The Issue The issue for determination is whether Respondent, licensed as a registered roofing contractor, certified roofing contractor, and certified building contractor, committed various violations of Chapter 489, Florida Statutes, sufficient to justify the imposition of disciplinary sanctions against his licenses.
Findings Of Fact Respondent is Joseph H. Rayl, holder, at all times pertinent to these proceedings, of registered roofing contractor license no. RC 0034055; certified roofing contractor license no. CC C035625; and certified building contractor license no. CB C033206. Petitioner previously disciplined Respondent's license RC 0034055 through the imposition of a $250 fine by order dated July 11, 1985; and Respondent's license CB C033206 by suspension of license for six months and imposition of a fine of $2,500. Petitioner also found probable cause for three cases in 1987 that were closed with letters of guidance to Respondent. Petitioner is the Department of Professional Regulation, Construction Industry Licensing Board, the state agency charged with the regulation of contractors in the State of Florida. Respondent was the qualifying agent for Unique Construction, Inc., (Unique) at all times pertinent to these proceedings. Further, Respondent has been the qualifying agent for Superior Roofing & Construction Inc., (Superior) since February, 1988. On June 19, 1984, Mary Lois Brining, owner of a day care center for children known as Town and Country Schools of Bradenton in Manatee County, Florida, entered into a contract with Respondent to reroof the day care center. Respondent's personnel arrived at the school and removed the roof. Heavy rainfall then caused extensive damage to the interior of the facility and Brining complained to Unique. A representative of the company assured her that the situation would be resolved. Brining later paid Unique $623 to paint the school's interior, in addition to the cost of the roof replacement. While Respondent was never present during the construction, his workmen finished the roofing project on June 26, 1984. When leaks to the roof developed after completion of the job, Brining advised Unique of the leakage on numerous occasions. No action was taken by Respondent or Unique in response to Brining's telephone calls about the roof's leakage. Water leakage also damaged the carpet in Brining's facility, which she replaced at a cost of $2,000. In 1988, Brining finally hired another roofing company to correct the roof leakage. Helen M. Hayes, a resident of Gulfport, Florida, contracted with Unique to reroof the flat portion of the roof to her home on April 12, 1984, for a sum of $2,890. The job was finished on April 15, 1984. Two days later, the roof leaked. Hayes advised Unique and a representative came to the house and attempted to stop the leaks. After every rain, the roof leaked and Hayes would advise Unique. She never saw or spoke with Respondent. Finally, after 22 contacts with the company over a period of two and a half years, Hayes contacted local government building authorities. The building inspector for the City of Gulfport inspected the roof and told the company to replace it. Unique's workmen removed the roof in July, 1986, and left the house uncovered. That same day 10 inches of rain fell in the area of the residence, resulting in extensive damage to the home's interior and clothing which Hayes had stored in the home. Hayes called the police. The police called the building inspector who, in turn, called the roofing company. On July 28, 1986, Unique completed replacing the roof on Hayes' house. That new roof still leaks, the floor to the house is cracked from the leakage, the carpet has been saturated with water, plaster from the ceiling is falling to the floor, and there are water stains on the ceiling and walls throughout the residence. The proof further establishes that the City of Gulfport, located in Pinellas County, Florida, retained a private contractor to conduct an inspection of Hayes' roofing job in July of 1986. That inspection established that the roof should be replaced with a roof complying with building code requirements. Notably, while Unique obtained permits for the job, no final inspection of the project was ever obtained by Respondent's company in accordance with the Southern Building Code adopted as an ordinance by the City of Gulfport. James Oliver Prince is a resident of Lake Hthchineha, a settlement located in Polk County, Florida. He has never met Respondent. Prince entered into a contract with Unique in September of 1985. The reroofing job was completed on or about September 26, 1985. Leaks developed with the onset of the first rain after the completion of the job. Prince notified Unique and a representative came out to the residence to attempt to repair the roof and stop the leaks. This procedure continued on numerous occasions until November of 1987 when Prince attempted to contact Unique regarding the roof's leakage only to be informed that the telephone had been disconnected. Prince tried to locate Unique at the various offices listed on his contract, but received no answer. Eventually, due to the seriousness of the leaks and his inability to contact Unique, Prince hired a carpenter and replaced the roof at a cost of approximately $6,000. As established by testimony of Charles Fant, fire chief and building official for the City of Treasure Island, Florida, Unique obtained a construction permit for a reroofing job for the home of Vincent Ferraro located at 62 North Dolphin Drive in that city. The city has adopted the Southern Building Code as a city ordinance. However, the company never obtained the required final inspection for that job as required by the building code. On August 13, 1986, Carl and Ludie Buice of Bellview, Florida entered into a contract with Unique for a reroofing job on their home. Carl Buice passed away in November of 1986 Later, their son assisted Ms. Buice when leaks developed in the roof by attempting to contact the roofing company. The son, Alfred Buice, was unable to contact Unique. He then contacted the local offices of the Better Business Bureau; thereafter a representative of Superior, Respondent's successor company to Unique, came to the Buice residence on or about May 25, 1988, and gave Alfred Buice a check for $200 in connection with money previously spent by Buice to repair leaks to the roof. Even after repairs, the roof continued to leak to the point that it began to cave in around the roof's edges. Eventually, Alfred Buice had his mother's residence reroofed by another contractor on March 21, 1989, for $5,800. Testimony of Petitioner's expert witness establishes that Respondent was grossly negligent in meeting his qualifying agent responsibilities to supervise financial activities and construction practices of Unique. Further, Respondent's subordinates, who actually carried out roofing activities, performed those tasks incompetently. Respondent failed to comply with existing construction industry practices to inspect jobs where successive complaints were lodged by customers.
Recommendation Based on the foregoing, it is hereby RECOMMENDED that a Final Order be entered revoking Respondent's licenses as a registered roofing contractor, certified roofing contractor, and certified building contractor. DONE AND ENTERED this 7th day of July, 1989, in Tallahassee, Leon County. Florida. DON W. DAVIS Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 7th day of July, 1989. APPENDIX The following constitutes my specific rulings, in accordance with Section 120.59, Florida Statutes, on findings of fact submitted by the parties. Petitioner's Proposed Findings. 1.-42. Addressed. Respondent's Proposed Findings. None submitted. COPIES FURNISHED: Elizabeth R. Alsobrook, Esquire Department of Professional Regulation The Northwood Centre, Suite 60 1940 N. Monroe St. Tallahassee, Florida 32399-0750 William E. Whitlock, III, Esquire 320 West Park Avenue Tallahassee, Florida 32301 Fred Seely, Executive Director Construction Industry Licensing Board Department of Professional Regulation Post Office Box 2 Jacksonville, Florida 32201 Kenneth E. Easley, Esquire Department of Professional Regulation The Northwood Centre, Suite 60 1940 N. Monroe St. Tallahassee, Florida 32399-0750
Findings Of Fact 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
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 issue for consideration was whether Respondent's license as a registered roofing contractor should be disciplined because of the misconduct alleged in the Administrative Complaint filed herein.
Findings Of Fact At all times pertinent to the issues contained herein, Respondent, Bruce D. Gayton, was licensed as a roofing contractor in Florida under license number RC0030867, but at the time of the misconduct alleged herein, the license was delinquent and invalid. Respondent's license was placed on delinquent status for non-renewal when it expired on June 30, 1987 and was considered invalid until reinstated in April, 1988. The Petitioner, Construction Industry Licensing Board, (Board), is the state agency responsible for the licensing of contractors in this state. On August 27, 1987, John M. Mack and his wife contracted with Respondent, doing business as Roofing Enterprises, to replace the roof on their 70 year old house in Clearwater. The contract called for Respondent to remove the old roof, replace all rotten wood, and install fiberglass shingles as well as all other actions part thereof, including cleanup. For this, the Macks agreed to pay Respondent $2,930.00 to be paid one- third at commencement, one-third when dried in, and the balance due upon completion. The term "dried in" means to cover the roof base with felt and secure it so as to prevent moisture incursion. This constitutes the subsurface for the final roof surface. The contract did not provide a completion date. Respondent guaranteed his work for five years. Respondent started work on September 9, 1989 and was paid the first $1,000.00 by check. He started tearing off the existing roof and five days later, when only one quarter of the existing roof had been removed, requested the second installment of the contract price. Mr. Mack was out of town at the time, but Mrs. Mack gave him a second $1,000.00 check. At that time, far less than one third of the project had been completed. After that second payment was made, Respondent did "minimal work" on the project. He would appear at the job only intermittently and when he did, would leave after only a short while. When Mr. Mack asked about this, Respondent indicated it was too hot to work after 11:00 in the morning. He also complained that because the sub-roof was made of hard, old white pine, it was very difficult to remove the old nails. For several days in early November, 1987, Respondent did not show up for work and Mack's efforts to reach him by phone were unsuccessful. He finally filed a complaint with both the Better Business Bureau and the Department of Professional Regulation. Finally, on November 14, 1987, Respondent came to the work site and left after two hours indicating he had a meeting with other contractors on other jobs. The next day, when Respondent did not show up, Mr. Mack went to his house whereupon Respondent stated he had spent most of the $2,000.00 the Macks had given him on other projects and to pay his workers and did not have enough funds to finish the job. Mr. Archer, the only employee to work on the Mack property has not been paid at all for his work. Nonetheless, Mr. Mack instructed Respondent to do what he could with what was left and when that was gone, he would pay the balance. Though Respondent had previously indicated to Mr. Mack that he had secured all required permits, the day after the above discussion, he stated he had not done so and left the job site to get it without doing any work that day. Over the next 11 days, Respondent spent a total of 20 hours on the job. On November 17, 1987 it rained and because the roof was not secure, water leaked into the house. The following day, Respondent did not arrive for work until 10:00 AM. On November 19, 1987, when Mr. Mack called the lumber yard from which Respondent had ordered the shingles, he was told they were scheduled for delivery COD and were on their way. When they arrived, Mr. Mack refused to accept them and pay for them because he had already paid Respondent $2,000. Respondent, when told of this development, agreed to borrow the money for them from his brother but was unable to do so, and in order to get the job finally done, Mr. Mack agreed to pay approximately $200.00 for them. They were ultimately delivered. The next day, Respondent telephoned Mr. Mack and said he was coming to the site and would stay until the job was done. However, he did not get there until after 10 and left at 3:30 PM with the job incomplete. At 8:00 AM the following morning, Respondent again called Mr. Mack and reported he did not have enough money for the required flashings. He indicated he would come to work and finish up the shingling, but did not show up at all that day. On the day after, Respondent came with his wife who worked with him for a short while. On this occasion, Mack gave Respondent some more money for supplies, but Respondent left again before the job was complete. Respondent neither showed up for work nor called on both the next two days, but on the following day, November 25, 1987, he finally finished up the job except for the gravel roof on the rear house and the front part of the main house. Because the Macks had a tenant in the rear house who they did not want disturbed, they did not permit Respondent to work there, but he did finally finish up the front of the main house roof and the work that was accomplished was done satisfactorily. There was, however, an unused chimney on the main house which Respondent should have removed and roofed over. Instead, he improperly attempted to roof around it and since he was unable to make the area water tight, it resulted in severe leakage into the house which caused damage to several ceilings and some furniture. Throughout the entire course of the work, Respondent applied improper pressure to the Macks. He repeatedly threatened to file for bankruptcy and not complete the work, prompting the Macks to pay him before contractually called for. At the time for final payment, when Mr. Mack indicated he wanted to have the job checked before making that last payment, Respondent became angry and walked off. He has not been seen or heard from since. As a result of Respondent's failure to properly manage his funds and accomplish the job in a timely and professional manner, the Macks have sustained substantial damage to their property and have had to expend additional funds to get the work done properly. Respondent should have identified the unused chimney at the time he bid for the job and provided for its removal. If this would cost more, he should have so indicated. His failure to identify the problem and correct it constitutes negligence since it is impossible to properly roof around such an obstruction without leaks. Based on the information available to him, Mr. Verse, the Department's expert, concluded Respondent was guilty of gross negligence because: He was required to get a permit for this project and failed to do so, He was required to request inspections of the project as it progressed and failed to do so, He took an unreasonable amount of time to complete the job, (roofs are usually replaced in an expedient manner because re-roofing generates exposure of the house and contents to weather conditions), He failed to properly place the felt and thereafter cover it with the final coat in a timely manner (qualified roofers recognize that felt is insufficient roofing to prevent leaking), He diverted funds from this project to others for which they were not intended, He failed to properly supervise his employees, He did not complete the work called for under the contract, He failed to honor his warranty, and He failed to properly remove the old chimney as a part of the re-roofing process. With the exception of the failure to complete the job which was caused by Mr. Mack's refusal to allow Respondent to complete the roofing project on the gravel roof, Respondent's actions as outlined herein constituted gross negligence. In addition, he violated existing local law by failing to get a permit and have the required inspections made; he failed to perform in a timely manner; he diverted funds; he abandoned the job without it being completed; and he failed to honor his warranty.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is, therefore: RECOMMENDED that Respondent, Bruce D. Gayton's, license as a registered roofing contractor be suspended for three years under such provisions for reinstatement as may be deemed appropriate by the Board, and that he be fined $1,000.00. RECOMMENDED this 11th day of August, 1989 at Tallahassee, Florida. ARNOLD H. POLLOCK Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 11th day of August, 1989. COPIES FURNISHED: Elizabeth R. Alsobrook, Esquire Department of Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792 Bruce D. Gayton 15010 113th Avenue #32 Largo, Florida 34644-4305 Fred Seely Executive Director Construction Industry Licensing Board Post Office Box 2 Jacksonville, Florida 32201 Kenneth A. Easley, Esquire General Counsel DPR 1940 North Monroe Street Tallahassee, Florida 32399-0792 =================================================================
The Issue Whether Respondent committed the offenses alleged in the Administrative Complaint and the penalties, if any, that should be imposed.
Findings Of Fact Petitioner is a licensing and regulatory agency of the State of Florida charged with the responsibility and duty to prosecute administrative complaints pursuant to Chapters 455 and 489, Florida Statutes. At all times pertinent to this proceeding, Respondent was licensed as a certified building contractor and a certified roofing contractor, having been issued license numbers CC C027427 and CB C023123. At all times pertinent to this proceeding, MCI was a corporation engaged in roofing contracting, and Respondent was its qualifying agent. A re-roofing job by MCI on the shared roof of two townhouses located at 105 and 106 Woodland Road, the Village of Palm Springs, Florida (the Village), is at issue in this proceeding. These two townhouses are part of a building consisting of four townhouses. All four townhouses have a shared roof. Essentially, the work by MCI was to re-roof half of the entire roof. At the times material to this proceeding Lawrence Gauer owned the townhouse at 105 Woodland Road (Gauer townhouse) and RCM owned the townhouse at 106 Woodland Road (RCM townhouse). Both townhouses are within the permitting jurisdiction of the Village. Mr. Malt, Respondent's brother, owns RCM. Mr. Malt is a certified general contractor, developer, and real estate broker. Mr. Malt has extensive experience building townhouses, having built over 4,000 dwelling units, including the townhouses where the work at issue in this proceeding occurred. Mr. Malt also owns the company that manufactured the engineered pre-stressed concrete structural members that served as the foundation for the roof at issue in this proceeding. Mr. Malt is not a licensed roofing contractor, and his general contractor’s license does not authorize him to perform roofing work. In the fall of 1998, Mr. Malt determined that the RCM townhouse should be re-roofed. Mr. Malt contacted the owners of the other three townhouses to determine whether they wanted to re-roof their portions of the shared roof. Mr. Gauer decided to have his part of the shared roof re-roofed with Mr. Malt, but the owners of the other two townhouses declined. At all times material to this proceeding, Respondent authorized Mr. Malt to act as an agent for MCI. On January 7, 1999, MCI contracted with Mr. Gauer and with RCM to perform the work at issue in this proceeding. Mr. Gauer signed the contract in his capacity as owner of his townhouse. Mr. Malt signed the contract on behalf of RCM as owner of its townhouse. Mr. Malt also signed the contract on behalf of MCI in his capacity as its agent. The total amount of the contract was $5,000, with each owner (Mr. Gauer and RCM) being responsible for payment of $2,500. The contract required each owner to pay $1,250 upon execution of the contract with the balance due within five days ". . . of completion (inspection by the Village . . .)". On or about January 7, 1999, Mr. Gauer paid $1,850 to MCI. There was no explanation as to why Mr. Gauer paid more than the contract required on that date. Respondent's license number did not appear in the contract, and the contract did not contain a written statement explaining the rights of consumers under the Construction Industries Recovery Fund. On January 13, 1999, Mr. Malt, as agent for MCI, applied to the Village for the requisite building permits for the subject work. On January 13, 1999, the Village issued two separate permits, one for each townhouse, authorizing the re- roofing work contemplated by the subject contract. Each permit reflected that the valuation of the work was $2,500. Consistent with the applicable building code, the Village's building department issued a notice with each permit that because the roof was flat, the roof had to provide positive drainage to prevent the ponding of water or the roof had to be constructed of specific water retaining material. Mr. Malt, as agent for MCI, hired the crew that performed the roofing work at issue in this proceeding. At all times material to this proceeding, Mr. Malt supervised the roofing crew that worked on the two townhouses. Prior to beginning work on the roof, Mr. Malt checked weather forecasts for the area. On January 13, 1999, the roofing crew removed the existing roofing material from the roof. At the end of the workday, the crew covered the exposed roof with plastic sheeting commonly referred to as Visqueen. For a flat roof, the accepted standard in the roofing industry is to remove only as much roofing material as can be replaced with finished roofing material the same day. A plastic sheeting such as Visqueen is inadequate to protect an exposed flat roof from a heavy rainfall. The failure to adequately protect the exposed roof on January 13, 1999, constituted negligence. On the night of January 13, 1999, an unexpected heavy rainfall event occurred. As a consequence of the rainfall and the inadequately protected roof, substantial amounts of rainfall intruded in both townhouses, causing extensive damage. The work crew spent most of January 14, 1999, cleaning up following the rain event the previous day. As of Friday, January 15, 1999, the roof was still exposed. On that date, MCI installed a base coat of hot asphalt and insulation, which was inadequate to waterproof the flat roof. At the end of the workday, the roofing crew covered the roof with Visqueen and left for the weekend. On January 16, 1999, additional heavy rains occurred. Again, as a consequence of the rainfall and the inadequately protected roof, substantial amounts of rainfall intruded in both townhouses, causing additional damage to both townhouses. The failure to adequately protect the exposed roof constituted negligence. Mr. Gauer's homeowner's insurance company paid his policy limits for emergency services and repairs to his townhouse. The repairs were completed on or about February 19, 1999. Mr. Gauer subrogated his rights against MCI to his insurance company. There was a civil action pending by the insurance company against MCI at the time of the final hearing based on the subrogation rights. Mr. Gauer's homeowner's insurance did not cover damages to his or Mr. Poitivent's personal property. The value of those losses was not established. During the week beginning January 18, 1999, MCI installed new roofing material on the roof. In doing so, the roofing crew covered the clothes dryer vent for each townhouse with roofing material. As a result, Mr. Gauer's clothes dryer did not vent properly, and he paid an independent contractor $250.00 to inspect and clean out the dryer vent. MCI promptly corrected the deficient work after Mr. Gauer told Mr. Malt that his dryer vent had been covered during the re-roofing. The accepted standard in the roofing industry is that roof vents are not to be covered over without some specific instruction to do so. MCI's failure to adhere to that standard constituted negligence. MCI asserted that it completed the roofing work in 1999. At the times pertinent to this proceeding, Craig Johns was a building inspector for the Village. Mr. Johns inspected the subject roof on the following dates in 1999: June 15, July 15, August 12, and August 30. Following each inspection, Mr. Johns found that the roof did not pass inspection. Among other deficiencies, Mr. Johns found that the roof did not provide positive drainage, which was required for a flat roof covered in asphalt. 2/ As of the final hearing, MCI had not obtained a passing final inspection from the Village's building department. Mr. Malt established that Respondent had just cause to believe that MCI had completed all work on the project in 1999. Consequently, Respondent is not guilty of abandoning the work within the meaning of Section 489.129(1)(k), Florida Statutes (1997). As of June 15, 2001, Petitioner's costs of investigation and prosecution in this case, excluding costs associated with attorney's time, totaled $794.23. 3/
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 the violations alleged in Counts I, II, V, and VI of the Administrative Complaint. The recommended penalty for the violation alleged in Count I is an administrative fine in the amount of $100. The recommended penalty for the violation alleged in Count II is an administrative fine in the amount of $100. The recommended penalty for the violation alleged in Count V is an administrative fine in the amount of $500. The recommended penalty for the violation alleged in Count VI is an administrative fine in the amount of $500. It is further recommended that the final order require Respondent to pay Mr. Gauer restitution in the amount of $250. It is further recommended that the final order require Respondent to pay investigative costs in the amount of $794.23. DONE AND ENTERED this 5th day of November, 2001, in Tallahassee, Leon County, Florida. CLAUDE B. ARRINGTON 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 5th day of November, 2001.
The Issue The issues to be resolved in this case are those promoted by the second amended administrative complaint brought by the State of Florida, Department of Professional Regulation against the Respondent, David W. Crosby. Briefly, the basic allegations are that the Respondent granted to James Crosby, d/b/a U.S. Seamless Roof Systems, the unlimited opportunity to obtain building permits under the Respondent's contracting license. This arrangement, it is alleged, was in the face of a circumstance in which James Crosby was not registered, certified, or otherwise licensed by the Construction Industry Licensing Board, nor had the Respondent qualified U.S. Seamless Roof Systems with the Construction Industry Licensing Board. It is further alleged that between August 1982 and in or about 1985 James Crosby operated a roofing contracting business in St. Johns County, Florida, and in St. Augustine, Florida, and utilized the Respondent's authorization to obtain certain building permits and that James Crosby then performed roofing work authorized by those permits. By reason of this arrangement Respondent is said to have violated Sections 489.119 and 489.129(1)(e) (f) (g) (j) and (m), Florida Statutes. There are additional allegations of similar nature pertaining to work in Brooksville and Inverness, Florida.
Findings Of Fact Facts found based upon responses to requests for admissions propounded from Petitioner to the Respondent (see Petitioner's Exhibit 1 admitted into evidence) Respondent's name is David W. Crosby. Respondent is a certified roofing contractor in the State of Florida having been issued license number CC CO 15442. At all times material to the pending Administrative Complaint, Respondent was a certified roofing contractor in the State of Florida having been issued license number CC CO 15442. Respondent's license number CC CO 145442 is active for the period expiring June 30, 1987. In or about August 1982, Respondent issued an unlimited authorization, addressed "To whom It May Concern," which authorized all building departments to issue roofing permits to Respondent's brother, James Crosby. Said James Crosby was operating a roofing business in the period 1982 to 1985, in and about the St. Johns County and St. Augustine area. On or about January 13, 1983, said James Crosby, d/b/a U.S. Seamless Roofing Systems obtained permit number 12102 from the City of St. Augustine. Said permit, number 12102, was obtained to repair a roof for Zorayda Castle of 83 King Street, St. Augustine, Florida. On or about February 3, 1983, said James Crosby, d/b/a U.S. Seamless Roofing Systems, obtained permit number 12122 from the City of St. Augustine. Said permit, number 12122, was obtained to reroof the residence of Zorayda Castle of 83 Ring Street, St. Augustine, Florida. On or about February 24, 1983, said James Crosby, d/b/a U.S. Seamless Roofing Systems, obtained permit number 12158 from the City of St. Augustine. Said permit, number 12158, was obtained to reroof the residence of Lillian Perpall of 67 Abbott Street, St. Augustine, Florida. On or about May 17, 1983, said James Crosby, d/b/a U.S. Seamless Roofing Systems, obtained permit number 12288 from the City of St. Augustine. Said permit, number 12288, was obtained to reroof the residence of Emily M. Alexander of 20 Cuna Street, St. Augustine, Florida. On or about May 2, 1983, said James Crosby, d/b/a U.S. Seamless Roofing Systems, contracted with Lawrence Golden to repair the roof at Golden's residence at 17 Bay View Drive, St. Augustine, Florida, for a contract price of $985. On or about March 28, 1984, said James Crosby, d/b/a U.S. Seamless Roofing Systems, used contractors license number CC CO 15442 to obtain permit number 3781-81 from St. Johns County Florida. Said permit, number 3781-81, was obtained to reroof the residence of Burton Chase of St. Johns County, Florida. On or about March 28, 1984, said James Crosby, d/b/a U.S. Seamless Roofing Systems, used contractors license number CC CO 15442 to obtain permit number 3780-81 from St. Johns County, Florida. Said permit, number 3780-81, was obtained to reroof the residence of Fred Jensen of St. Johns County, Florida. On or about May 7, 1984, said James Crosby, d/b/a U.S. Seamless Roofing Systems, contracted with Ceal Butler to repair Butler's roof on his residence at Rt. 3, Box 56W3, St. Augustine, Florida, for the contract price of $1,335. Said contract referenced in number 20 above, was executed on a printed form bearing contractors license number CC CO 15442. At no time relevant hereto did Respondent qualify the roofing business, American Roof and Waterproofing Company and/or American Roofing and Waterproofing Company. Facts found based upon testimony at final hearing and exhibits admitted at final hearing James Crosby is also known as James A. Crosby, Jr., and Jim Crosby. On May 17, 1982, James A. Crosby, Jr., who held registered roofing contracting license number RC 0029375, voluntarily relinquished that license in Department of Professional Regulation, Construction Industry Licensing Board v. James A. Crosby, Jr., DPR Case No. 006237. On June 30, 1987, the Construction Industry Licensing Board, in accordance with that voluntary relinquishment, entered a final order approving and accepting the relinquishment. See Petitioner's composite Exhibit 3. James Crosby, in those instances described in the fact finding related to roofing contracting activities, was unlicensed and therefore not authorized to practice contracting, to include roofing contracting. See Petitioner's Exhibit 4 admitted into evidence, a February 7, 1986, notice to cease and desist in the case of State of Florida, Department of Professional Regulation vs. James Crosby, DPR Case No. 62490, in which it is indicated that James Crosby does not hold the necessary license to do roofing work or other forms of contracting contemplated by Chapter 489, Florida Statutes. Petitioner's Exhibit 5 is a copy of the general authorization which Respondent directed "To Whom It May Concern" in August 1982 authorizing James Crosby ". . . to pull permits for all roof work done by U.S. Seamless Roof Systems, St. Augustine, Florida." A copy of Respondent's certified roofing contractors license was attached to this authorization. This authorization has never been withdrawn and still remains on file with the City of St. Augustine, Florida, Building Department. At all relevant times related to the second amended administrative complaint, the City of St. Augustine, Florida, by ordinance, had adopted the Southern Building Code, which required building permits to be issued by the City before James Crosby or the companies under whose name he was doing business could undertake the various projects that are contemplated by the second amended administrative complaint. In January 1983, James Crosby entered into a contract with Wallace Mussallem for the roof repair in a tourist attraction in downtown St. Augustine, Florida, known as Zorayda Castle. Price of the repairs was approximately $6500. Petitioner's composite Exhibit 6 admitted into evidence pertains to various building permit applications and for certificate of appropriateness which James Crosby filed related to the Mussallem job. Crosby was operating under the name U.S. Seamless Roofing Co. as depicted in the aforementioned composite exhibit. Crosby completed the job and was paid the full amount of the contract. Crosby warranted his repair work for a period of ten years. During the initial two years, the roof did not leak; however, in 1986 a number of leaks occurred in the roof. Mussallem was unable to locate James Crosby to fix the roof and Mussallem had another roofer effect repairs and spent $3000 to have one section of the roof repaired. As of the time of the hearing, when Mussallem gave his testimony, part of the roof was still leaking and needed to be fixed. Respondent was never involved in the transaction between Mussallem and James Crosby, beyond giving permission to James Crosby to pull building permits from the City of St. Augustine, Florida. On March 4, 1984, Mr. and Mrs. William Blanchard entered into a contract with James Crosby, d/b/a American Roof and Waterproofing Company. James Crosby's associate, Basil R. Boone, was the person who estimated the job; however, the contract was with James Crosby. A copy of that contract can be found as Petitioner's Exhibit 14 admitted into evidence. It calls for the repair of the roof on the Blanchards' residence in St. Augustine, Florida. On April 5, 1985, James Crosby applied for a building permit from the City of St. Augustine to do the roofing work at the Blanchard home, and on April 30, 1985, that building permit was issued. Petitioner's composite Exhibit 8 is a copy of the application for permit and the permit. The price of the contract was $1575. James Crosby was paid for the roofing work. In the course of this transaction, William Blanchard had no occasion to deal with the Respondent. On May 7, 1984, James Crosby, d/b/a U.S. Seamless Roof Systems contracted with Ceal Butler of St. Johns County, Florida, to do roof repair work on a mobile home belonging to Mr. Butler. See Petitioner's Exhibit 15 admitted into evidence. The contract price was $1335 and Crosby guaranteed the work for ten years. May l8, 1984, James Crosby, as referred to in the check written to the Butlers as "Jim Crosby," was paid the contract amount. The contract form that was utilized in the Butler case referred to the Florida certified contracting number which pertains to the Respondent. Notwithstanding this reference, Respondent did not involve himself with this project. The Butlers immediately began to experience problems with the roofing work done by James Crosby. There were leaks in the roof repair work. The Butlers made numerous requests to have James Crosby honor the warranty, but the repairs were not made. Eventually, another roofer other than James Crosby had to make the repairs on the roof. Lillian Perpall owned a home in St. Augustine, Florida, and contracted with James Crosby to do roofing repair work at her residence. A copy of the contract may be found as Petitioner's Exhibit 17 admitted into evidence. James Crosby was doing business in this instance as U.S. Seamless Roof Systems. The contract price was $4875 and the project carried a ten-year guarantee. On February 24, 1983, in furtherance of the conduct of the project, James Crosby applied for a building permit which was granted that same day. A copy of the application and building permit may be found as Petitioner's composite Exhibit James Crosby was paid the full amount of the contract price for concluding the roofing repair work. Within a year after the work had been done, there was a leak in the roof and James Crosby came and put another coat of material on the roof in response to the complaint of Ms. Perpall. In the last eight or ten months, the back porch area where roof repairs had been made began to leak. Ms. Perpall has tried to contact James Crosby about that problem and has been unable to. In particular, she tried to make contact at the telephone number listed on the contract document that was signed. On the evidence presented, it is found that the Respondent did not participate in the roofing repair work at the Perpall residence, On October 14, 1982, James Crosby, d/b/a U.S. Seamless Roof Systems contracted with Edward Carriere to perform room repair work on Carriere's residence in St. Augustine, Florida. The contract amount was $5100 and the contract included a ten-year guarantee. A copy of the contract may be found as Petitioner's Exhibit 18 admitted into evidence. This contract format bears Respondent's Florida certified contractor's number. In furtherance of this work, James Crosby applied for a building permit from the City of St. Augustine on September 28, 1982, and that permit was issued that same day. A copy of the application and permit may be found as Petitioner's composite Exhibit 11 admitted into evidence. A second building permit related to this work was issued on October 27, 1982, from the City of St. Augustine as acknowledged by James Crosby and is found as part of the Petitioner's composite Exhibit 11. From the beginning, following the work, Carriere has experienced problems with the repair work. These problems are leaks in the roof. They have caused damage in the kitchen and living room area of the Carriere home. James Crosby responded to complaints about the room leaking, but did not fix the problem. The roof leaked from 1983 to 1985. By 1985, Carriere was unable to locate James Crosby to fix the leaking roof. Being unsuccessful in locating James Crosby, Carriere hired another roofer to fix the problem in January 1986. This cost an additional amount of approximately $5800. Carriere never dealt with the Respondent in the roof repair project at his home. On May 2, 1983, Lawrence G. Golden contracted with a representative of U.S. Seamless Roof Systems, the company of James Crosby, to have roof repair work done at the Golden residence in St. Augustine, Florida. A copy of the contract entered into with the company be found as Petitioner's Exhibit 19 admitted into evidence. The contract amount was $985 and the work carried a ten-year guarantee. Lawrence Golden paid the man $985 called for by the contract. Mr. Golden had problems with the roof repair work with the advent of heavy rains, in that the roof leaked. After numerous attempts to contact the company, James Crosby came to examine the nature of the complaint. James Crosby did not fix the problems with the leaking roof or cause them to be fixed until Golden had made a complaint to the State of Florida, Department of Professional Regulation. James Crosby did not obtain a building permit for the roof repair work, nor was a building permit obtained by anyone other than James Crosby. Golden did not deal with the Respondent in the transaction involving the roof repair. On July 15, 1982, Wilbur Lane contracted with James Crosby d/b/a U.S. Seamless Roof Systems to perform roof repair work on Lane's residence in St. Johns County, Florida. The roof repair contract carried the certified roofing contractor license number associated with the Respondent. The amount of the contract price was $1300 and the work carried a ten-year guarantee. James Crosby completed the construction work and received the full payment. A copy of the contract may be found as Petitioner's Exhibit 20 admitted into evidence. Although James Crosby was paid the amount contemplated by the contract, the roof repair work was not successful. After the project was undertaken, Lane experienced leaks inside of his home and made numerous attempts to try to contact James Crosby to take care of the problem. Crosby did attempt to fix the leaks, but failed in the attempt. Eventually Mr. Lane was unable to contact Crosby to continue the effort at rectifying the problem and Mr. Lane had to complete his own repair work on the roof to stop the leaks. Lane never had occasion to deal with the Respondent in this project. 35, The Department of Professional Regulation investigator Augostino A. Lucente investigated the complaint that had been filed by Lawrence Golden and spoke with the Respondent. Respondent indicated that he did not know anything about Mr. Golden or his problem or the fact that roofing repair work had been undertaken by U.S. Seamless Roof Systems. Respondent did indicate to Lucente that James Crosby was using Respondent's certified roofing contractor's license to obtain building permits. Respondent stated that he was trying to do his brother a favor by setting up a company for him in the St. Augustine area. In actuality, James Crosby may not be the brother of Respondent and may in fact be Respondent's cousin. Respondent told Lucente that he had issued the authorization letter, Petitioner's Exhibit 5, and that he had intended to open up a business in the St. Augustine area and to put James Crosby in charge. After about six weeks, Respondent said that he determined that he did not want to do anything with the St. Augustine situation and left everything as it was. This decision came about in September 1982. Respondent also denied any knowledge of the Carriere contract. On October 22, 1986, Petitioner took action against the Respondent in DPR Case Nos. 59109 and 59115 by the entry of a final order disciplining the license which is at issue in this proceeding. A copy of that final order and the underlying administrative complaint may be found as Petitioner's Exhibit 2 admitted into evidence.
The Issue Whether Respondent committed the offenses described in the Administrative Complaint? If so, what disciplinary action should be taken against him?
Findings Of Fact Respondent is a roofing contractor licensed to practice in the State of Florida. Since January, 1982, he has been the qualifying agent for Tropical Clima-Coat Inc. (Tropical). On September 21, 1983, Tropical entered into a written contract with Bertha Guerry and her husband Joseph, in which it agreed, for $2,449.10, to perform the following roofing work on the Guerrys' residence, which was located at 2185 S.W. 38th Street in Fort Lauderdale, Florida: Remove loose gravel and dirt from existing roof surface/flat deck. Apply Tropical Clima-Coat's resin- based cement to fill holes and cracks in the roof surface. Apply acrylic primer to provide maximum adhesion for acrylic waterproofing. Apply acrylic waterproofing, creating a uniform, bonded, elastomeric, watertight surface. Apply White Acrylic Roof Finish as a durable, mildew-resistant wear barrier. The contract further provided that the Guerrys were to receive a "5 year, 100% warranty against leaks." The work specified in the contract was completed on October 31, 1983, and the Guerrys thereupon paid Tropical in full. Tropical, in turn, gave the Guerrys a written warranty signed by its Vice-President, which provided, in part, as follows: If within 5 years after Tropical Clima- Coat applies its Roof System to your roof, a leak develops because of the failure of our roofing system,* we will repair it free. * Damage excluded from warranty: Tropical Clima-Coat shall not be liable for any leaks or damage caused by riots or vandalism, termites or other insects, penetration of the roof or waterproofing system by nails; nor shall Tropical Clima-Coat be liable for leaks or damage caused by acts of God, including but not limited to: lightening, gale, hurricane, tornado, hailstorm, flood, earthquake, or unusual phenomena of the elements; nor from damage to roof due to settlement, distortion, dry rot, failure or cracking of the roof deck, walls, partitions, or foundation of the structure; nor defects or failure of materials used as a roof base, over which our waterproofing system is applied; nor by biological growth, traffic upon the roof or any similar cause. The warranty also contained the following provision prescribing the time and manner in which claims under the warranty had to be made: The owner of the roof will notify Tropical Clima-Coat immediately by certified mail, at its main office (3746 N.W. 16th Street, Ft. Lauderdale, Florida 33311) of any leaks alleged to result from causes not excluded from coverage by this warranty. Such notification must be mailed within 30 days of discovery of the need for repairs, and all correspondence must include the above Certificate Number. In June, 1986, Mrs. Guerry noticed that there was a leak in her roof above the living room. She telephoned Tropical and requested that it repair the leak in accordance with the warranty she and her husband had been given. Tropical responded promptly to Mrs. Guerry's request. It sent one of its workers to the Guerry residence and he patched the leak. Arrangements were made for the worker to return to the Guerry residence and pressure clean the roof. Pursuant to these arrangements, the worker came back to the residence and pressure cleaned the roof as he had promised. It took him two hours to complete the task. Following the pressure cleaning of the roof, Mrs. Guerry discovered that there were now leaks in the roof above the kitchen. Having made this discovery, she again telephoned Tropical and requested that it repair these newly-discovered leaks. As it had done in response to her previous telephonic request, Tropical dispatched a worker to the Guerry residence, albeit not as promptly as on the prior occasion. The worker applied black ceramic granules to the surface of the roof in an attempt to alleviate the problem. The Guerrys now had a black roof instead of the white roof for which they had contracted. Mrs. Guerry again telephoned Tropical and complained about the new color of her roof. Tropical responded by having a worker go to the Guerry residence and spray paint the roof white. The paint, however, did not adhere well to the granular material on the roof. Furthermore, Mrs. Guerry observed new leaks in the roof. On September 8, 1986, she telephoned Tropical to advise it of these recent developments. Respondent visited the Guerry residence the next day. He told Mrs. Guerry that Tropical intended to remove the granules and recoat the roof with an asphalt material imbedded with a polyester fabric for greater strength to prevent against leaks. He further assured her that, upon completion of the repair work, the roof would be white. On September 15, 1986, a crew of Tropical workers were on the Guerrys' roof with approximately 80 to 100 gallons of asphalt when a sudden, unexpected heavy rainstorm interrupted their work. The rainwater mixed with the asphalt and created "black goo," some of which fell from the roof onto the sides of the house, the porch, the driveway, the sidewalks, the grass, the bushes, and the trees. Tropical had its workers endeavor to clean up the mess that the rainstorm had created. They used mineral spirits in an attempt to remove the hardened remains of the "black goo" from the porch, the driveway and the sidewalks and swept the residue onto the grass, bushes and trees. In so doing, they contaminated the soil and killed the vegetation. Respondent was responsible for the decision to use mineral spirits in the cleanup effort. He did not realize, as he should have, that the use of this substance would result in environmental damage. The cleanup progressed slowly. Frustrated by the lack of substantial progress, Mrs. Guerry telephoned Respondent and demanded that he go to her home and do something about the situation. Respondent did not believe that his presence at the home would help matters any and he told Mrs. Guerry so. Nonetheless, on September 17, 1986, he paid his final visit to the Guerry residence. During his visit, Respondent met with Mrs. Guerry for approximately an hour and a half. Mrs. Guerry expressed to Respondent her outrage concerning the situation. Respondent recognized that Mrs. Guerry had a right to be annoyed and that Tropical needed to take action to remedy her plight. He wrote down on a piece of paper the following things that Tropical would do for the Guerrys: FIX ROOF LOOSEN SOIL W/RAKE 4. REMOVE "STICKINESS" FROM DRIVEWAY AND SIDEWALK 3. REMOVE BLACK FROM CHATTAHOOCHEE (STAINS WILL REMAIN) REMOVE "STICKINESS" FROM CHATTAHOOCHEE REMOVE STICKINESS FROM DECORATIVE WALL (STAINS WILL REMAIN) REMOVE STICKINESS FROM SIDEWALKING STONES REMOVE BLACK FROM CHAT @ BACK DOOR SOD- TO BE DETERMINED LATER Respondent indicated he would sign this document and he asked Mrs. Guerry to do the same to acknowledge their understanding and agreement as to the remedial action Tropical was to take. Mrs. Guerry refused. Nonetheless, the cleanup effort continued. Mrs. Guerry, however, did not permit Tropical to continue its repair work on the roof. Concerned about the damage that had been done to the vegetation on her property, Mrs. Guerry contacted a horticultural consultant, Robert G. Haelhle. Haelhle surveyed the property on September 18, 1986. Following his survey he wrote a letter to the Guerrys advising them of the following: On September 18, 1986, I visited the Guerry property at Mrs. Guerry's request. The landscape plantings are in real trouble due to a mineral spirits spill. Mineral spirits and water were used to clean up roofing tar that washed off the roof after a heavy rainstorm. The kerosene [sic] and water mixture washed over the lawn, around the base of a West Indian Cherry tree (very rare), an arborvitae, and a 165 foot Ixora hedge on the east and west sides of the house. The Ixora hedge is over 7 feet tall and 30 years old and would not be replaceable. The mineral spirits/water mix will poison the soil and eventually could affect the water table. All affected soil will have to be removed from the area before any new planting can be accomplished. The West Indian Cherry was starting to yellow and the grass was dying at the time of my visit. Time is of the essence to preserve the remaining plantings. The kerosene [sic]/water mix poisons the root system of the plants and does not allow for normal water penetration. I am not optimistic about the remaining plantings. I contacted Jane McCarthy of the Environmental Quality Board, tel: 765- 5881. She was to send an inspector to assess the soil damage at the site. Neither Tropical nor Respondent replaced the "plantings" that had been damaged or destroyed as a result of the cleanup effort. On September 22, 1989, Mrs. Guerry telephoned Respondent. She reiterated that she did not want any work done on the roof until she had an independent expert inspect it and provide her with guidance. That same day, Edward T. Weiner, a licensed architect hired by the Guerrys, inspected their roof. Based on his observations of the condition of the roof, it was Weiner's opinion that the repair work done by Tropical was unacceptable and that a new roof needed to be installed. He so advised the Guerrys by letter dated September 29, 1986. The Guerrys also hired an attorney, Craig W. Lekach, to furnish them legal advice and representation concerning their dealings with Tropical. On September 23, 1986, Lekach telephoned Respondent and instructed him to "get busy" with the repair work that needed to be done. The following day, Respondent telephoned Mrs. Guerry and told her that he was anxious to complete the repair work on her roof. Mrs. Guerry took the opportunity to again express her displeasure with the work Tropical had done. She also indicated that she had yet to hear from Weiner regarding his assessment of the condition of the roof. That same day, September 24, 1986, Respondent received word that a Broward County Environmental Compliance Officer had inspected the Guerrys' property and determined that mineral spirits used in the cleanup effort had contaminated soil on the property. Respondent was further informed that the excavation of the contaminated soil would remedy the situation. Having received permission from the Guerrys' attorney to proceed with the repair work, Respondent sent a crew to the Guerry residence on September 25, 1986, to vent the roof. Mrs. Guerry, however, did not allow the workers to install the vents. Another telephone conversation between Mrs. Guerry and Respondent ensued. Respondent reiterated that it was his desire to finish the work that needed to be done on the roof. Mrs. Guerry, in turn, indicated that she would not let Tropical continue its work on the roof until she had Weiner's report in hand and had the opportunity to further discuss the matter with her attorney, her son and others with whom she had consulted. The conversation ended with Respondent telling Mrs. Guerry that he would be waiting to hear from her. On September 26, 1989, Respondent wrote a letter to Attorney Lekach in which he complained that Mrs. Guerry was interfering with Tropical's efforts to make her whole. The letter read, in part, as follows: We do carry casualty insurance and I feel it may be best to supply you with the name and address of our agent and allow him to coordinate with Mrs. Guerry's homeowners agent. Truly, this situation is considered an "act of God" and I do not believe that we can adequately communicate with the customer as she is in such an excited state we now find her implacable. We would be glad to install the proper roof vents and do the final painting of her roof if she will permit us. If she will not, then we must close the file and direct her to our insurance company. This is really unfortunate! Sound roofing practices were utilized; we were careful to watch the weather and, although we had a sudden cloudburst, we did stay around to try to clean up. We have not been negligent and we have spent considerable time and money to resolve the situation. Please advise at your earliest convenience. Respondent next heard from Lekach on October 9, 1986. Later that same day, pursuant to Lekach's request, Respondent met with Lekach and discussed "the problems at the Guerry residence." The following day, Lekach sent Respondent a letter memorializing the highlights of their discussion. The letter provided, in part, as follows: You will be permitted access to the Guerry property for the following purposes: Inspection of the roof, cleaning of the yard which will include replacement of sod as necessary, replacement of topsoil as necessary, and removal of tar. The performance of the above shall neither be construed as an admission of liability on your part, nor an acceptance of this work as being satisfactory or complete. I agree, however, that it is imperative that steps be taken immediately to mitigate the damage. Further we will both be doing the following: obtain information about repair methods and costs for chattahoochee surface. obtain information about repair methods for the "staining" problem on walls and patio so that the area can be painted. review proposals for correction or replacement of roof, if necessary. There is going to have to be a certain amount of good faith between you and Mrs. Guerry if this situation is to be resolved without litigation. Accordingly, we are now permitting you access to the property in the hope that you will also attend to the other matters set forth above. Mrs. Guerry has been hesitant to accept a partial resolution of this problem without your commitment to complete all of the repairs and this is the reason that the cleanup was delayed in some respects. Hopefully, we will be able to work towards resolving all aspects of the damage. On October 11, 1986, Respondent dispatched a crew to the Guerry property to perform the excavation work that was necessary to remove the soil that had been contaminated by the mineral spirits used in the cleanup effort. On this occasion, the workers were given access to the property for this purpose and they removed and replaced the contaminated soil. On October 13, 1986, Tropical sent a crew to the Guerry property to inspect their roof. Mrs. Guerry would not permit the Tropical workers to enter the premises. She indicated that she would not allow the workers on her property to inspect or repair the roof until she had heard from all those with whom she had consulted regarding the matter. Having been denied access to the property by Mrs. Guerry, the workers left without performing their inspection. At no time thereafter did the Guerrys directly contact Tropical and request that the workers return to the residence to finish the repair of the roof. In the absence of any such direct communication from the Guerrys, Tropical did not attempt to do any further repair work on the roof after October 13, 1986. On October 6, 1986, the Broward County Environmental Quality Control Board had issued a notice of violation citing Tropical with discharg[ing] a substance (mineral spirits) to ground." A hearing on the charge was held before the Board on November 7, 1986. Respondent appeared on behalf of Tropical at the hearing. He admitted that Tropical was guilty of discharging a pollutant, to wit: mineral spirits, into the soil, although he explained that the violation was a product of ignorance on his part regarding the qualities of mineral spirits. Based on this admission of guilt, the Board imposed a $500.00 fine, which was subsequently paid by Respondent. In late 1986, the Guerrys filed with the Department of Professional Regulation a complaint against Respondent. An investigation of the complaint was conducted, following which an initial determination was made that there was "presently no probable cause to find that [Respondent] violated the contractor disciplinary statutes." Respondent was notified of this determination by letter dated May 14, 1987. This determination of no probable cause was subsequently reversed. On January 11, 1989, an administrative complaint was filed by the Department charging Respondent with wrongdoing in connection with the work performed on the Guerry home. The Guerrys no longer own the home. The property was purchased by Broward County in furtherance of the County's airport expansion project. Respondent has previously been disciplined by the Construction Industry Licensing Board. In early 1987, Respondent was fined $500.00 for failing to obtain a permit as required by local law. In March, 1988, he was fined $1,500.00 for failing to call for all required inspections. In August, 1988, he was fined $500.00 for proceeding without a required permit, failing to obtain all required inspections, failing to reasonably honor a guarantee, and displaying gross negligence, incompetence or misconduct.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that the Construction Industry Licensing Board enter a final order (1) finding Respondent guilty of gross negligence and incompetence, in violation of Section 489.129(1)(j) and (m), Florida Statutes, in connection with his supervision of the cleanup of the Guerry residence; (2) suspending Respondent's license for six months and imposing a fine of $1500 for said violation; and (3) dismissing the remaining charges against Respondent that are set forth in the instant Administrative Complaint. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 17th day of November, 1989. STUART M. LERNER Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 11th day of November, 1989.
Findings Of Fact The Respondent is a registered roofing contractor, having been issued license number RC 0020923. On may 27, 1982, the Respondent, doing business as T & T Roofing Company, contracted with Jessie Reid, 1021 Abeline Drive, Deltona, Florida, to replace an existing shingle roof for a total contract price of $2,406.20. At all times material hereto, the Respondent was registered with the Construction Industry Licensing Board as qualifying agency for A. L. Roofing Specialists. At no time has the Respondent qualified T & T Roofing Company. On August 26, 1982, when the Respondent completed work on Jessie Reid's roof, he was paid $2,406.20 which was the entire contract price for this job. The Respondent was to return to the job site to inspect the roof and correct minor remaining problems. However, when the Respondent would not return to the job, even after repeated calls, it was determined that there is a difference in shingle thickness at points on the roof, and the rain runs down over the gutters instead of into them. Further, the hip and ridge caps are of a different material than the major portion of the shingled roof; there are exposed nails; and the gutters are filled with roofing debris. The Respondent has not been responsive to communications and he has refused to make the necessary corrections to Jessie Reid's roof. The Respondent never obtained a permit for the reroofing work done for Jessie Reid at 1021 Abeline Drive, in Deltona. A permit is required to do reroofing work in Deltona, which is within the jurisdiction of Volusia County.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Registered Roofing Contractor's license number RC 0020923 held by the Respondent, John W. Thorn, be revoked. DONE AND ENTERED this 30th day of May 1984 in Tallahassee, Florida. WILLIAM B. THOMAS 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 May 1984. COPIES FURNISHED: Edward C. Hill, Jr., Esquire 130 North Monroe Street Tallahassee, Florida 32301 Mr. John W. Thorn Post Office Box 1897 Deland, Florida 32720
The Issue The issues that were presented for disposition in the above-styled cases were whether Respondent committed certain alleged violations of Chapter 489, F.S. and if so what discipline is appropriate. As stated below, the parties stipulated to the violations, leaving only the issue of discipline to be resolved.
Findings Of Fact Gordon Lee Cederberg is, and has been at all times material hereto, a licensed registered roofing contractor, having been issued license number RC 0051346, by the State of Florida. At all times material Respondent was the licensed qualifier for Allied American Roofing Company and was responsible in such capacity for supervising its contracting activities. Allied American Roofing Company was dissolved on November 4, 1988. Stipulated Violations By stipulation, Respondent has admitted the following allegations of the amended administrative complaint in DOAH #91-8319: 3. CASE NO. 0106373 COUNT THREE Respondent d/b/a Allied American Roofing contracted with Michael Roberts on April 4, 1988 to reroof a home located at 530 Mason Street, Apopka, Florida. The contract price was $942.80 and was paid in full. Respondent proceeded to complete the job without obtaining a permit and securing required inspections from the City of Apopka Building Department. By the reason of the foregoing allegations, Respondent has violated Section 489.129(1)(d), F.S., in that the Respondent willfully and deliberately disregarded and violated the applicable building code of a municipality, to wit, Apopka, Florida, by failing to obtain a permit and inspection is as required by that municipality. 4. CASE NO. 0107766 COUNT FOUR Respondent's license was under suspension by the Florida Construction Industry Licensing Board between August 10, 1988, and March 3, 1989. Respondent d/b/a Allied American Roofing contracted with Nancy Wiegner on September 22, 1988, to reroof a home located at 15 Kentucky Street, St. Cloud, Florida. The contract price was $1,600.00 and it was paid in full. Respondent commenced work under the contract but failed to obtain a permit prior to commencing such work from the City of St. Cloud, Florida, and the municipality issued a stop order on the job. Respondent further engaged in contracting in a municipality where he had not registered. By reason of the foregoing allegation, Respondent has violated Section 489.129(1)(j), F.S., in that he failed in a material respect to comply with the provisions of Section 489.117(2), F.S., in that he engaged in contracting in a municipality, to wit, St. Cloud, Florida, where he had failed to comply with the local licensing requirements for the type of work covered by his registration. COUNT FIVE By reason of the foregoing allegations, Respondent has violated Section 489.129(1)(d), F.S., in that Respondent willfully deliberately disregarded and violated the applicable building code of a municipality, to wit, St. Cloud, Florida by failing to secure a permit as required by that municipality. COUNT SIX By reason of the foregoing allegations, Respondent has violated Section 489.129(1)(j), F.S., by failing in a material respect to comply with the provisions of Section 489.127(1)(e), F.S., by engaging in contracting while his license was suspended. COUNT SEVEN By reason of the foregoing allegations, Respondent has violated 489.129(1)(m), F.S., by committing gross negligence, misconduct, and/or incompetency in the practice of contracting. 8. CASE NO. 0112740 COUNT EIGHT Respondent d/b/a Allied American Roofing contracted with Emma Smith on October 3, 1988 to reroof a home at 1911 Mullet Lake Park Road, Geneva, Seminole County, Florida. The contract price was $4,100.00 and it was paid in full. Respondent proceeded to complete the job without obtaining a permit and securing required inspections from the Seminole County Building Department. Respondent failed to properly construct a watertight roof which continued to leak and caused damage to the home. Respondent has failed to honor the five (5) year labor and twenty (20) year material warranty that was part of the said contract, although he was requested to do so. By reason of the foregoing allegations, Respondent has violated Section 489.129(1)(n), F.S., in that the Respondent proceeded on a job without obtaining an applicable local building department permit and inspections. COUNT NINE By reason of the foregoing allegations, Respondent has violated Section 489.129(1)(j), F.S., by failing in a material respect to comply with the provisions of Section 489.127(1)(e), F.S., by engaging in contracting while his license was suspended. COUNT TEN By reason of the aforesaid allegations, Respondent is guilty of violating Section 489.129(1)(m), F.S., by committing an act of gross negligence, incompetency and/or misconduct in the practice of contracting by failing to honor the written warranty described in paragraph twenty-six above. COUNT ELEVEN By reason of the aforesaid allegations, Respondent is guilty of violating Section 489.129(1)(m), F.S., by committing an act or acts of gross negligence, incompetency and/or misconduct in the practice of contracting. 12. CASE NO. 89-001674 COUNT TWELVE Respondent d/b/a Allied American Roofing Company contracted with Thelma Beck to reroof a home at 3910 Pineland Ridge Road, Orlando, Orange County, Florida on January 26, 1989 for a price of $2,270.00. Respondent accepted a $100.00 deposit for said job; the work was not begun and the $100.00 deposit was returned to Mrs. Beck. By reason of the foregoing allegations, Respondent has violated Section 489.129(1)(j), F.S., by failing in a material respect to comply with the provisions of Section 489.127(1)(e), F.S., by engaging in contracting while his license was suspended. COUNT THIRTEEN By reason of the aforesaid allegations, Respondent is guilty of violating Section 489.129(1)(m), F.S., by committing an act or acts of gross negligence, incompetency and/or misconduct in the practice of contracting. COUNT FOURTEEN Respondent d/b/a Allied American Roofing contracted with Morris Remmers to reroof a home at 8719 Butternut Boulevard, Orlando, Orange County, Florida, on or about February 23, 1989. The contract price was $2,870.00 and it was paid in full. Respondent proceeded to complete the job without obtaining a permit and securing required inspections from the Orange County Building Department. By reason of the foregoing allegation, Respondent is guilty of violating Section 489.129(1)(n), F.S., in that Respondent proceeded in a job without obtaining an applicable local building department permit and inspections. COUNT FIFTEEN By reason of the foregoing allegations, Respondent has violated Section 489.129(1)(j), F.S., by failing in a material respect to comply with the provisions of Section 489.127(1)(e), F.S., by engaging in contracting while his license was suspended. COUNT SIXTEEN By reason of the aforesaid allegations, Respondent is guilty of violating Section 489.129(1)(m), F.S., by committing an act or acts of gross negligence, incompetency and/or misconduct in the practice of contracting. 17. CASE NO. 89-008737 COUNT SEVENTEEN Respondent d/b/a Allied American Roofing contracted with Robert Speirs to reroof a dwelling at 2467 Fieldingwood Road, Maitland, Seminole County, Florida on or about October 14, 1988. The contract price was $3,600.00. Respondent proceeded to work the job but failed to obtain a permit and secure required inspections from the Seminole County Building Department. Respondent failed to properly construct a water tight roof which continued to leak. Respondent failed to honor the three (3) year labor and twenty (20) year material warranty that was part of the contract although he was requested to do so. By reason of the aforesaid allegations, Respondent has violated Section 489.129(1)(n), F.S., in that Respondent proceeded on a job without obtaining an applicable local building department permit and inspections. COUNT EIGHTEEN By reason of the foregoing allegations, Respondent has violated Section 489.129(1)(j), F.S., by failing in a material respect to comply with the provisions of Section 489.127(1)(e), F.S., by engaging in contracting while license was suspended. COUNT NINETEEN By reason of the aforesaid allegations, Respondent is guilty of violating Section 489.129(1)(m), F.S., by committing an act of gross negligence, incompetency and/or misconduct in the practice of contracting by failing to honor his written warranty described in paragraphs forty-seven above. COUNTY TWENTY By reason of the aforesaid allegations, Respondent is guilty of violating 489.129(1)(m), F.S., by committing an act or acts of gross negligence, incompetency and/or misconduct in the practice of contracting. 21. CASE NO. 109636 COUNT TWENTY-ONE Respondent d/b/a Allied American Roofing Company contracted with Daniel J. Doherty to reroof a home at 225 Dover Wood Road, Fern Park, Seminole County, Florida on October 2, 1988, for the contract price of $3,590.00 which was paid in full. Respondent proceeded to complete the job without obtaining a permit and securing required inspections from the Seminole County Building Department. Respondent failed to construct a watertight roof, which contributed to water damage to the interior of Mr. Doherty's home. Respondent failed to honor the five (5) year labor and twenty (20) year material warranty that was part of the contract, although he was requested to do so. By the reason of the foregoing allegations, Respondent has violated Section 489.129(1)(n), F.S., by proceeding on the job without obtaining a local building department permit and inspections. COUNT TWENTY-TWO By reason of the foregoing allegations, Respondent has violated Section 489.129(1)(j), F.S., by failing in a material respect to comply with the provisions of Section 489.127(1)(e), F.S. by engaging in contracting while his license was suspended. COUNT TWENTY-THREE By reason of the foregoing allegations, Respondent has violated 489.129(1)(m), F.S., by committing gross negligence, misconduct, and/or incompetency in the practice of contracting by failing to honor his warranty as described in paragraph fifty-six above. COUNT TWENTY-FOUR By reason of the aforesaid allegations, Respondent is guilty of violating Section 489.129(1)(m), F.S., by committing an act or acts of gross negligence, incompetency and/or misconduct in the practice of contracting. COUNT TWENTY-SEVEN Respondent d/b/a Allied American Roofing contracted with Gloria Viruet to reroof a home at 3010 (renumbered to 3007) Northwood Blvd., Orlando, Orange County, Florida on June 7, 1988. The contract price was $3,500.00. Respondent proceeded to complete the job without receiving a permit and securing required inspections from the Orange County Building Department. The Respondent failed to properly construct a watertight roof and a leak developed after construction. Respondent failed to honor the five (5) year labor and twenty (20) material warranty that was part of the said contract, although he has been requested to do so. By reason of the aforesaid allegations, Respondent has violated Section 489.129(1)(d), F.S., in that Respondent willfully and deliberately disregarded and violated the applicable building code of a County, to wit, Orange County, Florida by failing to obtain a permit and inspections as required by that County. COUNT TWENTY-EIGHT By reason of the aforesaid allegations, Respondent is guilty of violating Section 489.129(1)(m), F.S., by committing an act or acts of gross negligence, incompetency and/or misconduct in the practice of contracting, by failing to honor his written warranty described in paragraphs seventy. COUNTY TWENTY-NINE By reason of the aforesaid allegations, Respondent is guilty of violating Section 489.129(1)(m), F.S., by committing an act or acts of gross negligence, incompetency and/or misconduct in the practice of contracting. 28. CASE NO. 0108263 COUNT THIRTY Respondent d/b/a Allied American Roofing Company contracted with John E. Hultin to reroof a home located at 3610 Lakeview, Apopka, Florida on November 7, 1987. The contract price was $2,900.00 and it was paid in full. Respondent proceeded to complete the job without obtaining a permit and securing required inspections from the Seminole County Building Department. Respondent failed to properly install a roof covering, violating Section 103 of the Standard Building Code, 1985 Standard of Installation of Roofing Coverings adopted by Seminole County and Seminole County Ordinance Section 40.51. The contract provided for a five (5) year labor warranty and a twenty (20) year material warranty. Respondent made several attempts to correct defects but has not fulfilled his warranty as the roof continued to leak. By reason of the aforesaid allegations, Respondent has violated Section 489.129(1)(d), F.S., in that the Respondent willfully and deliberately disregarded and violated the applicable building code of a county, to wit, Seminole County, Florida by failing to obtain a permit and inspections as required by that county. COUNT THIRTY-ONE By reason of the foregoing allegations, Respondent has violated Section 489.129(1)(d), F.S., in that the Respondent willfully and deliberately disregarded and violated the applicable building code of a county, to wit, Seminole County, Florida by installing the above described roof in a grossly negligent manner and in a manner which violated Section 103 of the Standard Building Code, 1985 Standard of Installation of Roof Covering, adopted by Seminole County and Seminole Ordinances Section 40.51. COUNT THIRTY-TWO By reason of the aforesaid allegations, Respondent is guilty of violating Section 489.129(1)(m), F.S., by committing an act or acts of gross negligence, incompetency and/or misconduct in the practices of contracting by failing to honor his written warranty described above. COUNT THIRTY-THREE By reason of the aforesaid allegations, Respondent is guilty of violating Section 489.129(1)(m), F.S., by committing an act or acts of gross negligence, incompetency and/or misconduct in the practice of contracting. FACTS RELATED TO RESPONDENT'S PROPOSED MITIGATION Respondent has been engaged in the practice of roofing contracting for over twenty years. Prior to moving to Florida in 1983 his company worked in Michigan, Ohio and Indiana on large commercial jobs. In 1983 he was employed by the Disney company to do commercial roofing work. After licensure in Florida, Cederberg continued with large public works and commercial jobs in Florida. Sometime around 1988, after a disastrous reversal of fortune, the company filed for bankruptcy. Although he was utterly unfamiliar with the practice of residential roof contracting, particularly the demanding supervision involved, Gordon Cederberg began doing residential work. Around this same time Cederberg's wife left him and he was given custody of three children, ages three, six, and nine. He was emotionally distraught and obtained counseling and financial and other support from his church group. Cederberg's roofing contractor's license was suspended by the Construction Industry Licensing Board from August 1, 1988 to March 1, 1989, during which time he continued to work, due to financial pressures. Warranty work was not done due to his financial and emotional straits. According to Cederberg and his witnesses, he is in the process now of turning his life around. He operates on a smaller scale and is able to handle the work. He has one employee and has been able to avoid new complaints. He is still financially unable to provide restitution to the customers previously harmed.
Recommendation Based on the foregoing it is hereby, RECOMMENDED: that the parties' stipulation with regard to dismissals and admissions described above be accepted by the Board and that the following penalty be imposed: a) 1000.00 fine; one year suspension, with this penalty suspended during, and removed upon successful completion of, probation with an appropriate timetable for restitution and the requirement that appropriate continuing education courses are completed; and payment of costs of investigation and prosecution. DONE and ENTERED this 31st day of December, 1992, at Tallahassee, Florida. MARY CLARK Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 31st day of December, 1992. COPIES FURNISHED: Jack McRay, General Counsel Department of Professional Regulation 1940 North Monroe Street Tallahassee, FL 32399-0792 Daniel O'Brien, Executive Director Construction Industry Licensing Board P.O. Box 2 Jacksonville, FL 32202 William S. Cummins, Esquire Department of Professional Regulation 1940 North Monroe Street Tallahassee, FL 32399-0792 Jack Snow, Esquire 407 Wekiva Spings Road, Suite 229 Longwood, FL 32779
Findings Of Fact At all times relevant hereto, respondent, James S. Stroz, held registered roofing contractor license number RC 0034849 issued by petitioner, Department of Professional Regulation, Florida Construction Industry Licensing Board. He was first licensed in November, 1979, and at that time qualified under the name of Stroz Roofing. A change in status application was later filed to qualify Stroz Roofing, Inc., 13696 Exotica Lane, West Palm Beach, Florida. Although licensed as a roofing contractor, respondent's firm only performs work on wood shakes or shingles. He does not do hot roofs or flat roofs, which is another speciality in the roofing business. While working for a roofing firm in1979, Stroz became acquainted with Lacy Davis, an unlicensed individual who specialized in flat roof work. When Stroz started his own roofing company in 1983, he began contracting out the flat roof work to other licensed roofing contractors. Lacy Davis learned of this and approached Stroz offering his services on the flat roof work. Stroz knew Davis was unlicensed and would not initially hire him, but Davis gave him a business card of Henry Haywood, a licensed roofing contractor in Palm Beach County and explained he and Haywood were partners and that the work and permitting would be done under Haywood's license. In actuality, Haywood had not authorized Davis to use his business cards, or topull permits under his name. Indeed, Haywood had no knowledge of Davis' activities. Without verifying the truth of Davis' representations, and accepting them instead at face value, Stroz agreed to hire Davis to perform his flat roof work. Between January 20, 1983 and September 30, 1984, Stroz performed some twenty-one jobs using Davis for the flat roof work. At all times, Stroz was under the impression that the work was being done under Haywood's license and that his activities were lawful. Stroz made all checks for the work payable to Lacy Davis or Lacy Davis Roofing. He did this because Davis told him he frequently had difficulty reaching Haywood to cash the checks, and because the business bank account was in Davis' own name. A few of the checks carried a notation at the bottom that payment was for work by Haywood Roofing, but most made no reference to Haywood. Stroz pulled all permits on their jobs reflecting that Haywood Roofing was the licensed contractor. Of the twenty invoices given by Davis to Stroz for the twenty-one jobs, only four were on invoices printed with Haywood's name. The remainder had various other names including "Lacy Davis Roofing," "Lacy Davis" and "Lacy Davis and Benny Guy Roofing Contractors." None of these were licensed as roofing contractors by petitioner. In June, 1984, a member of Davis' crew was injured and it was discovered Davis had no insurance. Stroz's insurance paid the claim, but an investigation ultimately determined that Davis was unlicensed and had no authority to act on Haywood's behalf. This led to the issuance of the administrative complaint herein. Respondent has fully cooperated with petitioner, and in fact voluntarily disclosed one job with Davis that petitioner's investigation had failed to uncover. He admits he was negligent in not checking out the representations of Davis, but he never intended to violate the law. No consumer was harmed in any way by Davis' work, and there are no complaints concerning the quality of the jobs in question.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that Respondent be found guilty as charged in the administrative complaint, and that he be fined $500 to be paid within thirty days from date of the final order rendered in this proceeding. DONE and ORDERED this 2nd day of July, 1985, in Tallahassee, Florida. DONALD R. ALEXANDER Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, FL 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 2nd day of July, 1985.
