of thirty (30) days from the issuance of the Final Order if Respondent pays said fine in full, his license shall be immediately reinstated. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 5th day of August, 1988. DONALD D. CONN Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1050 Filed with the Clerk of the Division of Administrative Hearings this 5th day of August, 1988. COPIES FURNISHED: David Bryant, Esquire 220 East Madison Street Tampa, Florida 33602 William E. Whitlock, III, Esquire 116 East 3rd Avenue Tallahassee, Florida 32303 Fred Seely, Executive Director Department of Professional Regulation Construction Industry Licensing Board Post Office Box 2 Jacksonville, Florida 32201 William O'Neil, Esquire General Counsel Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 =================================================================
Findings Of Fact At all times material hereto Respondent has been a registered roofing contractor in the State of Florida, having been issued license number RC- 0042963. At no time material hereto did Respondent's license qualify "Energy Plus Roofing" with Petitioner. Notice of the final hearing herein was provided to Respondent at his last known address of record in Bradenton, Florida, as shown on his Election of Rights form. The notice was not returned by the post office as "undeliverable" or for any other reason. In April, 1988 Respondent entered into a contract to perform certain roofing work for John Beede at a contract price of $1,610. Respondent executed this contract on behalf of Energy Plus Roofing, and provided a ten year warranty on workmanship and materials. Beede paid the full contract price to Respondent for work performed, but Respondent failed to correct leaks in Beede's Florida room. In fact, after the job Beede had additional leaks in his Florida room. Respondent failed to respond to several calls from Beede for further corrective work under the ten year warranty. Finally, Beede had to have a "roof over" constructed to correct the leaks in his Florida room at an additional cost of $4,000. Respondent did not obtain any permit from Manatee County for the work he performed for Beede, although Manatee County requires contractors to obtain permits for such jobs in excess of $200. Additionally, Respondent did not register "Energy Plus Roofing" with Manatee County, although Manatee County does require such registration. In March, 1986 Respondent entered into a contract with Marie Allen for roof repair on her mobile home in Ruskin, Hillsborough County, Florida. Allen did not have any leaks in her roof at the time, but she was simply seeking preventive maintenance. Respondent contracted with Allen on behalf of Energy Plus Roofing to pressure clean her roof and "apply energy plus roof system to (her) existing roof" for a contract price of $1,000. Respondent provided a ten year warranty on workmanship and materials. After Respondent's crew pressure cleaned her roof, Allen began experiencing leaks, and she presently continues to have four leaks which she did not have before work was performed by Respondent. She has tried repeatedly to contact Respondent under the warranty, but has been unsuccessful. Respondent is not registered in Hillsbourough County, and he did not obtain any permits for the Allen job. Hillsborough County requires contractors to be registered and to obtain permits for jobs such as he performed on Allen's roof. The only name on Respondent's license is his own individual name, Emanuel Fred Mosley.
Recommendation Based upon the foregoing, it is recommended that Petitioner enter a Final Order suspending Respondent's registration for a period of one (1) year and imposing an administrative fine of $1,000 upon Respondent. DONE AND ENTERED this 4th day of May, 1987 in Tallahassee, Florida. DONALD D. CONN 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 4th day of May, 1987. APPENDIX TO RECOMMENDED ORDER, CASE NO. 87-0442 Rulings on Petitioner's Proposed Findings of Fact: Adopted in Finding of Fact 1. Adopted in Finding of Fact 2. 3-8 Adopted in Finding of Fact 4. 9 Adopted in Finding of Fact 5. 10-14 Adopted in Finding of Fact 6. 15-16 Adopted in Finding of Fact 7. COPIES FURNISHED: W. Douglas Beason, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, FL 32399-0750 Emanuel Mosley 5707 5th Street East Bradenton, FL 33507 Fred Seely Executive Director Construction Industry Licensing Board Post Office Box 2 Jacksonville, FL 32201 Van Poole, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, FL 32399-0750 Joseph A. Sole General Counsel Department of Professional Regulation 130 North Monroe Street Tallahassee, FL 32399-0750
The Issue Petitioner, the state agency charged with regulating the practice of contracting pursuant to Section 20.30 and Chapters 455 and 489, Florida Statutes, filed an administrative complaint dated May 20, 1986. Thereby, it has charged Respondent with violations of Sections 489.119, 489.129(1)(g), (j), and Florida Statutes, for which violations it seeks to impose, according to its post-hearing proposal, the requirement of $5600 restitution to Mr. Kenneth Jessell, a fine of $1500, and a one year suspension of Respondent's contractor's license. BACKGROUND AND PROCEDURE The parties' Joint Prehearing Statement was admitted as Hearing Officer Exhibit 1. Petitioner presented the oral testimony of Kenneth A. Jessell, Richard P. Scanlon, Gene O. Seymour, and Robert D. Hilson, and had admitted Petitioner's Exhibits 1, 2, 4, 5 and 6. Exhibit P-3 was marked for identification and proffered but not admitted. Respondent presented the oral testimony of Sheldon Israel and Respondent and had admitted Respondent's Exhibits 1, 2, and 4. Exhibit R-3 was marked for identification and proffered but was not admitted. At the close of hearing, Respondent moved for dismissal for failure of Petitioner to establish a prima facie case. That motion was taken under advisement and is addressed in the following conclusions of law. Upon the filing of a copy thereof as a post-hearing exhibit, judicial notice was taken of Section 3401.1(a)(3) South Florida Building Code, without objection. Petitioner filed transcript herein, and the parties' timely filed their respective post-hearing proposals within the time extensions agreed-upon and granted. The parties' respective proposed findings of fact are ruled upon pursuant to Section 120.59(2), Florida Statutes, in the appendix to this recommended order.
Findings Of Fact Respondent is, and has been at all times material hereto, a certified roofing contractor, license number CCC02955I, whose address of record is 2311 N. E. 35th Street, Lighthouse Point, Florida 33064. On or about June 6, 1985, Respondent, doing business as Great Southern Industries, contracted with Mr. Kenneth Jessell to install a roof on Jessell's house at Lighthouse Point, Florida. The contract price was $5,600. At no time relevant to the charges herein did Respondent or anyone else qualify Great Southern Industries nor did that name appear on Respondent's license. At hearing, Respondent admitted a violation of Section 489.129(1)(g), Florida Statutes, by acting in the capacity of a contractor under a name other than that appearing on his state certificate, and further admitted violation of Sections 489.129(1)(j) and 489.119, Florida Statutes, by failing to qualify a legal entity through which he was contracting. The parties stipulated those allegations of the complaint were to be considered proven. In mitigation, Respondent established that no fraud or deceit concerning who was actually performing the roofing work was perpetrated against Mr. Jessell, that Respondent's omissions were due to his misunderstanding of the legal requirements involved, and that at all times since its incorporation, August 31, 1984, Respondent has been sole shareholder, officer, and director of Great Southern Industries, Inc., a Florida corporation. Upon being made aware of his violations, he has ceased to do business as Great Southern Industries. There is no evidence of prior misconduct. Respondent, as Great Southern Industries, partially completed work on Jessell's house and Jessell partially paid for said work when a dispute arose between Respondent and Jessell relative to the work. Respondent began work on Jessell's roof on June 17, 1985. On June 18, 1985, a pitch fire broke out. The pitch fire resulted from a tar kettle which had not been appropriately handled by an employee of Respondent who had been assigned to tend it. Such fires are not uncommon in the industry. After the fire was put out, work ceased for the day, but Respondent appeared the very next day and continued with the roofing project. There is expert testimony that leaving such a pitch or tar fire unattended was negligent and that if the overly hot pitch or tar had then cooled overnight, been reheated, and used on Jessell's roof it would have been inadequate for the job. However, there is no direct credible testimony or documentary evidence that this is what actually occurred. Mr. Jessell was not present on the site the next day and approximately 60-70 percent of the base layer of the roof had been tarred over before this event occurred. Mr. Jessell is a college professor in finance and real estate. He has no expertise in contracting, roofing, or inspection of such jobs or the material used therein, but upon observation from the ground, without going onto the roof, Jessell decided the roof was not being properly constructed. On June 25, 1987, at Mr. Jessell's insistence, Gene O. Seymour, the Chief Building Inspector of the Broward County Building Department inspected the job, which he did not approve at that time. Respondent came back to conform the job to the inspector's concerns. Seymour did not approve the job at reinspection on July 1, so Jessell withheld payment. Respondent again returned and did some additional work. On July 9, the job again did not pass inspection. Respondent did further repairs on July 29. There were numerous other inspections but the job did not pass for one reason or another. On each occasion, Respondent came back to address the inspector's concerns. Seymour's testimony can be synopsized that he made an extraordinary number of inspections (at least 20) at Mr. Jessell's urging, and that the roof often failed to pass, mostly because the work was not yet fully completed. Inspector Seymour noted that sometimes the job would pass one inspection only to have Jessell call him back and show him new problems which had appeared in the interim. Seymour could not explain how this could be. He termed the job "jinxed." Respondent maintains, and Jessell denies, that Jessell frequently would go up on the roof and make suggestions to Respondent and his employees on how the roofing should be done, that Jessell pulled up on the felts, and that Jessell otherwise damaged the work done by Respondent and his crew. Having observed the respective candor and demeanor of Jessell and Respondent, and after considering and weighing the foregoing comments of Inspector Seymour and of all the witnesses' peripheral testimony on how rapid deterioration and excessive patching occurred, I find Respondent's explanation of the problems up to this point to be the more credible explanation, if a somewhat exaggerated one. Up until August 22, 1985, Respondent came and fixed anything Jessell complained of or that had been noted by an inspector. Finally, on August 22, Inspector Seymour approved the job as ready for the addition of tiles. Jessell was still dissatisfied with the roof.. By this time, he had been up on it several times with and without Seymour. Jessell took photographs and sought out Seymour in his office. Seymour rescinded his approval due to the appearance of new water blisters. Both Jessell and Seymour concur that at this point there were no leaks. On August 30, Seymour inspected again. He cut deeply into the roofing material in three places; in each place, he cut down to the base plywood sheeting and found no evidence of any water. This type of testing is considered "destructive testing." He also observed gouges, slashes, and nails working out. He proposed that Jessell get an independent consultant to resolve the problems between them. Respondent obtained a visual inspection by Sheldon Israel who wrote a letter which was signed off on by a certified architect and which confirmed that the roof as completed by Respondent thus far complied with the intent of the South Florida Building Code, which Code has been adopted in Broward County. On September 20, Seymour gave final approval for the stage the job had reached based on the letter from Israel and the fact that the waterproof membrane which Respondent had installed was intact at that time. Thereafter, Jessell hired Richard Paul Scanlon, a licensed and certified roofer, who eventually tore off what had been done by Respondent and did a complete "reroof" at a cost to Mr. Jessell of $6500. Scanlon, qualified at hearing to give expert evidence in roofing contracting, saw the roof in January 1986, approximately six months after Respondent had left the job. During those six months, the unfinished roof had been sitting exposed to the elements, without tiles, and with numerous patches, gouges, and cuts in it. He opined that Respondent's work constituted poor work and gross negligence. His opinion is based on his visual inspection without any tests whatsoever. Errors in Respondent's work which he noted included mopping the tar the wrong way, improper water lapping, and use of some rag felts and some fiberglass felts as opposed to the use of fiberglass as required by the Jessells' contract with Respondent. (However, rag felts and fiberglass felts both meet Code requirements.) Scanlon felt there was a possibility the roof would slide if tiles were added atop Respondent's work but declined to say this was a probability. In order to give a roof warranty, Scanlon felt he had to tear off Respondent's work and "reroof." Whatever he may have found when he tore the roof off later was not explored. Robert D. Hilson, a licensed and certified roofing contractor was also qualified as an expert witness. He also did not inspect the Jessell work until January 1986. He stated the number of patches over the base layer was excessive and unusual and the consistency of the tar was far too "runny," thin, and "gooey." As opposed to this thin consistency being clearly connected to the kettle fire and base coat mopping, Hilson indicated the consistency of tar he was objecting to was a last attempt at overpatching the base layer. He also testified that the roof patches had been lapped the wrong way and occasionally had been mopped inadequately or the wrong way, and he assumed the base layer was also lapped the wrong way, but he never "eyeballed" the base layer to verify this. He found water present at that time. He indicated 6 months exposure would have caused insignificant deterioration. Contrariwise, Sheldon Israel, also accepted as an expert, opined that possibly 6 months could have caused the deterioration Scanlon, Hilson and Jessell all described as existing in January 1986. The contract between the Jessells and Respondent is ambiguous. One portion provides: "5. Install Spanish Style, cement tile roof over 90 lb. roof surface." Another paragraph provides: "8. Owners to select specific colors of Gory Spanish S by 6/12/87 at 12:00 p.m." Printed instructions (specifications) for installation of Gory roofing tile require water laps on 90 pound felt. The Southern Building Code requires prepared roof coverings to be applied in accordance with manufacturers' printed instructions for the products used. Respondent used 90 lbs. rag felts and some fiberglass felts. Both meet Code. Respondent admits he also installed a waterproof membrane or tile underlayerment that was manufactured especially to go underneath Genstar cement tile. This waterproof membrane can only be exposed to the elements without covering for 6-8 months before it is too damaged for use. Respondent planned to install Gory tile on top of the membrane but according to the best expert testimony Gory tile cannot competently be installed over such a waterproof membrane and its ability to be installed over fiberglass felts is questionable. The dispute between Jessell and the Respondent was resolved and Mr. and Mrs. Jessell executed and tendered a full release dated March 20, 1986, for all work performed on their house by Respondent and Great Southern Industries, Inc.
Recommendation Upon the foregoing findings of fact and conclusions of law it is recommended that the Construction Industry Licensing Board enter a final order finding Respondent guilty of violations of Sections 489.129(1)(g), 489.129(1)(j) and 489.119, Florida Statutes, assessing a penalty of $1000 administrative fine therefor, and dismissing the charge of fraud, deceit, gross negligence, incompetency, or misconduct brought under Section 489.129(1)(m), Florida Statutes. DONE AND ORDERED this 2nd of July 1987, in Tallahassee, Florida. ELLA JANE P. DAVIS Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 2nd day of July 1987. APPENDIX TO RECOMMENDED ORDER CASE NO. 86-2552 The following constitute rulings pursuant to Section 120.59(2), Florida Statutes, upon the parties respective proposed findings of fact (FOF). Petitioner's Proposed FOF. 1-2. Covered in FOF 1. Covered in FOF 1 and 4. Accepted but subordinate and unnecessary. Sheldon Israel was accepted as an expert witness upon other qualifications of record. Accepted but alone is not dispositive of any issue at bar. Rejected as out of context and as not constituting an ultimate material fact. The topic as a whole is covered in FOF 9-11 and the conclusions of law so as to conform to the credible record as a whole. Accepted but not dispositive of any issue at bar. Topic covered in FOF 5 and 10. Accepted but not dispositive of any issue at bar. Contrary to the parties' belief, lack of supervision was not alleged with specificity in the administrative complaint. I accept Respondent's testimony that the employee assigned to the kettle, improperly oxygenated its contents but had not abandoned it. See FOF 5 and 10. Rejected as covered in FOF 11 which conforms with the evidence of record. Rejected as covered in FOF 9 which conforms to the evidence of record. Respondents Proposed FOF. Covered in "Issues." Covered in FOF 1. Covered in FOF 2. Covered in FOF 4. Covered in FOF 12. Covered in FOF 3. Rejected as covered in FOF 11, which conforms with the evidence of record. Rejected as a conclusion of law. Accepted as modified in FOF 6-7 to conform to the evidence of record. COPIES FURNISHED: G. Vincent Soto, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 Gary I. Blake, Esquire 3111 University Drive Coral Springs, Florida 33065 Fred Seely, Executive Director Construction Industry Licensing Board Post Office Box 2 Jacksonville, Florida 32201 Van Poole, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 Joseph A. Sole, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750
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
The Issue The issue for determination is whether Respondent, licensed as a registered roofing contractor, certified roofing contractor, and certified building contractor, committed various violations of Chapter 489, Florida Statutes, sufficient to justify the imposition of disciplinary sanctions against his licenses.
Findings Of Fact Respondent is Joseph H. Rayl, holder, at all times pertinent to these proceedings, of registered roofing contractor license no. RC 0034055; certified roofing contractor license no. CC C035625; and certified building contractor license no. CB C033206. Petitioner previously disciplined Respondent's license RC 0034055 through the imposition of a $250 fine by order dated July 11, 1985; and Respondent's license CB C033206 by suspension of license for six months and imposition of a fine of $2,500. Petitioner also found probable cause for three cases in 1987 that were closed with letters of guidance to Respondent. Petitioner is the Department of Professional Regulation, Construction Industry Licensing Board, the state agency charged with the regulation of contractors in the State of Florida. Respondent was the qualifying agent for Unique Construction, Inc., (Unique) at all times pertinent to these proceedings. Further, Respondent has been the qualifying agent for Superior Roofing & Construction Inc., (Superior) since February, 1988. On June 19, 1984, Mary Lois Brining, owner of a day care center for children known as Town and Country Schools of Bradenton in Manatee County, Florida, entered into a contract with Respondent to reroof the day care center. Respondent's personnel arrived at the school and removed the roof. Heavy rainfall then caused extensive damage to the interior of the facility and Brining complained to Unique. A representative of the company assured her that the situation would be resolved. Brining later paid Unique $623 to paint the school's interior, in addition to the cost of the roof replacement. While Respondent was never present during the construction, his workmen finished the roofing project on June 26, 1984. When leaks to the roof developed after completion of the job, Brining advised Unique of the leakage on numerous occasions. No action was taken by Respondent or Unique in response to Brining's telephone calls about the roof's leakage. Water leakage also damaged the carpet in Brining's facility, which she replaced at a cost of $2,000. In 1988, Brining finally hired another roofing company to correct the roof leakage. Helen M. Hayes, a resident of Gulfport, Florida, contracted with Unique to reroof the flat portion of the roof to her home on April 12, 1984, for a sum of $2,890. The job was finished on April 15, 1984. Two days later, the roof leaked. Hayes advised Unique and a representative came to the house and attempted to stop the leaks. After every rain, the roof leaked and Hayes would advise Unique. She never saw or spoke with Respondent. Finally, after 22 contacts with the company over a period of two and a half years, Hayes contacted local government building authorities. The building inspector for the City of Gulfport inspected the roof and told the company to replace it. Unique's workmen removed the roof in July, 1986, and left the house uncovered. That same day 10 inches of rain fell in the area of the residence, resulting in extensive damage to the home's interior and clothing which Hayes had stored in the home. Hayes called the police. The police called the building inspector who, in turn, called the roofing company. On July 28, 1986, Unique completed replacing the roof on Hayes' house. That new roof still leaks, the floor to the house is cracked from the leakage, the carpet has been saturated with water, plaster from the ceiling is falling to the floor, and there are water stains on the ceiling and walls throughout the residence. The proof further establishes that the City of Gulfport, located in Pinellas County, Florida, retained a private contractor to conduct an inspection of Hayes' roofing job in July of 1986. That inspection established that the roof should be replaced with a roof complying with building code requirements. Notably, while Unique obtained permits for the job, no final inspection of the project was ever obtained by Respondent's company in accordance with the Southern Building Code adopted as an ordinance by the City of Gulfport. James Oliver Prince is a resident of Lake Hthchineha, a settlement located in Polk County, Florida. He has never met Respondent. Prince entered into a contract with Unique in September of 1985. The reroofing job was completed on or about September 26, 1985. Leaks developed with the onset of the first rain after the completion of the job. Prince notified Unique and a representative came out to the residence to attempt to repair the roof and stop the leaks. This procedure continued on numerous occasions until November of 1987 when Prince attempted to contact Unique regarding the roof's leakage only to be informed that the telephone had been disconnected. Prince tried to locate Unique at the various offices listed on his contract, but received no answer. Eventually, due to the seriousness of the leaks and his inability to contact Unique, Prince hired a carpenter and replaced the roof at a cost of approximately $6,000. As established by testimony of Charles Fant, fire chief and building official for the City of Treasure Island, Florida, Unique obtained a construction permit for a reroofing job for the home of Vincent Ferraro located at 62 North Dolphin Drive in that city. The city has adopted the Southern Building Code as a city ordinance. However, the company never obtained the required final inspection for that job as required by the building code. On August 13, 1986, Carl and Ludie Buice of Bellview, Florida entered into a contract with Unique for a reroofing job on their home. Carl Buice passed away in November of 1986 Later, their son assisted Ms. Buice when leaks developed in the roof by attempting to contact the roofing company. The son, Alfred Buice, was unable to contact Unique. He then contacted the local offices of the Better Business Bureau; thereafter a representative of Superior, Respondent's successor company to Unique, came to the Buice residence on or about May 25, 1988, and gave Alfred Buice a check for $200 in connection with money previously spent by Buice to repair leaks to the roof. Even after repairs, the roof continued to leak to the point that it began to cave in around the roof's edges. Eventually, Alfred Buice had his mother's residence reroofed by another contractor on March 21, 1989, for $5,800. Testimony of Petitioner's expert witness establishes that Respondent was grossly negligent in meeting his qualifying agent responsibilities to supervise financial activities and construction practices of Unique. Further, Respondent's subordinates, who actually carried out roofing activities, performed those tasks incompetently. Respondent failed to comply with existing construction industry practices to inspect jobs where successive complaints were lodged by customers.
Recommendation Based on the foregoing, it is hereby RECOMMENDED that a Final Order be entered revoking Respondent's licenses as a registered roofing contractor, certified roofing contractor, and certified building contractor. DONE AND ENTERED this 7th day of July, 1989, in Tallahassee, Leon County. Florida. DON W. DAVIS 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 7th day of July, 1989. APPENDIX The following constitutes my specific rulings, in accordance with Section 120.59, Florida Statutes, on findings of fact submitted by the parties. Petitioner's Proposed Findings. 1.-42. Addressed. Respondent's Proposed Findings. None submitted. COPIES FURNISHED: Elizabeth R. Alsobrook, Esquire Department of Professional Regulation The Northwood Centre, Suite 60 1940 N. Monroe St. Tallahassee, Florida 32399-0750 William E. Whitlock, III, Esquire 320 West Park Avenue Tallahassee, Florida 32301 Fred Seely, Executive Director Construction Industry Licensing Board Department of Professional Regulation Post Office Box 2 Jacksonville, Florida 32201 Kenneth E. Easley, Esquire Department of Professional Regulation The Northwood Centre, Suite 60 1940 N. Monroe St. Tallahassee, Florida 32399-0750
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 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.
