The Issue Whether the Respondent committed the violations alleged in the Second Amended Administrative Complaint dated June 13, 1997, and if so, the penalty which should be imposed.
Findings Of Fact Based on the oral and documentary evidence presented at the final hearing and on the entire record of this proceeding, the following findings of fact are made: The Department of Business and Professional Regulation ("Department") is the state agency responsible for regulating the practice of engineering in Florida and for investigating and prosecuting complaints against licensed engineers. Sections 455.201 and .225, Florida Statutes. The Board of Professional Engineers ("Board") is the state agency responsible for certifying candidates for licensure as engineers and for disciplining licensed engineers. Sections 471.007, .015, and .033, Florida Statutes. At the times material to this action, Alberto L. Ribas was licensed by the Department as a professional engineer, having been issued license number PE 0014452. Mr. Ribas has been a licensed professional engineer in Florida since 1970. On or about November 18, 1992, Mr. and Mrs. Alberto Costa entered into a contract with Miguel M. Cruz for the re-roofing of their home located in Miami, Florida, after it had been damaged by Hurricane Andrew. The job involved the installation of Venezuelan Clay "S" roofing tiles, and building permit number 93093185 was issued by the Metropolitan Dade County Building and Zoning Department on January 7, 1993. According to the building permit, the re-roofing job would require the installation of 3200 roofing tiles covering 3200 square feet. At some point during the installation of the roof, Mr. Costa noticed what he thought were problems with the way the tiles had been nailed to the roofing deck. He immediately telephoned the Metropolitan Dade County Building and Zoning Department and requested an inspection. On March 22, 1993, Mr. Frank Zuloaga, then a supervisor of roofing inspectors with the Metropolitan Dade County Building and Zoning Department, conducted an inspection of the work completed to date on the roof of Mr. Costa's residence. Mr. Zuloaga noted on the inspection tag that he left on the site that, among other things, "[t]iles must have 2 nails." He did not approve the installation of the roofing tiles he inspected and prepared a notice dated March 25, 1993, in which he advised Mr. Cruz that he was in violation of the South Florida Building Code. Mr. Zuloaga specifically stated in the notice that the roofing tiles were not installed according to manufacturer's specifications; that Mr. Cruz had failed to call for an earlier, mandatory inspection; and that the workmanship was not according to code. Mr. Zuloaga required in the notice that the work be corrected by April 21, 1993, by removing non-complying tiles and installing tiles in accordance with manufacturer's specifications and by ensuring that the workmanship on the job reflected installation in "accordance with SFBC [South Florida Building Code] and the mfr [manufacturer's] recommendation." At some point, Mr. Cruz asked Mr. Ribas to look at the roofing tiles he had installed on Mr. Costa's residence and to write a letter to the Metropolitan Dade County Building and Zoning Department expressing his opinion about the adequacy of the installation. After inspecting the installation of 600 of roofing the tiles, Mr. Ribas wrote a letter addressed to the "Metro Dade County Building Department" which stated in its entirety: Re: Residence at 10361 Sw 15th Terrace Permit No. 93-093185, Dated 1-7-93 Gentlemen: This is to certify that after having inspected the roof of the above listed residence, I have found about 600 roofing tiles properly installed and anchored with a common #10 hot dipped galvanized nail and RT600 adhesive applied to same, making for a stronger layout than the one specified for by the manufacturer. The letter was signed by Mr. Ribas, who identified himself as "Albert L. Ribas, P.E., Registration #14452." Mr. Ribas gave the letter to Mr. Cruz and had no other involvement with the Costa roofing project. The inspection of the roofing tiles was not undertaken by Mr. Ribas to determine if the tile installation conformed with the South Florida Building Code, and the letter he wrote expressing his opinion about the installation of the 600 roofing tiles did not, and was not intended to, certify that the installation was complete or that the installation was done in accordance with the South Florida Building Code. Mr. Ribas was not aware at the time he inspected the roof that Mr. Zuloaga had issued a notice of violations on March 25, 1993. During the times material to this proceeding, Metropolitan Dade County accepted building inspection reports from independent contractors under contract with the Building and Zoning Department for such services. These contractors were required to be certified by the Metropolitan Dade County Board of Rules and Appeals. In addition, final building inspection reports were accepted from special inspectors, who were hired by a property owner to inspection a particular project. The code in effect in 1993 required that a person be approved as a special inspector by the appropriate authorities. Mr. Ribas was not acting in the capacity of a special inspector when he inspected the 600 roofing tiles installed on the roof of Mr. Costa's residence. The permit history file maintained by the Metropolitan Dade County Department of Building and Zoning does not contain the April 30 letter written by Mr. Ribas, and there is no record that the letter was logged onto the computer as part of the permit history file nor that it was accepted by the Metropolitan Dade County Building and Zoning Department as the final inspection of the roof on Mr. Costa's residence. The letter does not appear in the microfilm copy of the permit file maintained Metropolitan Dade County Building and Zoning Department for the re-roofing project. There are a number of things which must be done correctly in order for roofing tiles to be properly installed: You look for several things. You look at the method of attachment, you look at head lap, you look at the side laps, you look how they're put together, you look whether they're installed on batons, if those batons are vertical or horizontal or they're installed directly to the sheathing itself. You look at the membranes beneath it and assure, that if it's required, that proper sealants have been used for nails to penetrate, so the roof won't leak later. That's the majority of the things. 1/ The actual tiles that had been installed on the roof of Mr. Costa's residence at the time Mr. Ribas looked at the roof were Lifetile's Espana S-Style Tile for Nail-on System. The Product Control Notice of Acceptance for these tiles was approved on April 13, 1992, by the Metropolitan Dade County Board of Rules and Appeals and was effective until April 13, 1995. The specific conditions of the acceptance permitted these tiles to be used for nail-on systems and provided in subsection (g): "All tiles shall be fastened with a minimum two ten penny corrosion resistant minimum hot dipped galvanized nails " The South Florida Building Code in effect in April 1993 required that the type of roofing tiles installed on Mr. Costa's residence be "nailed with two galvanized nails." At the time Mr. Ribas wrote the April 30, 1993, letter, all of the inspectors were aware that the South Florida Building Code required installation of the Espana "S" tiles with two galvanized nails, and, according to Mr. Zuloaga, it would have been obvious to the inspectors that the installation did not conform to the South Florida Building Code. Pro-Series RT-600 Roof Tile Adhesive was approved by the Metropolitan Dade County Board of Rules and Appeals, effective from October 21, 1991, through October 21, 1994. The specific conditions stated in the Notice of Acceptance provides: "This approves Pro-Series RT-600? a roof tile adhesive used for the repair of existing roofs. However, the application of this product may be used with new construction in addition to the requirements for a nail-on system." When used with a nail-on system, RT-600 adhesive is used to adhere the tiles to each other, not to the roof deck. At the time he inspected the roofing tiles, Mr. Ribas knew that the manufacturer's specifications and the South Florida Building Code required the tile to be installed with two nails. He also knew that RT-600 had been approved for some uses by the Metropolitan Dade County Board of Rules and Appeals. Mr. Ribas formed the opinion expressed in the April 30 letter that attaching the tile with one nail and TR-600 provided a stronger installation than the manufacturer's specifications on his experience with RT-600 adhesive, which was in general use in the area after Hurricane Andrew; on his knowledge of general engineering principles; and on his years of experience as an engineer. He did not arrange to have the tiles tested to determine if his opinion regarding the strength of the layout would be borne out by test results. In 1996, after the Department filed its initial Administrative Complaint against him, Mr. Ribas contacted Mohamad Salleh, a licensed professional engineer who is also certified to conduct nail pull and tile uplift tests on roofing materials. Mr. Ribas asked Mr. Salleh's opinion as to whether the installation of a tile with one nail and RT-600 adhesive provided a stronger layout than the installation of a tile with two nails and no adhesive. In Mr. Salleh's opinion, it is obvious to a trained and experienced engineer that the tile installed with one nail and adhesive would provide the stronger installation. However, at Mr. Ribas' request, Mr. Salleh conducted a test to measure the amount of uplift on tiles installed with the two systems, using Protocol PA-106, established by the Metropolitan Dade County Office of Building Code Compliance. Protocol PA-106 "is a product application control test to confirm either: 1) sufficient bonding by the mortar or adhesive to the tile and underlayment in a mortar or adhesive set tile system; or 2) effective mechanical attachment of components within a rigid, discontinuous roof system." Mr. Salleh used this test because it would be the most appropriate test for his purposes. Mr. Salleh concluded from the results of the test that the installation method using one nail and RT-600 adhesive produced a stronger installation than the method using two nails and no adhesive. On June 3, 1993, Mr. Zuloaga re-inspected the roof of Mr. Costa's residence both as a follow-up to the March 22 inspection and in response to a complaint. Mr. Zuloaga found that none of the violations included in the notice to Mr. Cruz dated March 25, 1993, had been corrected. At some point, Mr. Costa hired another roofing contractor to complete the re- roofing job. The evidence presented by the Department in this case is not sufficient to establish with the requisite degree of certainty that Mr. Ribas failed to adhere to acceptable standards of engineering principles or failed to use due care in formulating the opinion stated in his letter of April 30, 1993. 2/ Furthermore, there is no evidence in this case to support a finding that Mr. Ribas's April 30, 1993, letter was submitted to the Metropolitan Dade County Department of Building and Zoning in the normal course of its business; there is no evidence to support a finding that Mr. Ribas intended the Metropolitan Dade County Department of Building and Zoning to accept the letter as the final inspection of the roof; and, there is no evidence to support a finding that the Metropolitan Dade County Department of Building and Zoning accepted the letter as the final inspection. Finally, there is no credible evidence to support a finding that, considering the entire text of the April 30 letter, Mr. Ribas intended to certify that the installation of the roofing tiles he inspected was done in accordance with the South Florida Building Code simply because he stated that the tiles were "properly installed."
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Board of Engineering of the Department of Business and Professional Regulation enter a final order dismissing the Second Amended Administrative Complaint against Alberto L. Ribas. DONE AND ENTERED this 12th day of August, 1998, in Tallahassee, Leon County, Florida. PATRICIA HART MALONO 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 Filed with the Clerk of the Division of Administrative Hearings this 12th day of August, 1998.
Findings Of Fact Based on my observation of the witnesses and their demeanor while testifying, the documentary evidence received and the entire record compiled herein, I hereby make the following Findings of Fact: At all times relevant hereto, the Respondent, Rex Alaniz, held a registered roofing contractors license, Number RC 0042021, issued by the State of Florida, Construction Industry Licensing Board (hereinafter "the Board"). The Respondent's registered address with the Board was initially 1813 Ocean Drive, Jacksonville, Florida, then changed to 23 Seatrout, Ponte Vedra Beach, Florida. The Respondent's license reflected that he was doing business as "Rex Alaniz Roofing and Remodeling Company." During June 1984, the Respondent was doing business as Alaniz & Sons Roofing Company," a name unregistered and unqualified with the Board. Ms. Audrey Kelly met the Respondent through an as placed in the "Westside Shopper," and advertising newspaper in Jacksonville. The ad stated in part as follows: "Raindrops falling on your head? . . . labor guaranteed . . . State Licensed. . . Alaniz & Sons Roofing Company. Rex Alaniz 246-0265 if you have a leak and cannot sleep, check the rest and then get the best for less. . ." Ms. Kelly called the number listed in the advertisement and met with Buddy Clark on June 5, 1984. Mr. Clark stated that he represented Alaniz & Sons Roofing Company. After Mr. Clark looked at Ms. Kelly's roof, Ms. Kelly signed a contract for the repairs to be completed. The contract provided in part that Alaniz and Sons Roofing Company would repair and seal all exposed areas in the roof and that a one year guarantee on workmanship was included. The total contract price was $735. Ms. Kelly paid Clark $200 as an initial payment on the contract. On June 7, 1984, Respondent went to Ms. Kelly's home to repair the roof. After working approximately two and one-half hours, Respondent told Ms. Kelly that he had repaired the roof. Kelly then paid Respondent the balance of $535 which remained on the contract. On June 19, 1984, a light rain fell on Jacksonville and Ms. Kelly's roof leaked again. Ms. Kelly contacted Respondent and Respondent told her that she should wait until it rained harder so that any additional leaks could be repaired at one time. About three weeks later, a heavy rain fell and the roof leaked a lot. After the heavy rain, the Respondent went out and looked at the roof but did not perform any work on it. Respondent told Kelly that the problem was wind damage and suggested that Kelly contact her insurance company. An inspection by Ms. Kelly's insurance company revealed no wind damage to the roof. Therefore, Kelly repeatedly called Respondent, reaching his answering service, but Respondent did not return her calls. The roof continued to leak until Kelly hired another roofer who replaced the entire roof. Ms. Kelly complained to the State Attorney's office about Respondent's failure to honor the warranty on the contract. In April 1984, Mr. Otis McCray, Jr. discovered three leaks in the roof of his home and called Rex Alaniz. The Respondent went out and looked at the roof and informed Mr. McCray that he could fix it. On April 28, 1984, Mr. McCray entered into a contract with Respondent to repair the three leaks in the roof for a price of $500. A one year guarantee was included in the contract. Approximately one week after the contract was signed, Respondent told McCray that the roof had been repaired. McCray then paid Respondent the full contract price of $500. After a rainfall which occurred during the week following the completion of the repair work, McCray noticed that all three of the areas were leaking again. Thereafter, McCray called the Respondent's office approximately 5 or 6 times, leaving messages with either the receptionist or Respondent's answering service concerning the leaks. McCray also had his wife telephone the Respondent, thinking that perhaps the Respondent would respond to "a woman's voice." The Respondent failed to return any of McCray's calls and failed to return to fix the roof. Mr. McCray ultimately hired someone else to put a new roof on his home. In February 1986, the Respondent entered a negotiated plea to the offense of schemes to defraud in the Circuit Court of Duval County, Florida. The failure to properly perform the repairs and honor the promised warranties in the Kelly and McCray projects were included as a part of the offenses charged. The Respondent was ordered to pay restitution to Ms. Kelly and Mr. McCray. As of the date of the hearing, the Respondent had not made restitution to either Mr. McCray or Ms. Kelly. Douglas Vanderbilt, an investigator for the Department of Professional Regulation, attempted to serve papers upon the Respondent in November of 1985. During such attempt to serve the Respondent, Mr. Vanderbilt discovered that Respondent was no longer living at 23 Seatrout Street in Ponte Vedra Beach and had moved from that address approximately two years prior to November of 1985. At no time material hereto, did Respondent report to the Board a change of address from 23 Seatrout Street, Ponte Vedra Beach. The Respondent has been disciplined by the Board for misconduct twice in the recent past. On November 15, 1984 final action was taken by the Board to suspend Respondent's license for one year, effective January 2, 1985. On November 7, 1985, final action was taken by the Board to suspend Respondent's license for ninety days, consecutive to the one year suspension effective January 2, 1985.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law it is, therefore, RECOMMENDED THAT a final order be issued requiring Respondent to pay an administrative fine of $1,000 and suspending Respondent's license for a period of five (5) years from the date of the Final Order in this case. Provided, however, that said suspension will be terminated early without further action by the Board, at any time that Respondent shall both pay said fine and provide written proof satisfactory to the Board's Executive Director of having paid restitution of $500 to Otis C. McCray, Jr. and $735.00 to Audrey L. Kelly. DONE and ORDERED this 6th day of August, 1986 in Tallahassee, Leon County, Florida. W. MATTHEW STEVENSON, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 6th day August, 1986. COPIES FURNISHED: Lagran Saunders, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Rex Alaniz 1612-5th Street, South Jacksonville, Florida 32250 Fred Seely Executive Director Construction Industry Licensing Board Department of Professional Regulation P. O. Box 2 Jacksonville, Florida 32201 Fred Roche Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Salvatore A. Carpino, Esquire General Counsel 130 North Monroe Street Tallahassee, Florida 321301 APPENDIX The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on all of the Proposed Findings of Fact submitted by the parties to this case. Rulings on Proposed Findings of Fact Submitted by the Petitioner Adopted in Finding of Fact 1. Adopted in Finding of Fact 3. Adopted in Findings of Fact 9 and 10. Adopted in Finding of Fact 10. Adopted in Finding of Fact 11. Adopted in Finding of Fact 11. Adopted in Finding of Fact 11. Adopted in Finding of Fact 12. Adopted in Finding of Fact 12. 10. Adopted in Finding of Fact 12. 11. Adopted in Finding of Fact 5. 12. Adopted in Finding of Fact 5. 13. Adopted in Finding of Fact 5. 14. Adopted in Finding of Fact 6. 15. Adopted in Finding of Fact 6. 16. Adopted in Finding of Fact 6. 17. Adopted in Finding of Fact 7. 18. Adopted in Finding of Fact 7. 19. Adopted in Finding of Fact 7. 20. Adopted in Finding of Fact 7. 21. Adopted in Finding of Fact 8. 22. Adopted in Finding of Fact 8. 23. Adopted in Finding of Fact 8. 24. Adopted in Finding of Fact 8. 25. Adopted in Finding of Fact 8. Adopted in Finding of Fact 13. Adopted in Finding of Fact 13. Adopted in Finding of Fact 13. Adopted in Finding of Fact 13. Rulings on Proposed Findings of Fact Submitted by the Respondent (None submitted) ================================================================ =
Findings Of Fact Petitioner, Department of Professional Regulation, Division of Real Estate, is the state licensing and regulatory agency charged with the responsibility and duty to prosecute administrative complaints filed pursuant to Section 20.30, Florida Statutes and Chapters 120, 455 and 475, Florida Statutes and rules and regulations promulgated pursuant thereto. Respondent, Andrea S. Carollo, was, at all times material hereto, a licensed real estate broker having been issued license number 0229337. The last licensed issued was as a broker c/o Florida Leisure Realty, Inc. t/a ERA, 27427 SR 54, Wesley Chapel, Zephyrhills, Florida 33543. Randy Locke and Geoffrey Bickerdike are not and have not been licensed, during times material, in any capacity with the Florida Construction Industry Licensing Board or the Florida Real Estate Commission. During July 1990, the Beardsleys entered into a contract to purchase realty situated at 220 Debbie Lane, Lutz, Florida. Additionally, the Beardsleys executed an addendum providing for the replacement of the roof. Negotiations for the contract and sale and the contract with its addendum were prepared by Respondent's licensed real estate salesman, Frank Kinsinger, an employee of Florida Leisure. The subject property was owned by Respondent's relatives, the Barettas, (aunt and uncle) who resided in Illinois. In anticipation of the sale of their rental property, the Barettas requested that Respondent obtain proposals to repair the roof. Pursuant to their request, Respondent obtained several proposals including proposals from Sun Roofing of Tampa, Hardy Roofing & Construction, Imperial Roofing Contractors, Inc. and Geoffrey Bickerdike. The proposals from all of the companies, with the exception of Bickerdike, all claimed that they were licensed roofing contractors. Respondent was acquainted with Bickerdike who represented himself in the past as a licensed contractor. Respondent was unaware that Bickerdike was not licensed by the Florida Construction Industry Licensing Board or the local board (Pasco County). Of the proposals received from the various contractors, the Barettas selected Bickerdike's proposal to repair the roof since his proposal also included additional work that the home needed. During the period when the Respondent accepted the proposals and the Beardsleys entered into the contract, the Barettas replaced the roof and undertook certain FHA repairs that were required. After execution of the contract, Bickerdike subcontracted with Randy Locke (Locke) a subcontractor to replace the roof. A permit was not pulled for the removal and replacement of the roof. Respondent was unaware that Bickerdike had subcontracted the roofing job and the other repairs to Locke and that a permit had not been pulled for the repairs. The roofing repairs were completed prior to closing and the inspection was approved by the FHA as required by the contract and other lending requirements. Following a period of approximately two months from completion of the roof replacement and closing on September 11, 1991, no water leakage was observed in the house by the Beardsleys when they subsequently visited the home. At closing, the Barettas paid for and provided the Beardsleys with an ERA home warranty. The Barettas likewise reimbursed Florida Leisure the sum of $1,930.00 for roof repairs which had been advanced by Florida Leisure on behalf of the Barettas. Approximately two months after the closing, the Beardsleys experienced water leaks from the roof of their home. The Beardsleys called Florida Leisure to complain of the leaks. Initially, agents and employees of Florida Leisure contacted Bickerdike such that he could return to the house and correct the leaks. Bickerdike, in fact, made several attempts to correct the roof leaks and after further calls, Florida Leisure furnished the Beardsleys Bickerdike's beeper number which they used to directly contact Bickerdike. Respondent did not hear from the Beardsleys and considered the problem to have been resolved. On August 8, 1991, the Beardsleys contacted the Pasco County Building Department to report the leakage problem. On August 11, 1991, Joe Creech, a Pasco County Building Construction Inspector, inspected the roof and reported the roof replacement by Bickerdike and Locke as being unworkmanlike. Creech concluded that the roof needed to be torn off and corrected. Creech also determined that neither Bickerdike or Locke had a roofing contractors license and that no permit had been pulled for the job. On October 29, 1991, Respondent, after being advised of the problem, obtained a proposal from RFP Roofing Company, Inc. to replace the roof. During November 1991, Creech first met with Respondent to discuss the Beardsley's roof problem. At that meeting, Respondent advised Creech that he had been unaware until then that Bickerdike was unlicensed. On November 19, 1991, Al Shevy, an inspector and investigator with Petitioner, first met with Respondent in connection with the Beardsley complaint filed on October 8, 1991. At that meeting, Respondent advised Shevy that he thought that Bickerdike was responsible for the roofing problems experienced by the Beardsleys and that Bickerdike never advised him that he had gotten someone else to do the roof replacement. Respondent's proposal from RFP Roofing Company, Inc., predates his meeting with Creech and Shevy. Respondent contracted with RFP Roofing Company to have the roof replaced and other repairs done related to interior water damage and drywall for a cost of approximately $5,000.00. Respondent corrected, at his expense, the roof leak problems as soon as he realized that Bickerdike would not or could not correct the problems. The Beardsleys, although provided with an ERA home warranty, never reported their roof problems to the home warranty claims division for repairs.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that: Petitioner enter a Final Order dismissing the Administrative Complaint filed herein in its entirety. DONE and ORDERED this 31st day of March, 1993, in Tallahassee, Leon County, Florida. JAMES E. BRADWELL Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 31st day of March, 1993. APPENDIX Rulings on Petitioner's Proposed Findings of Fact: Paragraph 3, rejected, not probative and unnecessary. Paragraph 6, rejected, unnecessary. Paragraph 8, rejected, irrelevant and unnecessary. Paragraph 10, adopted as modified, Paragraph 5, Recommended Order. Paragraph 13, rejected, not probative. Paragraph 15 first sentence, rejected, irrelevant. Paragraph 17, adopted as modified, Paragraphs 15 and 16, Recommended Order. Paragraph 18, adopted as modified, Paragraph 23, Recommended Order. Last sentence, rejected as being irrelevant. Paragraph 20, adopted as modified, Paragraph 16, Recommended Order. Paragraph 22, adopted as modified, Paragraphs 20-22, Recommended Order. Paragraphs 25 and 26, rejected, not probative. Paragraph 27, rejected, speculative. Paragraph 35, adopted as modified, Paragraphs 17 and 21, Recommended Order. Paragraph 36(sic) second 35 and 36, rejected, irrelevant and not probative. Paragraph 39, adopted as modified, Paragraph 17, Recommended Order. Paragraph 40, rejected, irrelevant. Paragraph 41, rejected, irrelevant. Paragraphs 45-49, adopted as modified, Paragraph 7, Recommended Order. Paragraph 50, rejected, not probative. Paragraph 51-54, rejected, not probative. Rulings on Respondent's Proposed Findings of Fact: Paragraph 5, adopted as modified, Paragraph 17, Recommended Order. Paragraph 11, adopted as modified, Paragraphs 12 and 13, Recommended Order. Paragraph 15, adopted as modified, Paragraph 16, Recommended Order. Paragraph 24, rejected, not probative. Paragraph 27, rejected, unnecessary. COPIES FURNISHED: Janine B. Myrick, Esquire Senior Attorney DPR - Division of Real Estate 400 West Robinson Street Post Office Box 1900 Orlando, Florida 32802 Jacob I. Reiber, Esquire LINSKY & REIBER Post Office Box 7055 Wesley Chapel, Florida 33543 Darlene F. Keller, Executive Director Florida Real Estate Commission 400 West Robinson Street Post Office Box 1900 Orlando, Florida 32802 Jack McRay, Esquire General Counsel Department of Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399 0792
The Issue Whether Respondent violated Subsection 489.129(1)(j), Florida Statutes (1997), and Subsections 489.129(1)(n) and (o), Florida Statutes (1995).
Findings Of Fact At all times material to this proceeding, Frazier was licensed by the Department as a certified roofing contractor, having been issued license number CC CO56955 as Ronald Lee Frazier, d/b/a Frazier Urethane 4 No Leak. On or about November 24, 1995, Frazier, contracted with Victor and Janie Anderson to remove and replace the roof of the Anderson's home at 433 111th Street, Marathon, Florida, for $4,657.25. The Andersons paid the full contract price to Frazier in two increments. On or about November 24, 1995, they paid $2,328.62, and on or about January 25, 1996, they paid $2,328.63. In January 1996, Frazier removed and replaced the Anderson's roof, but Frazier applied the new roofing material without first installing a base sheet or moisture barrier. No evidence was presented on the specific manufacturer's specification for the product installed by Frazier; however, the evidence did establish that typical manufacturers' specifications for products such as urethane require the installation of a base sheet before such products are applied. The Monroe County Building Code does require that self-adhesive roofs such as the one installed by Frazier must have a one ply ASTM D226 type II anchor sheet with a four-inch headlap. In other words, the roof should have a base sheet of 30-pound felt before the urethane is applied. The base sheet or moisture barrier helps keep water off the roof, and it also facilitates removal and replacement of the roof. Failure to install the base sheet contributed to the development of roof leaks which the Andersons began noticing approximately 17 months after the work was done, a much shorter time than the normal life expectancy for the urethane roof materials that Frazier used. Frazier's failure to install a base sheet on the Andersons' roof constitutes incompetency in the practice of contracting. The only way to correct Frazier's work on the Anderson's roof is to remove the roof installed by Frazier and install a new roof in a proper manner. The Andersons began noticing leaks in the roof in June 1997. They notified Frazier by telephone and by letters. Frazier and his employees inspected the Anderson's roof and agreed to perform work to stop the leaks. In September 1997, Frazier went to the Anderson's home and began attempting to work on the roof. Monroe County roofing inspector Al Forrest met with Frazier that day at the Anderson's home and discussed the work that needed to be done. Frazier agreed to correct the deficiencies in the roof; however, Frazier left that day without completing the work and never returned to perform further work. On or about December 1, 1995, Vivian Haverly contracted with Frazier to repair the leaky roof on her home at 1711 Avalon Avenue, Ft. Pierce, Florida. Frazier was to install a new urethane roof on Ms. Haverly's house. Among other things, the contract called for Frazier to "raise the A/C unit on stand as per code." The contract price was $5,039.00. Pursuant to the contract, Ms. Haverly paid Frazier $1,039.00 on December 1, 1995, and $3,900 on January 19, 1996. The Southern Building Code Congress International (SBCCI) has been adopted as the building code by all counties in Florida except for Dade and Broward Counties. Section 1509.1.2 of the SBCCI provides that "[r]oof coverings shall provide weather protection for the building at the roof." Frazier's crew worked on Ms. Haverly's roof but never fixed the leaks. The leaks worsened, causing damage in the interior of Ms. Haverly's house. Frazier failed to raise the roof-mounted air conditioning equipment and sprayed urethane on the air conditioning unit, damaging it to the point that the air conditioner became inoperable and had to be replaced at a cost of $2,700. Frazier did not spray urethane on the portion of the roof below the air conditioning unit as he should have done. Ms. Haverly had to have another company repair her roof. On or about April 18, 1997, John Ward entered into a contract with Frazier as Frazier Urethane 4 No Leak to repair the roof of a two-story building in Marathon, Florida, owned by Virginia Ward and managed for her by her son John Ward. Frazier was to apply a urethane coating to the roof and fix roof leaks for $4,200. The Department incurred costs for the investigation and prosecution of Case Nos. 98-5213 and 99-2186 in the amount of $1,219.18. The Department incurred costs for the investigation and prosecution of Case No. 99-3573 in the amount of $244.65.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered finding that Ronald Lee Frazier did not violate Subsections 489.119(2) and 489.129(1)(j), Florida Statutes, as set forth in Count III of Case No. 98-5212; finding that Ronald Lee Frazier did violate Subsection 489.129(1)(n), Florida Statutes (1995), as set forth in Count III of Case Nos. 98-5213 and 99-2186 and Count II of Case No. 99-3573; finding that Ronald Lee Frazier did violate Subsection 489.129(1)(o), Florida Statutes, as set forth in Count III of Case No. 99-3573; imposing an administrative fine of $1,000 for violation of Subsection 489.129(1)(n), Florida Statutes, in Count III of Case Nos. 98-5213 and 99-2186; imposing an administrative fine of $1,000 for violation of Subsection 489.129(1)(n), Florida Statutes, in Count II of Case No. 99-3573; imposing an administrative fine of $1,500.00 for violation of Subsection 489.129(1)(o), Florida Statutes, in Count III of Case No. 99-3573; suspending Ronald Lee Frazier's license for six months; assessing costs of $1,463.83 for investigation and prosecution in Case Nos. 98-5213, 99-2186, and 99-3573; and taking no action to enforce or collect payment of the fines or assessed costs without authorization of the bankruptcy court unless Ronald Lee Frazier's bankruptcy petition is dismissed or discharged. DONE AND ENTERED this 30th day of August, 2000, in Tallahassee, Leon County, Florida. Susan B. Kirkland 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 30th day of August, 2000. COPIES FURNISHED: Theodore R. Gay, Esquire Department of Business and Professional Regulation 401 Northwest Second Avenue Suite N-607 Miami, Florida 33128 Ronald Lee Frazier Post Office Box 12735 Ft. Pierce, Florida 34979-2735 Ronald Lee Frazier 1006 Southwest Sultan Drive Port St. Lucie, Florida 34983 Barbara D. Auger, General Counsel Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792 Rodney L. Hurst, Executive Director Construction Industry Licensing Board 7960 Arlington Expressway, Suite 300 Jacksonville, Florida 32211-7467
