The Issue Whether Respondent should be disciplined for failure to comply with provisions of Florida law?
Findings Of Fact Respondent, George F. Garrard, is licensed as a registered roofing contractor holding State of Florida license number RC 0045805. On May 14, 1986, Respondent entered into a contract with Ronald Skinner to reroof a house located at 2226 Eudine Drive, in Jacksonville, Florida. The contract provided that Respondent would: "Tear off the entire roof to sheeting. Haul off all debris. Install 5 ply-build-up roof. New metal edging." In exchange for the work, the contract called for Respondent to receive $1100.00, $600.00 to be paid in advance for materials and $500.00 to be paid upon completion of the job. 2. Mr. Skinner paid Respondent the $600.00 advance for materials and work on the roof began the following day. While the work on the roof was in progress, Mr. Skinner conducted periodic inspections and noticed that the felt had buckled up. Mr. Skinner asked Respondent how he was going to fix the felt and Respondent said that he could fix the felt by cutting out the buckled parts and patching the felt. Mr. Skinner responded that he had a patched roof before and did not want another; he wanted a new roof. Respondent promised he would fix the problem. Prior to the work being completed, Respondent made a telephone call to Mr. Skinner and asked for payment of the remaining balance on the contract in order to purchase the materials needed to finish the job. Mr. Skinner agreed to meet John T. Garrard (Respondent's son) at the house and pay the balance. Respondent authorized Mr. Skinner to pay John T. Garrard. When Mr. Skinner arrived at the house, John T. Garrard and another person were unloading rocks from a pick-up truck and placing the rocks in a pile on the carport roof. Mr. Skinner paid John T. Garrard $500.00 and John T. Garrard wrote "Paid in Full" on the face of the contract and signed his name. A few minutes after Mr. Skinner left the house, John T. Garrard and the other person also left the house. Two or three days later, Mr. Skinner returned to the house. He noticed that no further work had been done. The rocks which had been unloaded from the pickup truck were still in a pile on top of the carport. Mr. Skinner was afraid the weight of the rocks would damage the carport so he spread the rocks on the roof. There were not enough rocks to cover the whole roof. Also, the rocks were loose because no tar had been spread on the roof to hold the rocks in place. Mr. Skinner contacted Respondent or someone in his household several times, and Respondent assured him he would finish the job. No further work was done on the roof by Respondent. Mr. Skinner last contacted Respondent by letter dated January 26, 1987, wherein he asked that Respondent finish the job since he had been paid in full. On the date of the hearing, the roofing job had not been completed. The rocks were still insufficient to cover the entire roof, no tar had been spread to hold the rocks in place, and the felt was still buckled in various places. Respondent never obtained a building permit for the reroofing job.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner enter a final order finding Respondent guilty of violating Sections 489.129(1)(d) and (k), Florida Statutes, and imposing a fine of $2,000 on Respondent. DONE and ENTERED this 30th day of March, 1988, in Tallahassee, Florida. JOSE A. DIEZ-ARGUELLES 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 30th day of March, 1988. COPIES FURNISHED: David L. Swanson, Esquire Department of Professional Regulation 120 North Monroe Street Tallahassee, Florida 32399-0750 George F. Garrard 4622 Tabernacle Place, East Jacksonville, Florida 32207 Fred Seely Executive Director Construction Industry Licensing Board Post Office Box 2 Jacksonville, Florida 32201 William O'Neil, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750
The Issue Whether the Respondent aided and abetted an unlicensed contractor by obtaining a permit for a roofing job performed by the unlicensed contractor; Whether the work on the job failed to fully comply with the local building codes; Whether the Respondent gave a guarantee on the job and thereafter failed to reasonably honor the guarantee; and Whether Respondent failed to properly supervise the job site activity.
Findings Of Fact At all times material to this action, Respondent was licensed by the Construction Industry Licensing Board as a registered roofing contractor, holding License No. RC0030450. Carol Kilgore is the daughter of Beula Relihan, who owns a rental home located at 207 East Selma in Tampa, Florida. Mrs. Relihan is 86 years old, and for several years Mrs. Kilgore has been managing the property. In early 1987, Mrs. Kilgore was involved in obtaining estimates to replace the roof at the rental home. After obtaining estimates from contractors listed in the yellow pages, which Mrs. Kilgore felt to be high, Mrs. Kilgore responded to an advertisement for roofing work located in the Money Saver. She called the number listed in the advertiser, talked to Leroy Rison, and asked him to come to the house and give her an estimate. On or about February 26, 1987, Leroy Rison and his nephew, Gary Terrell, visited Mrs. Kilgore after looking at the job site, and wrote out an estimate for replacing the roof of $1,650.00. Mr. Terrell wrote the proposal which reflected the work to be done, the price, and the proposed beginning and finishing date. However, before any contract was entered into, Mrs. Kilgore discovered that neither Rison or Terrell were licensed contractors. She explained that she wanted only a licensed contractor who could pull the permit to perform the work. Although Mr. Terrell and Mr. Rison are willing to work for a homeowner if the homeowner will obtain the permit, Mrs. Kilgore insisted that she wanted a licensed contractor. Therefore, Mr. Rison recommended the Respondent, and later called the Respondent to advise him of the job. The next day, February 27, 1987, Respondent met Mrs. Kilgore and wrote a contract proposal on a form with a printed heading "MacDill Roofing", to which in handwriting was added "& Services." Respondent operates under the name of, and is the qualifying agent for, MacDill Services. The contract prepared by the Respondent merely copied the proposal submitted by Terrell and Rison, including the same price and the same misspelled words. The contract was accepted and signed by Ms. Kilgore's mother. Mrs. Kilgore paid Respondent $650.00, with the balance to be paid upon successful completion of the contract. Work was scheduled to begin the following day, Saturday, February 28, 1987 and be completed by Monday, March 2, 1987. The following Saturday work began. Respondent obtained the permit for the job, and apparently purchased the materials and had them delivered. Leroy Rison worked on the job and hired the laborers. Gary Terrell also worked on the job. One of the men Rison hired, Earl, worked for a roofing company during the week but did not have a license. Mr. Rison could not remember the name of any of the other men who worked on the job. Leroy Rison was not an employee of MacDill Roofing or MacDill Services, but he had worked for Respondent on other occasions. Although Respondent contends that he went by the job site on three or four occasions, staying at the job site between 1 and 2 hours on each occasion, his testimony is not credible. Charles Doty, who was the tenant in the rental home, had received a leg injury which forced him to stay home during this entire period of time. The only time Mr. Doty was gone was for an hour and half on Saturday to attend a therapy session. Mr. Doty never saw Respondent on the job site, although he had heard Respondent's name mentioned by Mr. Rison. Mrs. Kilgore also visited the job site on several occasions and she never saw the Respondent at the job site. Respondent simply did not supervise the job site activities. On March 3, 1987, the roof was scheduled for final inspection by the building department. Mrs. Kilgore went to the house to wait for the building inspector. After several hours, she left to get a soft drink. She was gone only five minutes, but when she returned, she discovered that the building inspector had come and gone, and a "green tag", indicating that the house had passed inspection, had been left on the porch. Mrs. Kilgore was very upset because she felt that the roofing work had not been done properly. She went to the building supervisor at City Hall and asked him if he could send the inspector back to the house so that she could point out the problems. The building supervisor agreed to send the inspector back to the house. The building department inspector was Terry Scott. On March 3, 1987, Mr. Scott had approximately 20 or 25 inspections to do. When he first went to the house he just looked around quickly and left a green tag. He admitted that a thorough inspection was only done if a homeowner complained. When Mr. Scott returned to the house on March 3, 1987, he still did not do a thorough inspection. However, he did issue a "red tag" which listed certain deficiencies that would have to be corrected before the roof could pass inspection. The red tag required that the contractor "replace bad wood where needed and install drip-edge where needed." Normally, when a red tag is issued, the contractor corrects the deficiency and calls for another inspection. That did not occur in this case. On April 9, 1987, Inspector Scott met Mr. Park at the job-site to discuss problems with the roof. On that day, a more thorough inspection was performed. Another red tag was issued and the following deficiencies were noted: "Bad wood not replaced--Wall flashing not properly installed. Flashing around chimney not proper--Felt under drip-edge." Respondent did not correct these deficiencies and never called for another inspection. The permit expired without the roof being approved by final inspection. Although not all the deficiencies noted in the inspection constitute code violations, the Tampa Building Code does require that rotten wood be replaced and the contract specified that the rotten decking would be replaced. Nevertheless, after Respondent completed the job, rotten wood remained in place. The replacement of the rotten wood was noted in both red tags. Respondent never attempted to correct this deficiency. On the day the property initially passed inspection, March 3, 1987, Respondent called Mrs. Kilgore and requested the remaining $1,000 owed on the contract price. Mrs. Kilgore refused to pay the Respondent since she was dissatisfied with the work and the first red tag had issued. At some point, apparently after the red tag issued in April, Respondent decided that he was not going to get any more money from Mrs. Kilgore. Other than asking for the money on March 3, 1987, Respondent has not attempted to collect the remainder of the money from Ms. Kilgore; however, he has also not attempted to correct the code violations and other deficiencies. Since Respondent did not collect the remainder of the money owed, Respondent did not pay Leroy Rison, and Mr. Rison did not pay the laborers who performed the work. As the contractor on this job, Respondent had full responsibility for ensuring that the work was done properly and that the roof passed final inspection. Respondent failed to supervise the work on the job, and the re- roofing was not done in a workmanlike manner. In essence, Respondent abdicated his responsibilities as the contractor on the job, and allowed the work to be performed by unsupervised unlicensed persons. The roofing material used was supposed to be fiberglass shingle guaranteed for 20 years. There was no evidence presented that something other than the material specified was used or that the shingles were not installed in accordance with the manufacturer's specifications. The roof did not leak after the work was completed. No evidence relating to a guarantee, other than the guarantee related to the shingles, was presented. Respondent has previously been disciplined by the Construction Industry Licensing Board. On September 10, 1986, a 61 paragraph Administrative Complaint was filed against Respondent which alleged, among other things, willful violation of local law; failure to qualify a firm through which he was operating; gross negligence, incompetence, misconduct, fraud, or deceit in the practice of contracting; failure to discharge supervisory duties as a qualifying agent; and aiding and abetting an unlicensed person to evade the provisions of Chapter 489. On March 26, 1987, Respondent signed a stipulated settlement with the Department of Professional Regulation admitting to all the allegations set forth in the Administrative Complaint. The stipulated disposition was that Respondent's licensure would be suspended for two years and indefinitely thereafter until an administrative fine in the amount of $3,000 was paid. The stipulation was adopted by Final Order of the Construction Industry Licensing Board rendered June 9, 1987.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered revocation of Respondent's license as a registered roofing contractor. DONE and ORDERED this 25th day of October, 1988, in Tallahassee, Florida. DIANE A. GRUBBS 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 25th day of October, 1988. APPENDIX The following constitutes rulings on the Petitioner's Proposed Findings of Fact. 1.-4. Accepted, generally except the date of February 26, 1987 appears to be the appropriate date, rather than February 7, 1987, in that the estimate from Larry Rison was obtained one day before the contract was entered into with Respondent. Accepted, generally. Accepted as true, but unnecessary and irrelevant, since Rison and Terrell did not enter into a contract for the job. 7.-14. Accepted. 15. Accepted as true; however, the last two sentences were considered unnecessary. 16.-19. Accepted, generally. First sentence accepted, sentences two and three rejected as irrelevant to the issues in this case. Rejected as redundant and for the reasons set forth under Proposed Finding of Fact No. 6. First sentence rejected as not supported by the evidence, second sentence accepted, except as to Respondent's intent. Third and fourth sentences accepted in general. COPIES FURNISHED: Belinda H. Miller, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 Francis A. Park 6109 South MacDill Avenue Tampa, Florida 33611 Lawrence A. Gonzalez Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 Bruce D. Lamb, Esquire General Counsel Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 Fred Seely Executive Director Construction Industry Licensing Board Department of Professional Regulation Post Office Box 2 Jacksonville, Florida 32201
Recommendation Based upon the foregoing findings of fact and conclusions of law, it is recommended that the Construction Industry Licensing Board issue a written reprimand to respondent Elias Davis for failure to pull a permit on a roofing job. RECOMMENDED this 5th day of April, 1984, in Tallahassee, Florida. J. LAWRENCE JOHNSTON Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 5th day of April, 1984.
The Issue The issues in this case are whether Respondent, Douglas J. Ringold, Jr., d/b/a Alpha Restoration, Inc., committed the offenses alleged in a four-count Administrative Complaint filed with Petitioner, the Department of Business and Professional Regulation, on January 4, 2008, and, if so, what penalty should be imposed.
Findings Of Fact Petitioner, the Department of Business and Professional Regulation (hereinafter referred to as the "Department"), is the agency of the State of Florida charged with the responsibility for, among other things, the licensure of individuals who wish to engage in contracting in the State of Florida; and the investigation and prosecution of complaints against individuals who have been so licensed. See Chs. 455 and 489, Fla. Stat. Respondent, Douglas J. Ringold, Jr., d/b/a Alpha Restoration, Inc., is and has been at all times material hereto a certified roofing contractor in Florida, having been issued license number CCC 1326506 by the Construction Industry Licensing Board (hereinafter referred to as the “Board”). At all times material hereto, the status of his license has been "Current, Active." At all times material, Mr. Ringold was certified as doing business as Alpha Restoration, Inc. (hereinafter referred to as "Alpha"), a Florida corporation. At the times material, Mr. Ringold was the qualifying agent for Alpha, which possesses a certificate of authority as a contractor qualified business in Florida, license number QB 40272. Alpha’s license was issued May 5, 2005, and it is scheduled to expire August 31, 2010. On or about November 7, 2005, Alpha, through its employee Harry Youdell, met with Jose Fons at Mr. Fons’ residence located at 9922 Southwest 2nd Terrace, Miami, Florida (hereinafter referred to as the “Residence”), to inspect the roof on the Residence. Mr. Fons had not been successful in obtaining approval from his insurance company for replacement of the hurricane-damaged roof. Alpha represented that it would assist Mr. Fons in negotiating with his insurance company to obtain approval for replacement of the roof, which Mr. Fons authorized, in writing, Alpha to do. On January 15, 2006, Mr. Fons and Alpha entered into a written agreement (hereinafter referred to as the “Contract”) whereby Alpha agreed to install a metal tile roof on the Residence in exchange for payment of $27,187.02, with possible increases for “additional payments & supplements,” from Mr. Fons. The Contract provided for a 50 percent material deposit to be paid to Alpha. By check dated January 15, 2006, Mr. Fons paid the 50 percent deposit totaling $13,600.00 to Alpha. At the time the Contract was entered into, Alpha told Mr. Fons that a permit would be applied for the following week and that construction would commence in February. Although there was unsubstantiated hearsay that Mr. Fons was informed that the metal tile roof Mr. Fons was purchasing had not been approved for use in Miami-Dade County, Mr. Fons credibly denied being so informed. The credible, non-hearsay evidence supports a finding that Mr. Fons was not immediately informed that metal tile roofs were not authorized in Miami-Dade County. Despite not providing written or verbal authorization to Alpha to wait more than 30 days after execution of the Contract to apply for the permit for the roof work, no permit was applied for by Alpha for the Residence roof work within 30 days after January 15, 2006. Nor did Alpha commence work of any kind on the project in January or February 2006. During the first week of March, having heard nothing more from Alpha, Mr. Fons called Alpha and inquired about the status of the project. Mr. Fons was told by Mr. Youdell that the metal tile roof had not been approved by the Miami-Dade Building Department (hereinafter referred to as the “Building Department”). Mr. Youdell told Mr. Fons it would take another 30 days to obtain a permit. As of April 2006, Alpha had not commenced work or contacted Mr. Fons. Therefore, Mr. Fons called and spoke to Mr. Youdell about the status of the project. Mr. Fons was again told that the metal tile roof had not been approved and that testing of the roof would take another 30 days. In fact, Alpha had not made application for any permit for the Residence roof job through April 2006. On May 11, 2006, approximately 114 days after receiving Mr. Fons’ deposit, Alpha finally submitted an application for the permit with the Building Department. The application was designated C2006169450 by the Building Department. In May 2006, Mr. Fons again contacted Alpha to inquire about the project, since no work had been started and he had not heard from Alpha. For the third time, Alpha told Mr. Fons that the roof had not gained approval from the Building Department and that another 30 days was needed. In June 2006, Mr. Fons again contacted Alpha. Work on his roof had not started and he had not heard from Alpha. Not surprisingly, Mr. Fons was told for the fourth time that the roof had not gained approval and there would be another 30-day delay. Mr. Fons, who was becoming frustrated with the delay, visited the Building Department and inquired about the project. He learned that Alpha had not applied for a permit until May 2006 and was told that the Building Department had “denied” it on May 16, 2006. Mr. Fons was not told by the Building Department that, despite the “denial,” the permit application remained open. By July 2006, Alpha had still not commenced work. Therefore, Mr. Fons contacted Alpha and requested a meeting to discuss alternatives to the metal tile roof. Obviously, Mr. Fons was aware that metal tile roofs were not approved for use in Miami-Dade County since entering into the Contract. While no work had commenced from January 15, 2006, when the written agreement was entered into and the deposit was made, through July 2006, Mr. Fons effectively agreed to wait for Alpha to attempt to gain approval for the metal tile roof from the Building Department. Having obtained Mr. Fons’ approval, Alpha could not have commenced work on the project through July 2006. On July 17, 2006, Alpha, through Mr. Youdell, met with Mr. Fons at the Residence. Because of the delays that had been caused by the failure of Alpha to gain approval of the metal tile roof from the Building Department and with assurances that the contract price would be the same, Mr. Fons agreed to accept, and Alpha agreed to provide, a tile roof. Alpha represented to Mr. Fons that the tile roofing material was in-stock, that a permit would be obtained within a week, and that construction would commence by mid-August 2006. Between July 25, 2006, approximately a week after the July 17, 2006, meeting, and August 7, 2006, Mr. Fons monitored the Building Department’s web-site to see if Alpha had applied for a permit for the tile roof. When there was no indication that the permit had been applied for, Mr. Fons called Alpha on August 8, 2006. Mr. Youdell told him that the permit had been applied for and it had not appeared in the computer system because the Building Department was backlogged. Mr. Youdell told Mr. Fons that Alpha would be at the Residence in ten days to at least clean up debris. As of August 18, 2006, no new permit had been applied for and no one from Alpha had been to the Residence. Consequently, Mr. Fons wrote and delivered a letter by facsimile addressed to Mr. Ringold, stating, in part, the following: After months of dealing with you, this is my formal request for a full refund of $13,600 paid to you January 15, 2006, with my personal check #6408. Said amount was a deposit for the contract for the replacement of the roof at my residence located at 922 SW 2 Terrace, Miami, FL. As you are aware of, Florida Statutes 489.126 demands that you apply for the necessary permits within 30 days after the initial payment (my payment to you on 1-15- 06 $13,600). Please do not call me, from now on all communications will be done in written form. If you fail to refund my deposit within 10 days, please be advised that I will file a complaint . . . . Since we are now in August, and you have not commenced work at my residence, this is my demand letter for a check in full refund of my deposit within 10 days of receipt of this letter. On August 24, 2006, after having received Mr. Fons’ August 18, 2006, letter, Alpha submitted an on-line application for a tile roof for the Residence. The matter was designated W2006262830. This permit application was not approved because Alpha failed to complete the application process. When he did not receive a response to his August 18, 2006, letter, Mr. Fons wrote a second letter to Alpha, which was mailed by certified mail on or about September 4, 2006. In the second letter, Mr. Fons indicated that the ten-day deadline set out in his previous letter had passed without response and he again requested the return of his deposit. On September 3, 2006, the original metal tile roof permit application was rejected by the Building Department. On September 8, 2006, the permit application, having been converted from a metal roof to a tile roof, was approved and issued as permit number 2006126043. On September 6, 2006, after Alpha had applied for and obtained a permit, Mr. Fons finally received a written response from Alpha to his August 18, 2006, letter. In the response, Mr. Ringold suggests the following: “At the signing of your contract you were aware that ‘Metro Steel Tile’ did not have Miami Dade approval and you were willing to wait for such to be approved. This made securing a permit in 30 days impossible and you were completely aware of that at the time.” Mr. Ringold’s understanding of Mr. Fons’ “understanding” has not been substantiated by the evidence presented in this case, and is, therefore, rejected. Mr. Ringold goes on to accurately suggest that Mr. Fons and Alpha had modified the agreement in July, when it was agreed that a tile roof would be placed on the Residence. Mr. Ringold then suggests that any delay in applying for a permit after July was due to the need to ensure that the tiles were delivered, facts Mr. Fons was not previously apprised of. Mr. Ringold ends the letter as follows: We have confirmed that your tile is acquired and have applied for your permit. Had we been informed that you were so concerned that your permit be pulled immediately we would have been more than happy to do so. We never worry about getting the permit in Dade County as they are very effective in issuing permits in a timely manner [a fact which Mr. Youdell was apparently not aware of, given his representation to Mr. Fons that the Building Department was back logged]. I do not understand the reason for the letter? We sincerely have always had your best interest at heart, and want to proceed with the install. I am confident that you will be pleased with the finished product. Please if you would contact me directly at . . . to discuss this matter. On September 11, 2006, Mr. Fons found a copy of permit number 2006126043, issued on September 8, 2006, on the door of the Residence. Other than a letter from Mr. Fons to Alpha dated October 23, 2006, requesting a list of subcontractors and suppliers used by Alpha, there was no further correspondence between Alpha and Mr. Fons. Nor did Alpha make any effort to fulfill its obligations under the Contract. Ultimately, permit number 20066126043, issued September 8, 2006, was cancelled based upon a February 7, 2007, request from Alpha. No work took place on the project for more than 90 days after the permit was issued. Based upon the foregoing, more than six months passed after the Contract was entered into without any work being performed by Alpha: January 15, 2006, to July 17, 2006. While the evidence failed to prove that Mr. Fons was fully informed at the time the Contract was entered into that the metal tile roofing he had selected was not approved for use in Miami-Dade County and, therefore, securing a permit would take some time to acquire, he was eventually informed of these facts. Ultimately, Mr. Fons acquiesced to the delay in commencing work between January 15, 2006, and July 17, 2006, when Mr. Fons and Alpha agreed to a modification of the Contract; in particular, to replace the roof on the Residence with a tile roof. There was, therefore, no “abandonment” of the project between January and July 2006. Between July 17, 2006, and February 2007, a period of eight months, no work was performed on the project. In fact, after early September 2006 there was no meaningful communication between Mr. Fons and Alpha. Viewing the evidence most favorably to Alpha, Alpha had informed Mr. Fons in a letter he received on September 6, 2006, that the tiles were available (the evidence failed to substantiate this claim; if the tiles had been “available” they would have been delivered directly to the Residence), the permit had been obtained, Alpha indicated its willingness to fulfill its obligation, and Alpha attempted to place the ball in Mr. Fons’ court by asking that he call to discuss the matter, and Mr. Fons had demanded a return of his deposit. Viewing the evidence most favorably to Mr. Fons, he had been waiting for eight months to have his roof repaired; he had on a monthly basis had to initiate contact with Alpha and every time he did, was told “it will be another 30 days”; Alpha had taken until May 2006 to make its first application for a permit, despite the fact that Alpha had represented to Mr. Fons that the permit would be obtained in January and that work would commence in February, the monthly representations that the permit had been applied for but was being held up by the Building Department. After renegotiating his contract, Mr. Fons was again told that the permit would be pulled within a week and that work would commence within a month. Despite these representations, no permit was applied for until after his August 18, 2006, letter was received and that permit was never approved. When Mr. Fons did finally complain and request the return of his deposit, although it had only been a month since renegotiating the type of roof to be placed on the Residence, Alpha did not respond until September 6, 2006, and only responded after finally obtaining a permit. Given these circumstances, the suggestion of Alpha that “[w]e sincerely have always had your best interest at heart, and want to proceed with the install” must have seemed disingenuous to Mr. Fons. Weighing the foregoing facts, it is ultimately found that simply “offering” to proceed, despite Mr. Fons’ demand for the return of his deposit, was simply too little, too late. Given the total eight-month delay in the project and all the misinformation Mr. Fons had been given by Alpha, and especially in light of the fact that Alpha had $13,600.00 of Mr. Fons’ money for which it had performed no work whatsoever, Alpha should have done more to attempt to fulfill the contract. Failing to do more under these circumstances constitutes an abandonment of the project to the financial detriment of Mr. Fons. On February 21, 2007, Mr. Fons contracted with another company to install a tile roof on the Residence. Work commenced February 23, 2007, and was completed March 5, 2007. Mr. Fons has suffered a loss of $13,600.00 as result of Alpha’s failure to fulfill its obligations under the Contract. The total costs of investigation incurred by the Department in this case, excluding costs associated with any attorney time, was $342.42.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered finding that Douglas J. Ringold, Jr., d/b/a Alpha Restoration, Inc., violated the provisions of Section 489.129(1)(g)2., (i), (j), and (m), Florida Statutes, as alleged in Counts I, II, III, and IV of the Administrative Complaint; imposing fines of $1,500.00 for Count I, $500.00 for Count II, and $2,500.00 for Count III; requiring that Mr. Ringold make restitution to Mr. Fons in the amount of $13,600.00; requiring that Mr. Ringold pay the costs incurred by the Department in investigating and prosecuting this matter; and placing Mr. Ringold’s license on probation for a period of one year, conditioned upon his payment of the fines, restitution to Mr. Fons, payment of the costs incurred by the Department, and any other conditions determined to be necessary by the Board. DONE AND ENTERED this 10th day of February, 2009, in Tallahassee, Leon County, Florida. LARRY J. SARTIN 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 10th day of February, 2009. COPIES FURNISHED: Brian P. Coats, Esquire Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street, Suite 42 Tallahassee, Florida 32399-2022 Paul Buschmann, Esquire Hinshaw & Culbertson, LLP One East Broward Boulevard, Suite 1010 Fort Lauderdale, Florida 33301 W. Harrell, Executive Director Construction Industry Licensing Board Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792 Ned Luczynski, General Counsel Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792
Findings Of Fact Respondent has been a registered roofing contractor at all times material hereto. His license number is RC-0035594. On or about April 26, 1985 Respondent, doing business as Pinellas Roofing Service, contracted with Bausch and Lomb to reroof their plant in Manatee County, at a contract price of $31,150. Respondent admits that at no time material hereto was he licensed to engage in contracting in Manatee County. Pinellas Roofing thereafter began, and partially performed, this job for which it was paid a total of $28,035. Petitioner alleges, and Respondent denies, that Respondent diverted funds received from this job for other purposes, and was thereafter unable to fulfill the terms of the contract with Bausch and Lomb. Petitioner did not present competent substantial evidence in support of this charge. Respondent never completed this job and took no steps to inform Bausch and Lomb that he would not complete the contract or make other arrangements for its completion. He left several thousand dollars worth of material on the roof, exposed, when he walked off this job, and this resulted in these materials being substantially destroyed. During the job, he did not take precautions to assure that the roof did not leak during heavy rainstorms. In fact, on at least three occasions, leaks caused damage to the interior of the plant and Respondent could not be reached. Therefore, Bausch and Lomb had to have another roofing contractor make emergency repairs on June 25, July 15 and September 3, 1985, at a total additional cost of $4,150. Since Respondent did not complete the contract, and left the roof unfinished, Bausch and Lomb contracted on September 17, 1985 with Bernard J. Lozon, Inc., to complete the job, and make certain additional repairs, at a cost of $24,000. In the opinion of Bernard J. Lozon, who was accepted as an expert in roofing contracting, the actual work that was done by Pinellas Roofing was satisfactory. However, Respondent's actions in walking off the job and leaving the roof unattended without completing the job is an unacceptable practice in roofing contracting, and constitutes incompetence and misconduct. Respondent failed to properly supervise this job. He relied upon his son to hire the necessary crews, pay them, handle financial aspects of the job, and assure its completion. His testimony indicates he fails to understand his own responsibility for supervising and completing the work for which he contracted, and which was performed under his license. At no time material hereto did Respondent qualify Pinellas Roofing Service with Petitioner. Respondent failed to apply for and obtain a Manatee County building permit for the roofing job in question, and also failed to request the county building department to perform inspections of the work performed. The Board of County Commissioners of Manatee County has adopted and follows the 1979 edition of the Standard for Installation of Roof Coverings, Southern Building Code, as amended in 1981. This Code requires all contractors performing work in Manatee County to be registered in Manatee County, and to obtain permits for all roof replacements and repairs in excess of $200, as well as obtain inspections of all such work to insure compliance with the Code. Respondent failed to comply with these requirements of the local building code. When Respondent submitted his proposal on April 16, 1985 for the Bausch and Lomb job, he specifically acknowledged, in writing, that "all work (is) to be done according to owner specifications sheet." (Emphasis supplied). At hearing, Respondent contended that when he submitted his proposal he never saw the project specification sheet which was thereafter attached to his contract with Bausch and Lomb and made a part thereof. Rather, he testified that his proposal referred to certain specifications that appeared on project drawings which he reviewed prior to submitting his proposal. After considering the demeanor of the witnesses and all of the evidence presented, and particularly the fact that Respondent referred to the "specifications sheet" and not "drawings" in his proposal, it is specifically found that Respondent had knowledge of, and did in fact submit his proposal based upon the "specifications sheet" which ultimately became a part of his contract. As such, he was bound thereby in the performance of work under this contract. In pertinent part, the "specifications sheet" requires that the contractor obtain all necessary permits from Manatee County, that notice be given to the owner in advance of work that will produce excessive amounts of dust or tar fumes so proper precautions could be taken, that roofing materials be stored in a manner that protects them from damage or adverse weather conditions during construction, and that the contractor provide a two year written guarantee at the conclusion of the job. Respondent failed to comply with these requirements of the specifications.
Recommendation Based upon the foregoing, it is recommended that Petitioner enter a Final Order suspending Respondent's registration for a period of ninety (90) days and imposing an administrative fine in the amount of $1,500. DONE AND ENTERED this 22nd day of April, 1987 in Tallahassee, Florida. DONALD D. CONN 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 22nd day of April, 1987. APPENDIX TO RECOMMENDED ORDER, CASE NO. 86-3698 Rulings on Petitioner's Proposed Findings of Fact: Adopted in Finding of Fact 1. Adopted in Finding of Fact 8. 3,4 Adopted in Finding of Fact 2. 5,6 Adopted in Finding of Fact 3, but otherwise rejected as irrelevant and unnecessary. 7,8 Adopted in Finding of Fact 9. Adopted in Finding of Fact 6. Adopted in Findings of Fact 5, 6. Rulings on Respondent's Proposed Findings of Fact: Adopted in part in Findings of Fact 3, 5. Rejected as not based upon competent substantial evidence. Adopted in part in Finding of Fact 3. Adopted in part in Findings of Fact 2, 3. 5-7 Addressed in Findings of Fact 2, 3 and 5. 8,9 Rejected as irrelevant and unnecessary. 10. Adopted in part in Finding of Fact 5. 11,12 Adopted in part in Finding of Fact 6. Rejected as not based upon competent substantial evidence. Adopted in Findings of Fact 5, 6. Adopted in Finding of Fact 6. COPIES FURNISHED: W. Douglas Beason, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Fl 32399-0750 Michael Schlesinger, Esquire 655 Ulmerton Road Building 11-A Large, Fl 33541 Fred Seely 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, Esquire General Counsel Department of Professional Regulation 130 North Monroe Street Tallahassee, Fl 32399-0750
Findings Of Fact Respondent, Harry Clinton Brackin, is a licensed registered roofing contractor holding license number RC0045880. Respondent was licensed at all times material to this action. Respondent is the owner and licensee for Brackin Roofing Company. Sometime around February 20, 1987, Respondent entered into a contract with Mrs. Arebelle S. Hughes, an elderly woman, to re-roof her house and remodel the front porch of her home located in Vernon, Florida. In addition to the work performed pursuant to the contract, there were verbal construction agreements between Mrs. Hughes and Respondent for the remodeling of the back porch, removing and closing out windows, replacing and framing doors, placing molding in the kitchen and various other carpentry repairs. Ms. Hughes asked Respondent to perform the additional work because she was well satisfied with the roofing job done by Respondent and she was unable to find a licensed contractor willing to come to Vernon and perform the work she wanted done. Respondent, in fact, informed Ms. Hughes he was not a contractor and in his opinion she needed a contractor. However, Ms. Hughes still wanted Respondent to do the additional work for the above reasons. Later, Mrs. Hughes became very dissatisfied with the quality of Respondent's remodeling work and advised the Respondent of her complaints. However, the evidence disclosed that her complaints were not well communicated and Respondent did generally try to meet Ms. Hughes' requests. None of Respondent's work constituted a hazardous condition and no evidence was offered which indicated an actual building code violation. The Respondent has not corrected the work. Mr. Harold Benjamin, an expert in the area of general contracting, reviewed the contract, the job site, the Respondent's license, and the pertinent Florida Statutes. Mr. Benjamin's expert opinion was that the Respondent's contracting job with Mrs. Hughes definitely exceeded the scope of Respondent's roofing license. Mr. Benjamin added that the carpentry work itself demonstrated an unfitness in the area of carpentry contracting and that Respondent's work did not in some respects meet the minimum carpentry standards for the industry. However, Respondent's work was not so bad as to constitute gross negligence in the area of contracting. This is particularly true since Respondent disclosed to Ms. Hughes that he was not a contractor and that the work she wanted done should be performed by one. Respondent's duty was thereby limited to a duty to perform reasonably given his abilities. Respondent did meet that duty. Respondent was disciplined for the same type of violation in 1986.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That the Department of Professional Regulation, Construction Industry Licensing Board impose an administrative fine of $2,500.00. DONE and ORDERED this 5th day of December, 1988, in Tallahassee, Florida. DIANE CLEAVINGER Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 5th day of December, 1988. APPENDIX TO RECOMMENDED ORDER, CASE NO. 88-2721 The facts contained in paragraphs 1, 3, 4, 6, 7 and 9 of Petitioner's Proposed Findings of Fact are adopted in substance, in so far as material. The facts contained in paragraphs 2 and of Petitioner's Proposed Findings of Fact are subordinate. The facts contained in paragraph 8 of Petitioner's Proposed Findings of Fact are adopted except as to the finding pertaining to gross negligence which is rejected. COPIES FURNISHED: Elizabeth R. Alsobrook, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 Harry Clinton Brackin Route 1, Box 2470 Chipley, Florida 32428 Bruce D. Lamb, Esquire General Counsel Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 Fred Seely, Executive Director Department of Professional Regulation Construction Industry Licensing Board Post Office Box 2 Jacksonville, Florida 32201
Findings Of Fact Respondent is Richard McDougal, holder, at all times pertinent to these proceedings, of registered roofing contractor license no. RC 0050466. 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 D & R Roofing Co., at all times pertinent to these proceedings. On July 31, 1989, Arla Jackson signed and accepted Respondent's written proposal to re-roof a house belonging to Jackson, located in Washington County, Florida. Prior to engaging Respondent to re-roof the house, Jackson had only a minimal amount of leakage in a couple of corners inside the house. Under the terms of the written proposal provided by Respondent to Jackson, Respondent agreed to remove the old roof covering from the structure; install a new three ply fiberglass felt covering; install new eave metal around the roof perimeter; extend the roof a short distance at one end; and top coat a utility building on the premises. Further, Respondent agreed to haul away debris resulting from the job. Completion of the roofing project by Respondent and receipt of payment from Jackson in the amount of $3,000 occurred on August 9, 1989. $2,900 of this amount was payment to Respondent for replacing the old roof while the remainder satisfied charges by Respondent for additional work required to extend the roof. Shortly after Respondent's completion of the roof replacement, Jackson began to telephone Respondent, requesting that he come and repair holes in the roof that were leaking water as the result of rain. Respondent came to Jackson's house on at least three occasions to attempt to stop leaks in the roof. He eventually determined that he had stopped the leaks and told Jackson that, as far as he was concerned, there was no roof leakage problem. Jackson's flat roof continued to leak. Eventually, Gus Lee, an unlicensed roofing assistant to H.M. Strickland, a local licensed contractor, agreed to repair her roof and eliminate the leakage problem. Strickland's signature appears with Lee's on written documentation bearing the date of October 1, 1989, and promising a "fine roof with no leaks; and I will stand behind it." Jackson accepted the Strickland offer. Jackson paid approximately $1,925.00 to Lee for work in connection with replacing the roof and painting the interior ceiling of the house. She paid an additional $653.79 for building supplies in connection with the project. Overall, Jackson paid approximately $2,578.79 for labor and materials to re-roof her house and repair the interior ceiling damage resulting from the leakage. This amount was in addition to the amount previously paid to Respondent. On October 20, 1989, Lee, the unlicensed assistant to Strickland and the person who actually undertook the task of re-roofing Jackson's house, removed the previous roofing material placed on Jackson's house by Respondent. Lee observed no fiber glass felt covering material on Jackson's roof at the time he re-roofed the house. Lee's testimony at hearing was credible, candid and direct. Although unlicensed as a contractor, Lee's attested experience supports his testimony regarding what he observed and establishes that Respondent failed to comply with his agreement to Jackson to provide fiber glass felt during the initial roofing of the house and instead used a less expensive material. Lee's testimony, coupled with that of Jackson and Lee's son, also establishs that significant damage had occurred to the interior ceiling of Jackson's house as the result of leakage after completion of work by Respondent. After Lee completed the re-roofing of Jackson's home, inclusive of use of a six ply felt covering on the roof accompanied by pea gravel and sealant, the roof's leakage stopped.
Recommendation Based on the foregoing, it is hereby RECOMMENDED that a Final Order be entered imposing an administrative fine of $1500 upon Respondent's license as a registered roofing contractor. DONE AND ENTERED this 25th day of November, 1991, in Tallahassee, Leon County, Florida. DON W. DAVIS Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Fl 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 25th day of November, 1991. APPENDIX TO RECOMMENDED ORDER 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.-4. Adopted, though not verbatim. 5.-8. Subordinate to Hearing Officer's Conclusions. 9.-11. Adopted in substance, though not verbatim. Respondent's Proposed Findings. None submitted. COPIES FURNISHED: Robert B. Jurand, Esq. Department of Professional Regulation The Northwood Centre, Suite 60 1940 N. Monroe St. Tallahassee, FL 32399-0792 Richard McDougal Box 10277 Panama City, FL 32404 Daniel O'Brien, Executive Director Construction Industry Licensing Board Department of Professional Regulation Post Office Box 2 Jacksonville, FL 32201 General Counsel Department of Professional Regulation The Northwood Centre, Suite 60 1940 N. Monroe St. Tallahassee, FL 32399-0750
The Issue Whether Respondent, Glenn V. Curry, committed the offenses alleged in the Administrative Complaint and, if so, what discipline should be imposed against Respondent's roofing contractor's license.
Findings Of Fact At all times pertinent to this proceeding, Respondent, Glenn V. Curry, was a certified roofing contractor having been issued license C-3810. During times material hereto, Respondent was the qualifying contractor for Economic Roofing Company, 2538 Surinam Court, Holiday, Florida. On or about December 27, 1995, Connie Socash, an investigator with the Pinellas County Construction Licensing Board, observed two individuals performing roofing work on the structure located at 2024 Cleveland Street in Pinellas County, Florida. Adjacent to the Cleveland Street property was a truck from which the individuals were working. Affixed to the truck was a magnetic sign with the words "Economic Roofing" printed on it. When approached by Ms. Socash, the two people performing the roofing work stated that they were subcontractors for Economic Roofing. One of the individuals performing the roofing work identified herself as Bonnie Sargent. However, neither of the individuals provided Investigator Socash with a roofing contractor's license or license number. After determining that Petitioner had not issued a roofing contractor's license to Bonnie Sargent, Investigator Socash issued a citation to the person identifying herself as Bonnie Sargent. The citation was issued to Ms. Sargent for subcontracting and performing "roofing work without a competency license as required by law." The citation, which was signed by Ms. Sargent, listed the following two options that were available to her: (1) pay a fine of $125.00 within a specified time period; or (2) appear at the Pinellas County Misdemeanor Courthouse on January 19,1996. Ms. Sargent chose the first option and paid the fine of $125.00 on or about January 9, 1996. After issuing the citation to Bonnie Sargent, Investigator Socash contacted Respondent regarding the Cleveland Street roofing project. Respondent refused to cooperate with Investigator Socash and failed to provide her with any information regarding the relationship of Bonnie Sargent to Economic Roofing. Prior to this case, Respondent has not been the subject of any disciplinary action by the Pinellas County Construction Licensing Board.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Pinellas County Construction Licensing Board enter a Final Order: Finding Respondent, Glenn V. Curry, guilty of violating Section 489.129 (1) (e), Florida Statutes, and Chapter 89-504, Section 24 (2) (d), (e), (j), and (m), Laws of Florida as alleged in the Administrative Complaint. Imposing an administrative fine of $750.00. Suspending Respondent's roofing contractor's certificate for one year. Such suspension may be stayed subject to terms and conditions prescribed by the Pinellas County Construction Licensing Board. DONE and ENTERED this 27th day of August 1996, in Tallahassee, Florida. CAROLYN S. HOLIFIELD Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 27th day of August, 1996. COPIES FURNISHED: William J. Owens Executive Director Pinellas County Construction Licensing Board 11701 Ulmerton Road Largo, Florida 34643-5116 Glenn V. Curry 2538 Surinam Court Holiday, Florida 34691 Howard Bernstein, Esquire County Attorney's Office 315 Court Street Clearwater, Florida 34616-5165
Findings Of Fact The Respondent's name is Troy Griffin. The Respondent is now and was at all times relevant to the pending Administrative Complaint, a registered residential contractor in the State of Florida having been issued license number RR 0030688. The Respondent is not now and at no time material to the pending Administrative Complaint was the Respondent a certified or registered roofing contractor in the State of Florida. At all times material to the pending Administrative Complaint, the Respondent's license #RR 0030688 qualified Griffin Remodeling & Repairs, Jacksonville, Florida. In June 1978 the Respondent d/b/a Griffin Remodeling and Repairs contracted to repair the residence of June Moody, Jacksonville, Florida. The contracting work included work upon the Moody's built-up roof, which Respondent re-roofed pursuant to contract. Respondent built up the roof with more than one layer of felt in 1978. These layers were discovered by the city's inspector in 1982. Respondent returned in 1978 and patched the roof he installed. These patches were seen by the city's inspector in 1982. The owner, Moody, did not complain of leaks in 1982. There was no evidence of leaks in 1982. A roof poorly installed without sufficient tar and felt will leak within the time that has passed between 1978 and 1982. See inspector's testimony in response to Hearing Officer's question. Moody's home was a single family, one story residence. No evidence was received regarding whether the City of Jacksonville requires examinations of roofing contractors prior to their certification.
Recommendation Having found that the Respondent did not commit the alleged violations, it is recommended that the Administrative Complaint be dismissed and no action be taken. DONE and ORDERED this 23rd day of August, 1985, in Tallahassee, Florida. STEPHEN F. DEAN Hearing Officer Division of Administrative Hearings The Oakland Buildina 2009 Apalachee Parkway Tallahassee, Florida 32301 (904)488-9675 Filed with the Clerk of the Division of Administrative Hearings this 23rd day of August, 1985. COPIES FURNISHED: W. Douglas Beason, Esq. Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Troy Griffin 7443 Laura Street Jacksonville, Florida 32202 Fred Roche, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 James Linnan, Executive Direetor Department of Professional -I Regulation. Construction Industry Licensing Board P. O. Box 2 Jacksonville, Florida 32202
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.
