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
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 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 issues are based upon an administrative complaint brought by the State of Florida, Department of Professional Regulation against Phillip E. Sheffield, Respondent. In particular, Respondent is said to have violated the building code of the City of Jacksonville, Florida by failing to obtain a building permit before commencing construction work related to a roofing project and building the roof to a slope that was contrary to that local building code. For violations of the City of Jacksonville building code, Respondent is said to have violated Section 489.129(1)(d), Florida Statutes, by willful or deliberate violation and disregard for the applicable building code of the municipality. Finally, Respondent is said to have violated Section 489.113(3), Florida Statutes by failing to subcontract roofing work.
Findings Of Fact Jurisdiction findings Petitioner is the state agency charged with regulating licenses for roofing contractors in the State of Florida. At all times material to the allegations of these cases, Respondent held two licenses; he was a certified roofing contractor, license no. CC CO55580, and a registered roofing contractor, license no. RC 0060386. Respondent filed an application to qualify the company, D.S.S. & Sons, Inc., as a licensed roofing contractor; however, he failed to complete all documents necessary for licensure, and his application was closed for lack of response effective August 3, 1993. Respondent's address of record with the Department is 821 SW Dwyer Street, Port St. Lucie, Florida 34983. D.S.S. & Sons, Inc. is not now, nor has it ever been, licensed to perform roofing construction by the State of Florida. Facts common to all consumers On or about August 24, 1992, Hurricane Andrew struck Dade County, Florida, resulting in damage to hundreds of roofs. Roof repair or total replacement following the storm was not uncommon. Due to the large amount of damage, and the demand for roofing materials created by the volume of work to be performed, some contractors had difficulty obtaining roofing supplies. Additionally, some contractors had difficulty hiring qualified labor to perform the extensive roofing that was in great demand. The problems with obtaining materials and labor, however, were short term in that most roofing contractors made arrangements to bring in supplies and staff from other areas. In fact, by the time the work was to be performed in connection with these cases, the problems which had plagued the Dade County contractors were subsiding. Additionally, at all times material to these cases, the weather would not have been a factor to justify the delays complained of by these consumers. Rainy weather did not cause any prolonged work delays after the storm. Findings as to Helmly Charles Helmly resides at 11985 SW 98th Lane, Miami, Florida. His home was damaged by Hurricane Andrew and required roof replacement. Mr. Helmly contracted with Respondent to re-roof his home for the sum of $17,940.00. The contract was signed by Respondent's salesman, Felix Fowler, and identified D.S.S. & Sons, Inc. doing business as Darryl Saibic, Roofing Contractor as the licensed entity. Mr. Helmly paid an initial deposit of $5,382.00 in order for the Respondent to begin work on the project. The next payment, an additional $5,382.00, was to be due at the "dry in" stage of the job, with the final payment (the balance) due on completion. One of the contract provisions Mr. Helmly insisted upon was a completion deadline to be stated in the contract. He was expecting visitors and he was anxious to have the home re-roofed before their arrival. He insisted that a guaranteed completion date of March 7, 1993 be noted on the face of the contract. Mr. Helmly complied with all requirements of the payment schedule outlined by the contract. In fact, he remitted $10,764.00 even though the roof had not been at the "dry in" stage. Between January and February, 1993, the Respondent removed the old roof, installed a base sheet, and nailed a single ply roof membrane to the roof. After February, 1993, the Respondent failed to timely complete the Helmly roof. The value of the work performed by Respondent on the Helmly roof was no more than $3,588.00. The Respondent did not respond to numerous telephone calls and letters from Helmly, and threatened to place a lien on the Helmly property when Mr. Helmly attempted to cancel the contract in May, 1993. Mr. Helmly went to the Dade County Building Department and complained about roof leaks in June, 1993 (Respondent had still not done any further work). On or about June 4, 1993, Respondent sent a crew to the Helmly property to repair the roof. The repairs caused the roof to leak more. Respondent did not refund Mr. Helmly's money, did not complete the roof, and showed a gross indifference to the plight which resulted when he failed to timely complete the project. In July, 1993, desperate to have his roof completed, Mr. Helmly offered to purchase the tiles himself if Respondent would have a crew come install the new roof. Respondent agreed to have a crew install the tile within ten days of its arrival. On September 17, 1993, Mr. Helmly took delivery of the new tile, paid for it in full (a cost of $4,803.00) and notified the Respondent so that the installation could begin. Respondent never returned to complete the re-roofing. He failed to honor his verbal agreement to install the tiles. By letter dated October 1, 1993, Respondent offered to reimburse Helmly for the overage if he would hire another contractor to complete the job. On October 19, 1993, Mr. Helmly hired a new contractor who completed the installation of the new roof in early November, 1993. Approximately eight months after the deadline on Respondent's contract, Mr. Helmly had his new roof. Extra expenses totalling $2,936.21 were paid by Mr. Helmly as a result of the Respondent's abandonment of this job. Findings as to Gurdian On January 14, 1993, the Gurdians contracted with Respondent through his agent, Ed Comstock, to repair the roof on their home located at 13301 SW 110 Terrace, Miami, Florida. The contract was executed as D.S.S. and Sons, Inc. d/b/a Darryl S. Saibic, Roofing Contractor and called for a total payment of $7,725.00 for the work to be done. The Gurdians made a deposit of $2,300.00 on January 14, 1993 by check made payable to D.S.S. and Sons, Inc. and received a partial release of lien. On February 8, 1993, the Respondent pulled a permit for the Gurdian home but never called for inspections on this project. In February, 1993, all the tiles were removed from the roof and roofing paper was installed. On March 1, 1993, the Gurdians made a second payment of $2,300.00 by check made payable to D.S.S. and Sons, Inc. and received another partial release of lien. The Respondent did not timely complete the Gurdian roof. From June through November, 1993, Respondent sent the Gurdians unsigned notices claiming he would return to their job but did not do so. Numerous excuses were offered as to why the project was not completed; however, none of these had merit. The Gurdians waited until April, 1994 hoping the Respondent would return and complete the work. They drove to Respondent's office and left a message seeking assistance. Finally, Respondent recommended a company called CTI to complete the roof work for the Gurdians. When contacted, CTI told the Gurdians it would cost $7,600.00 to complete their job for which they, not Respondent, would be responsible. The Gurdians then attempted to notify the Respondent at his address of record by certified mail of their continuing problems but the letter was returned to them unopened. In June, 1994, the Gurdians hired another company to finish their roof which was finally complete and passed inspections on July 26, 1994. The Gurdians were required to pay a total of $13,475.00 to have their roof replaced because the Respondent failed to perform under the original contract. Due to the Respondent's abandonment and indifference in connection with this project, the Gurdians were damaged in an amount not less than $4,200.00. The value of the work performed by Respondent on the Gurdians' roof did not exceed $1,545.00. Respondent has not refunded any of the funds paid by the Gurdians. Findings of fact as to Vila Marta Vila resides at 11116 SW 133 Place, Miami, Florida 33186. Like the others discussed above, the Vila home was damaged and required a new roof. On January 13, 1993, Vila signed a contract with Ed Comstock acting on behalf of D.S.S. and Sons, Inc., doing business as Darryl S. Saibic, Roofing Contractor, to have her roof repaired for a total contract price of $7,200.00. A down payment of $2,160.00 made payable to the company was made at that time. On February 8, 1993, Respondent pulled a permit to re-roof the Vila home. On February 15, 1993, Vila paid an additional $2,160.00 to Respondent. At that time Respondent removed the tiles from the Vila roof and installed one layer of roofing paper over the roof decking. Despite representations from Respondent that new tiles would be delivered in approximately three to four weeks, the Respondent did not install a new roof on the Vila home. In February and March, 1993, the roof was patched three times to stop leaks but no substantive work was performed to install new tiles. Respondent did not return to the Vila home despite numerous requests from the homeowner for the work to be completed. In June, 1993, Respondent represented that the Vila job might be completed if the tiles were sent out COD. When Vila attempted to verify that information, she was told she had paid enough to not have that concern. However, no tiles were ever delivered to her home. In August, 1993, Vila, after Respondent failed to return telephone calls, wrote to Respondent and demanded a refund. She has not received one. Vila ended up paying $7,754.00 to another contractor to have her roof replaced. The value of the work performed by Respondent on the Vila project did not exceed $1,440.00 yet he has failed or otherwise refused to refund the difference between that amount and what she paid. Vila has suffered monetary damages in an amount not less than $4,800.00 as a result of Respondent's abandonment of this project. Findings of fact as to Bermudez Mr. and Mrs. Bermudez reside at 8335 SW 147th Place, Miami, Florida. On November 30, 1992, they signed a contract with Respondent in the amount of $6,400.00 to correct extensive leakage on both floors of the Bermudez home. Mrs. Bermudez gave a deposit in the amount of $1,860.00 and was told that the repairs would begin in two weeks and be completed in approximately five weeks. In December 1992, and January, 1993, the Respondent performed some minor patching but no significant work was undertaken to repair the Bermudez home. In January, 1993, Respondent pulled a permit to replace the Bermudez roof. Within a week of the permit, Respondent sent an unsigned form letter to the Bermudez advising them that there would be delays. In February and March, 1993, the Respondent's crew stripped the old tile off the Bermudez home and installed batten and roofing paper over the decking. Mrs. Bermudez made deposits totalling $3,720.00 to Respondent in connection with this contract. Despite numerous requests from Mrs. Bermudez, Respondent did not complete the roof. In July, 1993, Respondent sent a crew to the Bermudez home in connection with a leak but the repair did not resolve the problems and did not substantively finish the roof. As with the other cases, between July and November, 1993, Respondent sent numerous unsigned form letters to Mrs. Bermudez offering false or ridiculous excuses for why the project had not been completed. In January, 1994, Mrs. Bermudez filed a formal complaint against Respondent but he never completed the job nor refunded the deposits. Between March and July, 1994, Respondent represented he would complete the Bermudez job but did not do so. The Bermudez roof was not completed until December 13, 1994. As a result of Respondent's incompetence, inability, or refusal to complete the Bermudez roof, the family lived with a leaking roof for approximately two years and incurred unnecessary expenses. Respondent showed a gross indifference to the plight of the Bermudez family. Respondent could not have timely completed the projects described above during the period July, 1993 to July, 1994, as his workers compensation had expired. The numerous promises to perform the contracts as originally agreed were meaningless.
Recommendation Based on the foregoing, it is, hereby, RECOMMENDED: That the Department of Business and Professional Regulation, Construction Industry Licensing Board enter a final order revoking Respondent's licenses, requiring Respondent to make full restitution to the consumers in these cases before being entitled to seek new licensure, imposing an administrative fine in the amount of $10,000, and assessing costs of investigation and prosecution of these cases as set forth in the affidavits filed in this cause. DONE AND RECOMMENDED this 25th day of October, 1995, 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 25th day of October, 1995. APPENDIX TO RECOMMENDED ORDER, CASE NOS. 95-1079, 95-1080, 95-1081, 95-1082 Rulings on the proposed findings of fact submitted by the Petitioner: 1. Paragraphs 1 through 155 are accepted. Rulings on the proposed findings of fact submitted by the Respondent: 1. None submitted. COPIES FURNISHED: Elizabeth Masters Senior Attorney Department of Business and Professional Regulation 7960 Arlington Expressway, Suite 230 Jacksonville, Florida 32211 Darryl Saibic 821 S.W. Dwyer Road Port St. Lucie, Florida 34983 Richard Hickok Executive Director Department of Business and Professional Regulation Construction Industry Licensing 7960 Arlington Expressway, Suite 300 Jacksonville, Florida 32211-7467 Lynda L. Goodgame General Counsel Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792
Findings Of Fact At all times here relevant Respondent was licensed as a roofing contractor and qualifying agent and owner of Handyman Service Company, Pinellas Park, Florida. In November or December 1982, representatives of Sandalwood Club Association contacted Richard Fabrizi, who was acting as sales agent for Handyman Service Company, about some repairs desired at their condominiums. Fabrizi advised Respondent and several meetings were held with Sandalwood representatives after which contract proposals for work desired by Sandalwood were presented by Respondent. It became apparent that complete reroofing of the Sandalwood condominiums was needed; however, the association did not have sufficient funds at that time for such a project. As a result of the negotiations a repair contract was entered into between Handyman and Sandalwood Club whereby Handyman contracted to perform certain work for $16,000 (Exhibit 1). At about the time this contract was entered into Pinellas Park became incorporated and established its own building department. Respondent was qualified to perform roofing contracting in Clearwater, in whose jurisdiction Sandalwood was placed before Pinellas Park, but he had not qualified to contract in Pinellas Park. When this was realized, Respondent engaged the services of Edgar Plumtree, a licensed contractor, to pull permits and supervise the roofing at Sandalwood. The permit for this work (Exhibit 2) was signed by Joseph A. Saturno, contractor, but no evidence was presented regarding Saturno or how his name came to appear on Exhibit 2. Expert testimony was presented that the work proposed to be performed in Exhibit 1 constituted much more than repair work; however, Respondent's witness's testimony that the contract was intended by all parties to be a temporary repair, guaranteed for three years, was unrebutted. Expert testimony that the use of 90# mineral-coated roofing material in valleys did not comply with the Southern Standard Building Codes, which has been made applicable to Pinellas Park, was modified on cross-examination by testimony that such material could be used for repairs if approved by the building inspector. The evidence was unrebutted that the building inspector approved the use of the 90# roofing in the valleys. The expert witness further found violation of codes when a coating material was placed over aggregate surface on a flat roof or aggregate was reused without cleaning; however, on cross-examination this witness acknowledged that rerocking was not a code violation if sold as a repair in lieu of new roof. He did not consider the scope of the work shown in Exhibit 1 to be compatible with a minor repair, despite the intent of the parties to so treat this work. The work on the Sandalwood project was completed in March 1983. Sandalwood was in the process of issuing a contract to replace the shingles on their sloping roofs and in May 1983 Respondent met with Sandalwood Condominium Association as one of the bidders was unhappy with the roofing repairs done by Handyman. Due to brittle shingles the tie-ins were unsatisfactory. An appointment was set up with representatives of the Pinellas Park Building Inspector, Sandalwood representatives, and Handyman representatives. Handyman was also bidding on the shingle replacement contract. On May 26, 1983, this meeting was held including the successful bidder (Baker) on the shingle roof replacement contract. The building inspector, Respondent, Baker, and Sandalwood representatives went on the roofs. The building inspector suggested Baker do the tie-ins from the work done by Handyman, for which the latter agreed to pay, but Baker declined. Thereafter, the flashing between the shingle roofs and the flat roofs was installed by Handyman and the shingles by Baker. Exhibit 6 indicates the shingles do not properly cover the flashing. Respondent's testimony that the work performed by Handyman was exactly what Sandalwood requested them to perform was not rebutted.
Recommendation It is RECOMMENDED that Franklin A. Marciano be issued a letter of reprimand for completing a roofing repair contract in a municipality in which he was not licensed. DONE AND ENTERED this 19th day of October 1984 at Tallahassee, Florida. K. N. AYERS Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 19th day of October 1984. COPIES FURNISHED: Charles Tunnicliff, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Frank A. Marciano 11327 43rd Street, North Clearwater, Florida 33520 Fred M. Roche, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 James Linnan, Executive Director Board of Construction Industry Licensing Board Department of Professional Regulation Post Office Box 2 Jacksonville, Florida 32202
Findings Of Fact Bruce A. Williams, Respondent, is the holder of a registered roofing contractor's license from the Florida Construction Industry Licensing Board. The license number is CC C020246. Respondent is vice president of Dean Roofing and Sheet Metal, Inc. (The Dean Company), Post Office Box 2077, Clearwater, Florida. By proposal submitted March 31, 1983, and accepted by Marshall Kent on April 1, 1983, the Dean Company contracted to remove the existing roof on Kent's residence and replace same at a price of $8,600 (Exhibit 1). The work was supposed to start April 11, 1983 and be completed on April 15, 1983. This contract was signed on behalf of Dean Company by Bruce A. Williams, Respondent, as vice president of Dean Company and by Marshall Kent. Kent is an experienced residential contractor who acknowledged having built approximately 2,000 homes. While removing the existing roof, Dean Company workers found the 30-year old house had three plys of roofing applied since the house was constructed and to remove this thick roof heavier equipment that normal was required. Kent's residence had a tectum roof decking which consists of a metallic-fiber substance which has a long life and serves as inside ceiling and outside roof decking over which built up roofing is applied. While removing the existing roof the tectum deck was fractured and Kent ordered Dean Company workers off the Job. By letter dated April 18, 1983 (Exhibit 6) Respondent advised Kent that the cost of replacing the damaged tectum would be borne by the Dean Company and it was necessary to get on with the project before additional damage was done through the areas of roof exposed by removal of the original roof. Upon seeing Exhibit 6, K. A. Williams, president of Dean Company and father of the Respondent, concluded that the problems may have been exacerbated by a personality conflict between Respondent and Kent, and turned the job over to R. L. MacMurry, another vice president at Dean Company, who had considerable experience in the roofing business. By letter dated Apri1 19, 1983 (Exhibit 7) MacMurry, on behalf of Dean Company, advised Kent that since he questioned their ability to properly install the new decking to replace the damaged decking they would employ the services of a general contractor to replace the damaged tectum, and if the replaced tectum did not match the original tectum they would have the entire ceiling painted. Kent denies receiving this letter. Kent refused these offers and by letter dated April 21, 1983 "Exhibit 8) R. A. Williams pointed out that Kent's refusal to allow Dean Company to immediately complete the roofing work in progress could lead to serious damage from water intrusion and that such damage would be Kent's responsibility. On Friday, April 29, 1983 a meeting was held between the Kents, Williams and MacMurry at which Dean Company -agreed to immediately recommence roof work, bring in a general contractor to replace the damaged decking and complete the contract. Kent demurred until the agreement was reduced to writing, preferably by an attorney. Kent prepared an endorsement on Exhibit 9 in which responsibility for the repairs was, in Kent's opinion, shifted to the general contractor. This endorsement was accepted by the parties on May 3, 1983. The residence was reroofed in accordance with the latter agreement and Kent never advised Dean Company that all work was not satisfactorily completed. Dean Company provided Kent with a five (5) year Roofing Guarantee (Exhibit 11) dated May 10, 1983, which was forwarded to Kent by letter dated May 11, 1983 (Exhibit 10) with an invoice for the total owed on the job (Exhibit 14). Kent responded with letter dated May 17, 1983 (Exhibit 23) contending he was not whole, the job was not. complete and the guarantee was a joke. Kent considered the Roofing Guarantee suspect because it was a form used by the Midwest Roofing Contractor's Association. Shortly after this time Kent was hospitalized for psychiatric treatment and upon his release from the hospital in August 1983 he found that a mechanic's lien had been placed on his property by Dean Company. He also found what he believed to be leaks into the ceiling of a bedroom but made no complaint to Dean Company. Kent then hired a roofer, Chuck Goldsmith, to inspect the work done on his roof. When Goldsmith tried to negotiate the dispute between Kent and Dean Company, Kent fired him. Kent then hired William A. Cox, an architect and roofing consultant, to inspect the roof and advise what needed to be done. Cox inspected the roof in late October 1983 and submitted a list of discrepancies he recommended for correction. In one place he was able to insert a knife blade between the Fla. roof and the vertical wall against which the roof abuts which indicated no sheathing had been installed. Expert witnesses opined that without metal sheathing the roof would have leaked within six to eighteen months and the roof could never have been intact for the 30 years the house had been built without sheathing at such a joint. The vertical side of the original flashing would have been under the stucco at this point and there was no evidence that the stucco was disturbed when the new roof was first installed by Dean Company. New flashing was subsequently installed by Dean Company at this juncture but no one testified respecting the flashing observed or not present when this new roof was removed to insert the new flashing. Failure to insert flashing at such a juncture of horizontal roof and vertical wall would constitute a violation of the Standard Building Code. The report Cox gave to Kent was not made known to Dean until January 1984. By letter dated August 21, 1984 (Exhibit 13) Clark and Logan advised K. A. Williams that they would do all of the work listed in the Cox report on the Kent residence. This work was done in August 1984. Kent contends the leak continued in his bedroom after the work was completed but he never relayed this information to either Clark and Logan or to Dean Company. He has yet to pay one penny for the work done on his roof. Kent considered Clark and Logan to be the prime contractor on the job at the time the August 1984 work was done. Kent further testified that following that work Clark and Logan abandoned the job and he also filed a complaint against that general contractor. Since April 1983 following the damage to the tectum decking, Respondent, Bruce Williams, has had no responsibility for, and did no supervision of, the reroofing of Kent's residence. When the roof was inspected by the Pinellas County Building Inspector he found the workmanship done on this job only slightly below standard. At one place-on the roof Cox found the lower section of flashing overlapped the upper section of flashing which would have permitted water to enter under the flashing. This was a mistake but not an uncommon one for roofers to make. When pointed out to Dean Company the situation was promptly corrected.
The Issue Whether Respondent committed the violation alleged in the Administrative Complaint? If so, what punitive action should be taken against Respondent?
Findings Of Fact Based upon the evidence adduced at hearing, and the record as a whole, the following findings of fact are made: Respondent is a roofing contractor. He is now, and has been at all times material to the instant case, licensed to engage in the roofing contracting business in the State of Florida. He has held license number CC C049569 since 1989. In the eight years that he has been licensed, he has been disciplined once. On January 28, 1993, Respondent was issued a Uniform Disciplinary Citation alleging that, "on the 8th day of July, 1992, and the 19th day of August, 1992, [he] did violate the following provisions of law: Section 489.129(1)(j), Florida Statutes (1991), by violation of Section 489.119(5)(b), Florida Statutes (1991), by committing the following act(s): failing to include a license number on a contract and failing to include a license number on an advertisement at: 771 S.W. 61st Terrace, Hollywood, Florida 33023." Respondent did not contest these allegations. Instead, he chose to pay a $200.00 fine for having committed the violations alleged in the citation. Respondent is now, and has been since February 21, 1990, the primary qualifying agent for Ray Guy Roofing, Inc., a roofing contracting business owned by Respondent and located in Hollywood, Florida. Respondent's brother, Rodney Guy (Rodney), is also in the roofing business in the South Florida area. At all times material to the instant case, Rodney engaged in such business under the name "Hot Rods Roofing." In addition to having his own business, Rodney also, on occasion, worked for Respondent. In August of 1992, Rodney entered into a written agreement (Contract) with Christopher Klein in which Rodney agreed, for $7,000.00, to replace the damaged roof on Klein's residence in Dade County1 with a new roof with a seven-year warranty (Project). Subsequently, the Contract price was increased $500.00 to $7,500.00 by mutual agreement. Prior to the commencement of work on the Project, Respondent verbally agreed to assume Rodney's obligations under the Contract. Klein paid the Contract price in full, by check, in two installments. Both checks were made out to Hot Rods Roofing (in accordance with the instructions Klein was given) and cashed by Rodney. The second check contained the following handwritten notation made by Klein: "payment in full - roof - includes Ray Guy Roofing, Inc." The Project was completed on or before September 18, 1992. The work was done by Respondent and the employees of Respondent's roofing business, including Rodney. Following the completion of the Project, the roof started to leak. Klein thereafter unsuccessfully attempted to contact Respondent and Rodney by telephone to apprise them of the situation. On or about August 1, 1993, Klein sent a letter to Respondent and Rodney advising them of the leaks in the roof and requesting that they "send someone to fix them." Neither Respondent nor Rodney responded to Klein's letter. Klein therefore hired someone else to fix the leaks. Leaks subsequently redeveloped in the roof. Klein again unsuccessfully attempted to contact Respondent and Rodney by telephone to bring the matter to their attention. On or about March 22, 1994, Klein sent Respondent and Rodney a letter, which read as follows: As you will recall, you acted as partners in the installation of a new roof at my house after Hurricane Andrew. I have developed a leak and I have been attempting to contact both of you for over a month in connection with warranty work related thereto. I am surprised that you have ignored me because, as you will recall, my hiring you resulted in your obtaining at least 3 other jobs on my street. Please contact me within one week to schedule the repair. If I do not receive word from you, I will be forced to hire another roofing company and I will thereafter send you the bill. The bill will be for the roof repairs and to repair interior damage. Neither Respondent nor Rodney responded to Klein's request. Klein made temporary repairs to the roof at his own expense. Klein, who is a member of The Florida Bar, subsequently filed a complaint in Dade County Court (in Dade County Court Case No. 95-7415 CC 02) seeking a judgment for damages, plus interest and costs, against Ray Guy Roofing, Inc., Respondent, and Rodney for breach of contract (Count I), negligence (Count II), and breach of warranty (Count III). Respondent was served with a copy of the complaint on or about May 12, 1995. Shortly thereafter Klein received a telephone call from Respondent, who wanted to speak to Klein about the lawsuit. During their telephone conversation, they agreed to meet at 5:30 p.m. on May 17, 1995, at Klein's residence to discuss the possibility of settling the lawsuit. Respondent did not show up for the meeting, nor did he telephone or otherwise communicate with Klein to explain his absence. Respondent also failed to respond to Klein's complaint.2 On June 30, 1995, pursuant to Klein's written request, a Final Default Judgment was entered against Respondent and Ray Guy Roofing, Inc.,3 in Dade County Court Case No. 95-7415 CC 02. The Final Default Judgment provided as follows: THIS CAUSE came before the Court this date on Plaintiff's Motion for Final Default Judgment against Defendants Raymond Guy, Individually and Ray Guy Roofing, Inc., and the Court having noted that said Defendants were duly served and defaulted herein, and the court being otherwise duly advised in the premises, it is thereupon ORDERED that Plaintiff's Motion is granted and that Plaintiff, Christopher J. Klein, hereby recovers from Defendants, Ray Guy Roofing, Inc., and Raymond Guy, Individually, the principal sum of $5,500.00 plus costs in the sum of $198.00, making a total sum due of $5,698.00, for which sum let execution issue. Klein sent a copy of the Final Default Judgment to Respondent by United States Mail on or about July 21, 1995. The Final Default Judgment was not appealed, and it has not been vacated, set aside, discharged, or satisfied, in whole or in part.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department issue a final order (1) finding Respondent guilty of the violation of Section 489.129(1)(r), Florida Statutes, alleged in the Administrative Complaint, and (2) disciplining Respondent for having committed this violation by requiring him to: (a) pay a fine of $1,000.00; submit proof of satisfaction of the Final Default Judgment entered in Dade County Court Case No. 95-7415 CC 02; and reimburse the Department for all reasonable costs associated with the Department's investigation and prosecution of the charges set forth in the Administrative Complaint. DONE AND ENTERED this 25th day of September, 1997, in Tallahassee, Leon County, Florida. STUART M. LERNER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 25th day of September, 1997.
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
