The Issue The issues in this case concern an administrative complaint brought by Petitioner against Respondent alleging an inadequate performance in work done for a customer, Louise A. Bright. In particular, Respondent is said to have proceeded to do work for Ms. Bright without having obtained a timely permit to commence the work, in violation of local law, by his deliberate action or through improper supervision. As a consequence, Respondent is said to have violated various provisions of Chapter 489, Florida Statutes. In addition, Respondent is accused of having done business under a name other than the name reflected on his license, as issued by Petitioner, the name which he had done business under having not been qualified with Petitioner. Again, this constitutes alleged violations of Chapter 489, Florida Statutes. Finally, Respondent is accused of gross negligence, incompetence, misconduct and/or deceit in connection with work based upon his personal activities or his failure to properly supervise, leading to a performance which did not provide a reasonably watertight roof, which roof leaked; the improper installation of window seals, resulting in water draining towards the interior; and misconduct in the competitive-bid process associated with the Bright job. The administrative complaint points out that the Respondent had previously been disciplined by the Construction Industry Licensing Board in an unrelated case.
Findings Of Fact The State of Florida, Department of Professional Regulation, has the responsibility of prosecuting administrative complaints brought by the Construction Industry Licensing Board. The authority for the activities of these entities is announced in Chapters 120, 455 and 49, Florida Statutes, and applicable rules promulgated under the authority of those statutes. At times pertinent to this inquiry, Respondent has been licensed by the Construction Industry Licensing Board as a certified residential contractor. His license number is CR C0277268. The license he holds is as an individual. Respondent has not served as a qualifying agent for a company known as Stratton Construction Company. Ms. Louise A. Bright of 5143 Astral Avenue, Jacksonville, Florida, was interested in having remodeling and re-roofing work done at her home at that address under the auspices of the HUD Rehabilitation Program. In this connection, she sought bids from two contractors other than Respondent. The intention of those two contractors in submission of sealed bids to Ms. Bright was to secure their contents from being disclosed to competitors, such as Respondent. Respondent contacted Ms. Bright about bidding on this project. This solicitation of Ms. Bright was not inappropriate. It was inappropriate for Respondent, once he entered into discussions with Ms. Bright at her home, to insist on Ms. Bright revealing the contents of his competitors' bids. Ms. Bright told Respondent that she did not think this was an appropriate arrangement. Respondent replied that it was done all the time. Respondent kept asking Ms. Bright about different items in one competitor's bid quotation. Eventually, Ms. Bright tired of the discussion and laid one of the two proposals on her table and Respondent examined it and began to describe how he thought he could undercut the price of his competitor. As Robert H. Adams, a certified residential contractor licensed by the State of Florida, testified in the hearing, it was an act of misconduct for Respondent to ask for the contents of the sealed bid of the competitor before submitting his own bid. In fact, Respondent did not offer his terms until he had had the opportunity to examine the position of a competitor and the terms of that competitor's bid. On May 28, 1987, Ms. Bright and Respondent entered into a contract to have the remodeling work done at her home and the roof work. The roof work was constituted of shingles in one portion and the installation of materials which approximate a built-up roof in another portion. The price of the contract was $15,140.00. Respondent entered into the contract with Ms. Bright under the name of Stratton Construction Company. Respondent commenced the work sometime around June 8 or 10, 1987. Respondent, under the name of Stratton Construction Company, obtained a building permit from the City of Jacksonville, Florida, for purposes of the re- roofing work only. That permit was obtained on June 11, 1987, after the overall work began at the residence. Although it was incumbent upon Respondent to obtain a permit from the City of Jacksonville to do the remodeling portion of the work, as contemplated by requirements of the City of Jacksonville's Building Code, the remodeling permit was never obtained before commencement of the work, nor at any other time, as the record stands. As the work proceeded, several change orders were executed on May 28, 1987, June 2, 1987 and June 3, 1987. A fourth change order was not allowed. The reason for its rejection was based upon the perception of an official with HUD, Hank Pocopanni, who felt that the cost of the fourth change order was too expensive. The ultimate contract price was $15,130.00. Based upon the progress of the work, 30% and 60% payments on the contract amount were rendered based upon a 40% and 80% completion. At the time of the second draw, the roof had been installed. The roof in question, although needing repair, had not been leaking prior to the work that was done on it. The roofing work was done at the residence by Bailey's Roofing of 2922 West 6th Street, Jacksonville, Florida 32205. The inspections on the quality of the roof work which were done by the HUD and the City of Jacksonville were not detailed inspections. The inspections by the City of Jacksonville were merely to see that the roof had been installed. The more complete inspection of the roof which would have been done by HUD was to be performed at the time of the final inspection. That final inspection never occurred because Ms. Bright and Respondent terminated their relationship as owner and contractor under the contract. Respondent has also placed a claim of lien against Ms. Bright for the balance of the contract money not disbursed. The roof has leaked in a bedroom in the home, as well as in the breakfast room and around one of the chimneys, running down rafters from the chimney. In addition, as Mr. Adams pointed out in his expert opinion testimony, which is accepted, the prefab chimney structure, which had heavy asphalt cement placed upon the top of the cap, was an inappropriate installation because chimneys produce heat and one should not put asphalt cement next to them. Respondent has sufficient expertise to understand the inappropriateness of this form of installation. It is not necessary for him to be a roofing contractor to understand that this was an incorrect choice. Nor does he need to be a roofing contractor to understand, as Mr. Adams, in his expert opinion, identified that the shingles on the roof were improperly installed and the fact that the shingles had been improperly cut because they did not cover the eaves drip completely. A certified residential contractor, such as Respondent, has the necessary expertise to understand the re-roofing by use of shingles. Respondent is also capable of understanding that the installation of flashing material around the chimney at the home was unsightly and improper, as identified by Mr. Adams, whose expertise is accepted and opinion is credited. Mr. Adams also identified the fact of a 48-inch overhang at the rear of the house without vertical support columns or beams and some concern about the stability of that situation. On balance, his opinion does not seem to state with certainty that this, indeed, is a problem. Likewise, his opinion about the part of the roof which is, by nature, more akin to a built-up roof and its potential for physical damage because of problems with its membrane is not credited because he is not found to be an expert in those types of roofs. According to Mr. Adams, the problems with the roof and window seals were representative of incompetence and lack of proper supervision on the part of Respondent. This opinion of Mr. Adams is accepted. Mr. Adams, in his expert opinion, identified the fact that the window seals, which had been installed in this project, did not have an appropriate slope to allow them to divert water away from the windows, resulting in the possibility of water intrusion into the house. This refers to rainwater. His opinion is accepted. Although a copy of a punchlist dated August 25, 1987, which Respondent had and is shown as Exhibit 5 admitted into evidence, makes reference to repairs of a roof leak in bedroom 1, on February 2, 1988, Ms. Bright was still having problems with the roof as evidenced by correspondence directed to Stratton Construction Company on that date. Respondent has been disciplined in the past by the imposition of a $100.00 fine in DOAH Case No. 87-2699. This pertained to a contract of August 14, 1986 with Aaron Lee and Valerie Patrice Cobb to renovate their home at 5017 Pearl Street, Jacksonville, Florida. It was the finding in that case that prior to that situation, Respondent had only built new homes in Florida and was unaware of the necessity to obtain a permit to affect repairs to the interior of the home other than the permit he had obtained. The facts went on to describe how Respondent was aware of the need to secure a building permit for construction of the utility room but only applied for that permit on June 11, 1987, long after the work had been completed and he was in dispute with the homeowners. As a consequence, Respondent was found in violation of Section 489.129(1), Florida Statutes, and the fine imposed.
Recommendation In accordance with Chapter 21E-17, Florida Administrative Code, having in mind Respondent's disciplinary history, it is RECOMMENDED: That a Final Order be entered which imposes an administrative fine of $2,000.00 for these violations. DONE AND ENTERED this 18th day of October, 1989, in Tallahassee, Leon County, Florida. CHARLES C. ADAMS 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 18th day of October, 1989. APPENDIX TO RECOMMENDED ORDER, CASE NO. 89-2164 Petitioner's facts are responded to as follows: Paragraphs 1-10 are subordinate to facts found. Paragraph 11 is subordinate to facts found, except its suggestion of problems other than those associated with the roof and the window seals, which other problems are not relevant to this inquiry. Paragraph 12 is subordinate to facts found. Paragraph 13 is subordinate to facts found, except to the reference to problems other than with the roof and the window seals, which problems are not relevant to this inquiry. Paragraph 14 is subordinate to facts found, except to the reference to comments by Mr. Adams related to the roofing membrane, which is found to be beyond his expertise. COPIES FURNISHED: George W. Harrell, Esquire Department of Professional Regulation 1940 North Monroe Street Suite 60 Tallahassee, Florida 32399-0750 Kenneth E. Easley, Esquire General Counsel Department of Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0750 Mr. Fred Seely Executive Director Construction Industry Licensing Board Post Office Box 2 Jacksonville, Florida 32202 Mr. Stuart Stratton 3365 Silver Palm Drive Jacksonville, Florida 32250
Findings Of Fact James Wells is a registered building contractor having been issued license number RB 0008753. In June, 1985, Christiane J. Guignard hired James Wells to do repairing and rebuilding on parts of her home, including roofing work. The roofing work consisted of building a roof extension with hot tar and gravel roofing and a shingle roof. Guignard maintains that Wells agreed to guarantee his roof work against leaks for five years. Wells maintains that there was no explicit warranty, but he understood that he was responsible for "about a year" for leaks in his work. Wells did the work agreed on and completed it at the end of July, 1985. Guignard paid Wells a total of $4,575 for all of the work he had done. Prior to Wells' roofing work, Guignard had three leaks in her roof. Wells' work eliminated those leaks. According to Guignard, she had five leaks after Wells completed his work: 3 leaks around chimneys, 1 leak in a valley, and 1 leak in the overhang roof. Guignard called Wells and he came to perform repairs at the end of August, 1985. He applied silicon in the valley, around the chimneys and around a picture window, and he inserted extra shingles in the valley. According to Guignard, none of the leaks stopped. According to Guignard, she called Wells incessantly from the end of August, 1985, to March, 1987, regarding the leaks. Wells came back several times to inspect the roof for leaks. Wells determined that one leak was the result of an electrician who put a hole and two nails in the roof. Wells repaired this leak even though it was not the result of his work. Wells flashed two chimneys. In June or July, 1985, Wells replaced the shingles in the valley. Wells repaired all the leaks except the one in the overhang. Wells never found any evidence of a leak in that area. Guignard believes that area is leaking because the siding has become discolored and because she saw rain water running around the siding when she stood under the overhang in a heavy rain. Wells says that he told Guignard that the possibility existed that excess rain water from a heavy rain could run down the siding because of the slant of the roof. He saw the discoloration of the siding and says it results from the tree buds of a nearby tree falling on the roof, mixing with rain water, and running over the siding. Wells told Guignard that she needed to treat the siding with a water sealer to seal the wood. Sealing the wood was not part of his job and Guignard said she would do it, but never has. No independent or expert testimony was offered to show that a leak exists in the overhang or that any leak which is alleged to exist is the result of Wells' work.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Professional Regulation, Construction Industry Licensing Board, enter a Final Order dismissing the Administrative Complaint against James Wells. DONE AND ENTERED this 11th day of May, 1988 in Tallahassee, Leon County, Florida. DIANE K. KIESLING 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 11th day of May, 1988. APPENDIX TO RECOMMENDED ORDER, CASE NO. 87-5603 The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on the proposed findings of fact submitted by the parties in this case. Specific Rulings on Proposed Findings of Fact Submitted by Petitioner, Department of Professional Regulation, Construction Industry Licensing Board Proposed finding of fact 1 is adopted in substance as modified in Findings of Fact 1 and 2. Proposed findings of fact 2 and 3 are rejected as being unsupported by the competent, substantial evidence. Proposed findings of fact 4-8 are subordinate to the facts actually found in this Recommended Order. Specific Rulings on Proposed Findings of Fact Submitted by Petitioner, James Wells Proposed finding of fact 6 is adopted in substance as modified in Finding of Fact 11. Proposed finding of fact 12 is adopted in substance as modified in Finding of Fact 10. Proposed finding of fact 1 is adopted as a Conclusion of Law. Proposed findings of fact 2 and 9-11 are rejected as being unnecessary for the resolution of this matter. Proposed findings of fact 3-5, 7, and 8 are subordinate to the facts actually found in this Recommended Order. COPIES FURNISHED: David L. Swanson, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 Harold S. Richmond, Esquire 227 East Jefferson Street Post Office Box 695 Quincy, Florida 32351 William O'Neil, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 Fred Seely, Executive Director Construction Industry Licensing Board Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750
The Issue Whether Respondent's registered roofing contractor's license should he revoked, suspended or otherwise disciplined based on charges that he violated Ch. 455, Florida Statutes (1979), by (1) abandoning a construction project; making a misleading, deceptive or untrue representation in the practice of his profession; (3) violating local building codes in two instances; and (4) engaging in the business of contracting in a county or municipality without first complying with local licensing requirements.
Findings Of Fact At all times material hereto, respondent held registered roofing contractor's license, number RC 0033215, issued by the State of Florida. The license has been in a delinquent status since July 1, 1981. (Petitioner's Exhibit 1). Between October 1, 1979, and September 30, 1980, respondent held an occupational license issued by the County of Indian River, Florida, which enabled him to engage in the business of roofing contracting in that county. However, this occupational license expired on September 30, 1980. (Petitioner's Composite Exhibit 9). In February, 1981, respondent entered into a verbal agreement with Ezra Grant to repair, for compensation, all leaks in the front and rear sections of the roof on Grant's home, which was located in Sebastian, Florida. (Testimony of Grant). When respondent and Grant entered into this verbal agreement, respondent gave Grant one of his calling cards. On the face of the calling card, in the lower right corner, was written "licensed and insured." (Petitioner's Exhibit 4; Testimony of Grant). At all time material hereto, respondent was not licensed to engage in the business of roofing contracting in the City of Sebastian, Florida. (Petitioner's Exhibit 5). Pursuant to the agreement, respondent performed roof repairs on Grant's home. (Testimony of Grant). Respondent failed to obtain a permit to perform such roof repairs in violation of Section 105.1, Standard Building Code, as adopted by the City of Sebastian, Florida in Section 7-16, Article II, Sebastian Code of Ordinances. (Petitioner's Exhibits 6 and 8a and b). On February 19, 1981, respondent submitted a bill in the amount of $800.00 to Grant for the roof repairs. The bill described the work performed and stated that the "work is guaranteed for 1 year." (Petitioner's Exhibit 2; Testimony of Grant). On February 20, 1981, Grant paid respondent, in full, for the described roof repairs. (Petitioner's Exhibit 3). Approximately two weeks after respondent performed the roof repairs, the roof over the rear portion of Grant's home began to leak, again, in the area where it was repaired. (Testimony of Grant). Respondent returned to Grant's home, on two occasions1 after the discovery of continuing leakage in the roof over the rear portion of Grant's home. However, respondent did not perform roof repairs on either occasion. On the first occasion, he merely removed equipment which he had left at Grant's home. (Testimony of Grant). After Grant complained to petitioner Department of Professional Regulation, respondent returned a second time. He inspected the rear portion of Grant's roof, removed two layers of slate from the roof, and tested it by pouring water over it. Although this test revealed that Grant's roof still leaked, Grant made no effort to repair the leakage. (Testimony of Grant). Arthur Mayer, then the Building Official for the City of Sebastian, observed respondent removing the slate from the roof. He instructed respondent that, upon finishing the work, he should go to the Sebastian City Hall and apply for a roofer's license and a permit for the roof repairs already performed on Grant's home. Respondent promised to comply. (Testimony of Mayer). But, despite his promise, he failed to apply for and obtain a license to engage in the business of roofing contracting in the City of Sebastian, Florida. He also failed to apply for and obtain a roof permit, and pay the proper late fees, as required by Section 107.2, Standard Building Code, as adopted by the City of Sebastian, Florida, in Section 7-16, Article II, Sebastian Code of Ordinances. (Testimony of Mayer; Petitioner's Exhibits 6, 8a and c). Grant, eventually, had his roof repaired by another contractor at a cost of $150.00. (Testimony of Grant).
Recommendation Based on the foregoing, it is RECOMMENDED: That respondent's registered roofing contractor's license be revoked. DONE AND ORDERED this 28th day of February, 1983, in Tallahassee, Florida. R. L. CALEEN, JR. 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 28th day of February, 1983. COPIES FURNISHED: Stephanie A. Daniel, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Jerry E. Smith Route 1, Box 111B Fellsmere, Florida 32948 James Linnan, Executive Director Construction Industry Licensing Board P. O. Box 2 Jacksonville, Florida 32202
Findings Of Fact Jurisdiction findings Petitioner is the state agency charged with regulating licenses for roofing contractors in the State of Florida. At all times material to the allegations of these cases, Respondent held two licenses; he was a certified roofing contractor, license no. CC CO55580, and a registered roofing contractor, license no. RC 0060386. Respondent filed an application to qualify the company, D.S.S. & Sons, Inc., as a licensed roofing contractor; however, he failed to complete all documents necessary for licensure, and his application was closed for lack of response effective August 3, 1993. Respondent's address of record with the Department is 821 SW Dwyer Street, Port St. Lucie, Florida 34983. D.S.S. & Sons, Inc. is not now, nor has it ever been, licensed to perform roofing construction by the State of Florida. Facts common to all consumers On or about August 24, 1992, Hurricane Andrew struck Dade County, Florida, resulting in damage to hundreds of roofs. Roof repair or total replacement following the storm was not uncommon. Due to the large amount of damage, and the demand for roofing materials created by the volume of work to be performed, some contractors had difficulty obtaining roofing supplies. Additionally, some contractors had difficulty hiring qualified labor to perform the extensive roofing that was in great demand. The problems with obtaining materials and labor, however, were short term in that most roofing contractors made arrangements to bring in supplies and staff from other areas. In fact, by the time the work was to be performed in connection with these cases, the problems which had plagued the Dade County contractors were subsiding. Additionally, at all times material to these cases, the weather would not have been a factor to justify the delays complained of by these consumers. Rainy weather did not cause any prolonged work delays after the storm. Findings as to Helmly Charles Helmly resides at 11985 SW 98th Lane, Miami, Florida. His home was damaged by Hurricane Andrew and required roof replacement. Mr. Helmly contracted with Respondent to re-roof his home for the sum of $17,940.00. The contract was signed by Respondent's salesman, Felix Fowler, and identified D.S.S. & Sons, Inc. doing business as Darryl Saibic, Roofing Contractor as the licensed entity. Mr. Helmly paid an initial deposit of $5,382.00 in order for the Respondent to begin work on the project. The next payment, an additional $5,382.00, was to be due at the "dry in" stage of the job, with the final payment (the balance) due on completion. One of the contract provisions Mr. Helmly insisted upon was a completion deadline to be stated in the contract. He was expecting visitors and he was anxious to have the home re-roofed before their arrival. He insisted that a guaranteed completion date of March 7, 1993 be noted on the face of the contract. Mr. Helmly complied with all requirements of the payment schedule outlined by the contract. In fact, he remitted $10,764.00 even though the roof had not been at the "dry in" stage. Between January and February, 1993, the Respondent removed the old roof, installed a base sheet, and nailed a single ply roof membrane to the roof. After February, 1993, the Respondent failed to timely complete the Helmly roof. The value of the work performed by Respondent on the Helmly roof was no more than $3,588.00. The Respondent did not respond to numerous telephone calls and letters from Helmly, and threatened to place a lien on the Helmly property when Mr. Helmly attempted to cancel the contract in May, 1993. Mr. Helmly went to the Dade County Building Department and complained about roof leaks in June, 1993 (Respondent had still not done any further work). On or about June 4, 1993, Respondent sent a crew to the Helmly property to repair the roof. The repairs caused the roof to leak more. Respondent did not refund Mr. Helmly's money, did not complete the roof, and showed a gross indifference to the plight which resulted when he failed to timely complete the project. In July, 1993, desperate to have his roof completed, Mr. Helmly offered to purchase the tiles himself if Respondent would have a crew come install the new roof. Respondent agreed to have a crew install the tile within ten days of its arrival. On September 17, 1993, Mr. Helmly took delivery of the new tile, paid for it in full (a cost of $4,803.00) and notified the Respondent so that the installation could begin. Respondent never returned to complete the re-roofing. He failed to honor his verbal agreement to install the tiles. By letter dated October 1, 1993, Respondent offered to reimburse Helmly for the overage if he would hire another contractor to complete the job. On October 19, 1993, Mr. Helmly hired a new contractor who completed the installation of the new roof in early November, 1993. Approximately eight months after the deadline on Respondent's contract, Mr. Helmly had his new roof. Extra expenses totalling $2,936.21 were paid by Mr. Helmly as a result of the Respondent's abandonment of this job. Findings as to Gurdian On January 14, 1993, the Gurdians contracted with Respondent through his agent, Ed Comstock, to repair the roof on their home located at 13301 SW 110 Terrace, Miami, Florida. The contract was executed as D.S.S. and Sons, Inc. d/b/a Darryl S. Saibic, Roofing Contractor and called for a total payment of $7,725.00 for the work to be done. The Gurdians made a deposit of $2,300.00 on January 14, 1993 by check made payable to D.S.S. and Sons, Inc. and received a partial release of lien. On February 8, 1993, the Respondent pulled a permit for the Gurdian home but never called for inspections on this project. In February, 1993, all the tiles were removed from the roof and roofing paper was installed. On March 1, 1993, the Gurdians made a second payment of $2,300.00 by check made payable to D.S.S. and Sons, Inc. and received another partial release of lien. The Respondent did not timely complete the Gurdian roof. From June through November, 1993, Respondent sent the Gurdians unsigned notices claiming he would return to their job but did not do so. Numerous excuses were offered as to why the project was not completed; however, none of these had merit. The Gurdians waited until April, 1994 hoping the Respondent would return and complete the work. They drove to Respondent's office and left a message seeking assistance. Finally, Respondent recommended a company called CTI to complete the roof work for the Gurdians. When contacted, CTI told the Gurdians it would cost $7,600.00 to complete their job for which they, not Respondent, would be responsible. The Gurdians then attempted to notify the Respondent at his address of record by certified mail of their continuing problems but the letter was returned to them unopened. In June, 1994, the Gurdians hired another company to finish their roof which was finally complete and passed inspections on July 26, 1994. The Gurdians were required to pay a total of $13,475.00 to have their roof replaced because the Respondent failed to perform under the original contract. Due to the Respondent's abandonment and indifference in connection with this project, the Gurdians were damaged in an amount not less than $4,200.00. The value of the work performed by Respondent on the Gurdians' roof did not exceed $1,545.00. Respondent has not refunded any of the funds paid by the Gurdians. Findings of fact as to Vila Marta Vila resides at 11116 SW 133 Place, Miami, Florida 33186. Like the others discussed above, the Vila home was damaged and required a new roof. On January 13, 1993, Vila signed a contract with Ed Comstock acting on behalf of D.S.S. and Sons, Inc., doing business as Darryl S. Saibic, Roofing Contractor, to have her roof repaired for a total contract price of $7,200.00. A down payment of $2,160.00 made payable to the company was made at that time. On February 8, 1993, Respondent pulled a permit to re-roof the Vila home. On February 15, 1993, Vila paid an additional $2,160.00 to Respondent. At that time Respondent removed the tiles from the Vila roof and installed one layer of roofing paper over the roof decking. Despite representations from Respondent that new tiles would be delivered in approximately three to four weeks, the Respondent did not install a new roof on the Vila home. In February and March, 1993, the roof was patched three times to stop leaks but no substantive work was performed to install new tiles. Respondent did not return to the Vila home despite numerous requests from the homeowner for the work to be completed. In June, 1993, Respondent represented that the Vila job might be completed if the tiles were sent out COD. When Vila attempted to verify that information, she was told she had paid enough to not have that concern. However, no tiles were ever delivered to her home. In August, 1993, Vila, after Respondent failed to return telephone calls, wrote to Respondent and demanded a refund. She has not received one. Vila ended up paying $7,754.00 to another contractor to have her roof replaced. The value of the work performed by Respondent on the Vila project did not exceed $1,440.00 yet he has failed or otherwise refused to refund the difference between that amount and what she paid. Vila has suffered monetary damages in an amount not less than $4,800.00 as a result of Respondent's abandonment of this project. Findings of fact as to Bermudez Mr. and Mrs. Bermudez reside at 8335 SW 147th Place, Miami, Florida. On November 30, 1992, they signed a contract with Respondent in the amount of $6,400.00 to correct extensive leakage on both floors of the Bermudez home. Mrs. Bermudez gave a deposit in the amount of $1,860.00 and was told that the repairs would begin in two weeks and be completed in approximately five weeks. In December 1992, and January, 1993, the Respondent performed some minor patching but no significant work was undertaken to repair the Bermudez home. In January, 1993, Respondent pulled a permit to replace the Bermudez roof. Within a week of the permit, Respondent sent an unsigned form letter to the Bermudez advising them that there would be delays. In February and March, 1993, the Respondent's crew stripped the old tile off the Bermudez home and installed batten and roofing paper over the decking. Mrs. Bermudez made deposits totalling $3,720.00 to Respondent in connection with this contract. Despite numerous requests from Mrs. Bermudez, Respondent did not complete the roof. In July, 1993, Respondent sent a crew to the Bermudez home in connection with a leak but the repair did not resolve the problems and did not substantively finish the roof. As with the other cases, between July and November, 1993, Respondent sent numerous unsigned form letters to Mrs. Bermudez offering false or ridiculous excuses for why the project had not been completed. In January, 1994, Mrs. Bermudez filed a formal complaint against Respondent but he never completed the job nor refunded the deposits. Between March and July, 1994, Respondent represented he would complete the Bermudez job but did not do so. The Bermudez roof was not completed until December 13, 1994. As a result of Respondent's incompetence, inability, or refusal to complete the Bermudez roof, the family lived with a leaking roof for approximately two years and incurred unnecessary expenses. Respondent showed a gross indifference to the plight of the Bermudez family. Respondent could not have timely completed the projects described above during the period July, 1993 to July, 1994, as his workers compensation had expired. The numerous promises to perform the contracts as originally agreed were meaningless.
Recommendation Based on the foregoing, it is, hereby, RECOMMENDED: That the Department of Business and Professional Regulation, Construction Industry Licensing Board enter a final order revoking Respondent's licenses, requiring Respondent to make full restitution to the consumers in these cases before being entitled to seek new licensure, imposing an administrative fine in the amount of $10,000, and assessing costs of investigation and prosecution of these cases as set forth in the affidavits filed in this cause. DONE AND RECOMMENDED this 25th day of October, 1995, in Tallahassee, Leon County, Florida. JOYOUS D. PARRISH Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 25th day of October, 1995. APPENDIX TO RECOMMENDED ORDER, CASE NOS. 95-1079, 95-1080, 95-1081, 95-1082 Rulings on the proposed findings of fact submitted by the Petitioner: 1. Paragraphs 1 through 155 are accepted. Rulings on the proposed findings of fact submitted by the Respondent: 1. None submitted. COPIES FURNISHED: Elizabeth Masters Senior Attorney Department of Business and Professional Regulation 7960 Arlington Expressway, Suite 230 Jacksonville, Florida 32211 Darryl Saibic 821 S.W. Dwyer Road Port St. Lucie, Florida 34983 Richard Hickok Executive Director Department of Business and Professional Regulation Construction Industry Licensing 7960 Arlington Expressway, Suite 300 Jacksonville, Florida 32211-7467 Lynda L. Goodgame General Counsel Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792
Findings Of Fact In July, 1986, Respondent is and at all material times has been licensed as a certified roofing contractor in the State of Florida. He holds license number CC C026475. He is the qualifying agent for B & P Roofing, Inc. In July, 1986, B & P Roofing, Inc. performed a pre- closing roof inspection of the 1029 McKean residence at the request of the real estate broker handling the sale. The report, dated July 31, 1986, estimated that it would cost $1400 to reroof the flat roof areas and replace the skylights and $300 to replace some cracked tiles on the main, sloped roof. Noting that it was impossible to examine the roof membrane under the tiles, the report concludes that the repairs should be minimal. Chris and Heather Peterson purchased the 1029 McKean residence on August 9, 1986. In late December, 1986, or early January, 1987, the Petersons contacted B & P Roofing, Inc. and requested that they perform the roofing repairs identified in their earlier estimate. The parties agreed that B & P Roofing, Inc. would also replace two skylights for an additional $300. By Final Order filed on April 22, 1983, Petitioner reprimanded Respondent, as qualifying agent for B & P Roofing, Inc., for failing to obtain a permit and inspection in connection with a residential roof installation. By Final Order filed January 23, 1984, Petitioner imposed an administrative fine of $500 against Respondent, as qualifying agent for B & P Roofing, Inc., for failure to obtain building permits on three different roofing jobs. As a result of these disciplinary actions, B & P Roofing, Inc. adopted a procedure by which each job could be readily checked in the office as to whether a permit had been obtained. A chart is posted in the office and each job is marked as to whether it requires a permit and, if so, whether a permit has been issued. After the Peterson job had been obtained but before work had begun, Richard Francis Xavier McFadden, the president of B & P Roofing, Inc. noticed that the Peterson job had been posted in the office, but the "permit" column had not been checked. He asked Patricia McFadden, his wife who was performing clerical work in the office, why no permit was required for the job. She told him that she had been told by someone at the Winter Park Building Department that one was not required. Mr. McFadden immediately telephoned the Winter Park Building Department to confirm that no permit would be required for the job. He spoke with Karen Clayton, who is the secretary of the Winter Park Building and Zoning Department and handles the issuance of permits, which may be ordered by telephone. Using a Roof Work Sheet dated January 7, 1987, Mr. McFadden described the job to Ms. Clayton. Ms. Clayton placed her hand over the telephone, checked with a nearby building inspector, and informed Mr. McFadden that no permit would be necessary. In fact, the scope of the job required the issuance of a building permit. Ms. Clayton testified that she did not understand at the time that she spoke with Mr. McFadden that an existing roof was being torn off. She also testified that she had not previously heard the phrase, ??90 pound reroofing felt,!? which Mr. McFadden used to describe the job. It is apparent that Mr. McFadden accurately described the job, but Ms. Clayton misunderstood the description and gave him the wrong advice. Without a permit, B & P Roofing, Inc. began the work on or about January 17, 1987, and completed the work in late January or early February, 1987. No inspection of the job was performed by the Winter Park Building Department during the job or immediately after its completion. After Petitioner commenced its investigation, B & P Roofing, Inc., at the investigator's suggestion, obtained a permit on June 30, 1987, and the job passed a final inspection performed on that date or shortly thereafter. Respondent was never aware of the Peterson job until after it had been completed.
Recommendation In view of the foregoing, it is hereby RECOMMENDED that a Final Order be entered dismissing the Administrative Complaint. ENTERED this 20th day of May, 1988, in Tallahassee, Florida. ROBERT E. MEALE 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 20th day of May, 1988. APPENDIX Treatment Accorded Petitioner's Findings Adopted, except that the last two sentences are rejected as unnecessary. Adopted. Rejected as irrelevant, except that the last sentence is rejected as against the greater weight of the evidence. Poor workmanship or improper materials is generally not probative of the issues whether Respondent deliberately or through improper supervision failed to obtain a permit or inspection. The only situation in which poor workman- ship or improper materials might be relevant would be if the workmanship or material so deviated from the norm that Respondent and the employees of B & P Roofing, Inc. knew that the job could never pass an inspection. The evidence failed to prove such a deviation in this case. The testimony of Julian Garcia, Petitioner's expert witness, tended to prove such a deviation, but ultimately failed because of the inadequate familiarity of the wit- ness with the specifics of the Peterson job, such as the degree of scope present in the flat areas of the roof and the specific roofing material used in these areas. Adopted in substance. Rejected as unnecessary. First sentence is adopted. Second sentence, although strictly speaking is true, is rejected to the extent that it implies that no inspection took place. Such an implication is against the greater weight of the evi- dence. Ms. Clayton's testimony explains the omission from the record. First, the building inspector whom Rich McFadden testified performed the inspection died shortly thereafter. Second, the inspector probably had no opportunity to record it before the file was closed because the inspection likely took place on the same day or within days of the closing of the file. Ms. Clayton's candid testimony in this regard offers little basis for inferring that the absence of a record entry means no inspection took place, especially in view of the positive testimony of Mr. McFadden that he accom- panied the inspector to the house for the final inspection. Adopted, except that two telephone contacts took place before the work began. Rejected as unnecessary and against the greater weight of the evidence. Mr. and Mrs. McFadden testified in detail to the circumstances surrounding why no permit was obtained. Against such detailed testimony, Respondent's questionnaire response is entitled to little weight. Adopted. Rejected as against the greater weight of the evidence. There was an insufficient predicate for much of Mr. Garcia's testimony for the reasons set forth in paragraph 3 above. 11-12. Adopted. COPIES FURNISHED: David L. Swanson, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 John Sunner, Esquire Post Office Box 1717 Casselberry, Florida 32707 Fred Seely Executive Director Construction Industry Licensing Post Office Box 2 Jacksonville, Florida 32201 William O'Neil General Counsel Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750
Findings Of Fact Respondent is Richard K. Willis, a registered roofing contractor licensed by Petitioner and holding license RC-0041275 at all times pertinent to these proceedings. His address of record is Winter Haven, Florida. Respondent and Jeffrey Smith entered into a contract in July of 1986. Under terms of the agreement, Smith, a chiropractor, agreed to pay Respondent the sum of $2,200 to re-roof the facility which served as Smith's home and office. The agreement signed by the parties contains a written guarantee that materials to be used in the project would meet specifications set forth in the document. Further, the guarantee stated that work would be completed in "a workmanlike manner according to standard practices." The project was completed by Respondent and Smith paid him the agreed upon amount of $2,200 in July of 1986. About three weeks after completion of the job, Smith noticed a leak in the roof and telephoned Respondent. Two or three weeks later and after several more telephone calls from Smith, Respondent returned to the job site. By that time, interior damage to the ceiling tiles had been sustained. The tiles became discolored by leaking water and started to collapse. Respondent proceeded to patch the leaking roof with tar. In June of 1987, Smith's facility developed a second leak in the roof over the back portion of the house. Respondent returned, reviewed the problem and agreed to tear off the leaking section of the roof and replace it. As a result of this action by Respondent, the leakage increased. More extensive damage was caused by water leaking down door frames and across the ceiling of the house. Respondent had also promised that he would put a "tarp" over Smith's roof to temporarily stop the leakage until repairs could be effected, but such covering never materialized. After Respondent's second attempt to fix the roof, Smith advised him that the leakage was continuing. Smith then tried several times without success to communicate with Respondent and get him to return to the job site. Finally, after Smith contacted local government building officials, Respondent returned and stopped the leakage. The repairs came too late to prevent ceiling damage which cost Smith $400 to repair. When a third leak developed in the roof in February of 1989, Smith hired another contractor to fix the leak for the sum of $60. Petitioner provided expert testimony which establishes that Respondent demonstrated incompetence in the practice of roof contracting. Further, the work performed by Respondent did not meet the terms of the guarantee he gave to Smith. These conclusions are based on the fact that workmanship provided by Respondent failed to meet standard practices of the industry. Such failure is demonstrated by the irregularity with which surface material was applied to the roof; the lack of sufficient gravel; the lack of uniform distribution of that gravel; missing metal flashing and lifted or separated flashing at the vertical surfaces of the roof; and improper installation of flashing around the plumbing vent exiting through the roof. Respondent's previous disciplinary history with Petitioner consists of an administrative fine of $250 on June 19, 1985, and letter of guidance issued on August 14, 1986.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that a final order be entered finding Respondent in violation of Subsection 489.129(1)(m), Florida Statutes, (1988) and revoking his license as a roofing contractor in accordance with provisions of Rule 21E-17.001, Florida Administrative Code. DONE AND ENTERED this 6th day of April, 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 6th day of April, 1989. APPENDIX The following constitutes my specific rulings, in accordance with Section 120.59, Florida Statutes, on findings of fact submitted by Petitioner. Petitioner's Proposed Findings 1.-17. Addressed in substance. COPIES FURNISHED: Elizabeth R. Alsobrook, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 Richard K. Willis 2106 Winter Lake Road Winter Haven, Florida 33880 Fred Seely, Executive Director Construction Industry Licensing Board Department of Professional Regulation Post Office Box 2 Jacksonville, Florida 32201 =================================================================
The Issue Whether Respondent committed the offenses set forth in the administrative complaint and, if so, the penalty which should be imposed.
Findings Of Fact At all times material to this case, the Respondent, Harry Bradshaw, was licensed as a registered roofing contractor in the State of Florida, holding license number RC 0033812. On August 26, 1986, Respondent's license as a registered roofing contractor was suspended by Petitioner. Respondent's license remained suspended at all times material to this case. On December 16, 1987, Respondent contracted with the Moose Lodge located in Hialeah, Florida, to reroof the Moose Lodge building. The proposal submitted by Respondent contained representations that Respondent was licensed as a registered roofing contractor and that he was insured. Respondent knew that his license as a registered roofing contractor was under suspension. Respondent had no insurance. The contract between Respondent and the Moose Lodge provided that Respondent would perform the work and supply the materials for the sum of $6,200.00. The sum of $3,200.00 was paid to Respondent in advance of his beginning the job. Respondent used the sums advanced to purchase materials and supplies. The remaining $3,000.00 was to have been paid upon Respondent's completion of the job. During the negotiations that resulted in the contract between Respondent and the Moose Lodge, Respondent represented that the job should be completed in time for the functions scheduled for New Year's Eve. While Respondent had purchased the materials needed for the job and had done a substantial amount of work on a portion of the roof, he was unable to complete the work by the New Year. Respondent was ordered to stop work on the job on January 26, 1988. Respondent did not abandon the job. Although he was slow in performing the work, a part of Respondent's delay in performance was caused by rain. There was no evidence as to what would have been a reasonable period of time for Respondent to have completed the job. On January 26, 1988, the administrator for the Moose Lodge complained to the Building Inspection Department for the City of Hialeah, Florida, because the administrator was not pleased with the progress that Respondent was making toward completion of the job. The administrator was told by a representative of the Building Inspection Department on January 26, 1988, that Respondent had no license and that the required permit had not been pulled. The administrator was told to prohibit Respondent from working on the roof. Immediately thereafter, the administrator instructed Respondent to do no further work on the roof. The members of the Noose Lodge completed the job started by Respondent for less than $3,000.00, the balance of the amount that would have been owed Respondent if he had finished the job. Respondent knew that a permit was required for this work. Respondent also knew that only a licensed roofing contractor could pull the required permit. Respondent proceeded with the job when he was unable to persuade a licensed roofing contractor to pull the permit for him. Petitioner filed an administrative complaint against Respondent alleging that at the time he contracted with the Moose Lodge, Respondent's license was suspended, thus violating the provisions of Section 489.129(1)(j), Florida Statutes, and the provisions of Section 489.127(1)(e), Florida Statutes. The administrative complaint also alleged that Respondent failed to perform in a reasonably timely manner and/or abandoned the job in violation of Section 489.129(1)(m), Florida Statutes, and Section 489.129(1)(k), Florida Statutes. Respondent denied the allegations of the administrative complaint and timely requested a formal hearing. This proceeding followed. Respondent was previously disciplined by the Construction Industry Licensing Board, and his license remained under suspension at the time of the final hearing.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that a final order be entered finding Respondent guilty of having violated Section 489.127(1)(e), Florida Statutes, and Section 489.129(1)(j), Florida Statutes. It is further recommended that the final order revoke Harry Bradshaw's license in the State of Florida as a registered roofing contractor. DONE and ENTERED this 31st day of October, 1989, in Tallahassee, Florida. CLAUDE B. ARRINGTON 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 October, 1989. COPIES FURNISHED: Harry Bradshaw 5590 East Seventh Avenue Hialeah, Florida 33013 David M. Gaspari, Esquire Adams, Coogler, Watson & Merkel, P.A Suite 1600 NCNB Tower 1555 Palm Beach Lakes Boulevard West Palm Beach, Florida 33402-2069 Kenneth E. Easley, General Counsel Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 Fred Seely, Executive Director Department of Professional Regulation Construction Industry Licensing Board Post Office Box 2 Jacksonville, Florida 32201
The Issue Whether or not Respondent engaged in gross negligence, incompetence, misconduct, and/or deceit in connection with the installation of a roof on a customer's home, either personally or by his failure to properly supervise the construction project and, if so, what, if any, administrative penalty should be imposed.
Findings Of Fact Petitioner, Construction Industry Licensing Board, is the state agency charged with the responsibility to regulate construction activities in Florida to include prosecuting administrative complaints filed pursuant to Chapters 489, 455 and 120, Florida Statutes, and the rules and regulations promulgated pursuant thereto. During times material hereto, Respondent, Norman Levinski, was licensed as a registered roofing contractor in the State of Florida, having been issued license number RC 0047656. At all times material hereto, Respondent was the licensed qualifying agent for All Bay Enterprises, Inc. On September 17, 1987, Respondent through the entity All Bay Enterprises, contracted with Opie and Elizabeth Tittle to remove and replace a built-up roofing system and shingle roof on the Tittle's residence located at 810 Audubon Drive, Clearwater, Florida. Respondent was paid the total contract price of $3280.00. Respondent completed the above roofing work on September 22, 1987. During the course of the work and after its completion, the Tittles continually expressed concern that the job was being done improperly and that they were not satisfied. Respondent made one attempt to correct the problems without success. Respondent dispatched a crew to the Tittle's home to try to remediate some problems on the roof; however, their efforts were unsatisfactory. Jack Hurlston, an expert in roofing, was retained by Petitioner to render an opinion on March 22, 1989. Hurlston visited the Tittle home and found numerous deficiencies in the roof. Specifically, Respondent failed to erect the Tittles' roof in conformity with the minimum standards of the Southern Building Code and usual industry standards in that there was insufficient lap at the joints in the eave drip, the starter course was nailed too high above the eave, shingles did not lay flat due to the use of improper asphalt, underlying felt was wrinkled and "telegraphed" through shingles, shingles were improperly nailed and three nails were used in each shingle as opposed to the customary four, as required by the manufacturer. No base flashing was used where shingles abutted, no plastic roof cement was placed around the electric riser to form a seal, the valley metal was cut too short and nailed too far from the center, the roof edges on the gable ends were nailed too far from the edge, exposed nails and cutout areas were observed. In the built-up roof, the aluminum coating was applied too soon after the base roof was installed and was therefore insufficient to provide either weather protection or heat reflection. W.L. Albritton, who was received as an expert in roofing, was retained by the Tittles to inspect the roofing job completed by Respondent. Albritton's inspection revealed the following deficiencies: Starter course shingles were uneven, in that they were nailed from 1 3/4" to 3" inches to the edge of the eave drip. Additionally, some nails in the starter course were found at the cutout (water course) of the first weather course of shingles at the eave. Discoloration was noted along the top edge of the fascia, but below the bottom of the drip edge, suggesting that a 1" x 2" wood drip strip was removed by Respondent and was not replaced. The metal drip edges were nailed at approximately 18" on center and 8" to 10" nail spacing is usual and customary in the roofing industry. The horizontal alignment of the shingles was uneven. The shingle roof was not installed according to the manufacturer's specifications and therefore did not conform with the Southern Standard Building Code. The specific deviations from the manufacturer's specifications are as follows: The manufacturer requires that two layers of number 15 asphalt saturated felt be installed in shingle fashion on roofs below 4:12, such as the Tittle's roof. Respondent here installed one layer of number 30 felt on the Tittle's roof. Next, the manufacturer requires the drip edge metal to be installed under the felt at the eaves of the roof or if installed on top of the felt at the eaves, that roof cement and felt stripping be applied over the roof end of the drip edge metal. Respondent installed the drip edge on the top of the felt at the eaves and did not strip, the roof over the roof end. The manufacturer recommends nail spacing of 8" to 10" for anchoring drip edge metal, whereas Respondent anchored the drip edge metal at 18" on center. The Standard Building Code requires an end overlap of 1 1/2" on metal edge flashing, whereas Respondent overlapped the end joist 1/2" at most end joints. The manufacturer specifies that close cut valleys should be nailed no closer than 6" to the center life of the valley and that the cut side shall be trimmed a minimum of 2" above valley center lines, whereas Respondent nailed to within 4" of the valley center line and the cut shingle edge was made at the valley's center line. The manufacturer requires four nails in each shingle, whereas Respondent nailed some shingles with only three nails and placed nails too close to water cutouts and placed some nails as high as seven inches above the bottom edge of the shingle. Next, the manufacturer requires that sufficient shingles be installed at pipe penetrations so that it will be necessary to cut a hole in one shingle to fit over or around the pipe before installing the pipe flashing, whereas Respondent failed to install sufficient shingles before installing the pipe flashings, and the flashings, as installed, are more susceptible to water leakage. Respondent slit the face of the metal drip edge and failed to provide backup protection for the fascia creating a situation that will promote rotting of the fascia. Respondent installed the shingles over wrinkled felt, underlayment and the wrinkles in the underlayment are "broadcasting" through the shingles, which creates a rough appearance to the entire roof and cannot be corrected without complete removal of the roof. The ply sheets on the flat roof specified by Respondent was to be of a 3-ply application, whereas it measures between 11" and 12" between edges of the sheets. Respondent therefore did not apply a full three plies on the flat roof. The Standard Building Code requires 1 1/2" overlap on edge joints of drip metal, whereas Respondent installed the drip edge metal with overlap and joints ranging from 3/4" to 3 1/4". Respondent failed to provide sufficient felt stripping over the roof flange of the metal drip edge at the rake edge of the flat roof. Respondent did not install the ply sheets using full moppings of asphalt and pi' is occurring at the edges of the ply sheets. Respondent installed shingles too low onto the flat roof, did not use a starter course of shingles, the felt underlayment is exposed between the cutouts and solar radiation is likely to degrade the felt underlayment. Additionally, the roof will be prone to leakage at such locations. Respondent failed to install flashing where required, used old flashing when new flashing was promised and failed to close openings that would allow wind-driven water to leak into the interior of the Tittles residence and/or the roof.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that: 1. Petitioner, Department of Professional Regulation, Construction Industry Licensing Board, enter a Final Order imposing an administrative fine against Respondent in the amount of $500.00 and suspending his license for a period of six (6) months. 1/ DONE and ENTERED this 15th day of February, 1990, in Tallahassee, Leon County, Florida. JAMES E. BRADWELL Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 15th day of February, 1990.
The Issue Whether the Respondent aided and abetted an unlicensed contractor by obtaining a permit for a roofing job performed by the unlicensed contractor; Whether the work on the job failed to fully comply with the local building codes; Whether the Respondent gave a guarantee on the job and thereafter failed to reasonably honor the guarantee; and Whether Respondent failed to properly supervise the job site activity.
Findings Of Fact At all times material to this action, Respondent was licensed by the Construction Industry Licensing Board as a registered roofing contractor, holding License No. RC0030450. Carol Kilgore is the daughter of Beula Relihan, who owns a rental home located at 207 East Selma in Tampa, Florida. Mrs. Relihan is 86 years old, and for several years Mrs. Kilgore has been managing the property. In early 1987, Mrs. Kilgore was involved in obtaining estimates to replace the roof at the rental home. After obtaining estimates from contractors listed in the yellow pages, which Mrs. Kilgore felt to be high, Mrs. Kilgore responded to an advertisement for roofing work located in the Money Saver. She called the number listed in the advertiser, talked to Leroy Rison, and asked him to come to the house and give her an estimate. On or about February 26, 1987, Leroy Rison and his nephew, Gary Terrell, visited Mrs. Kilgore after looking at the job site, and wrote out an estimate for replacing the roof of $1,650.00. Mr. Terrell wrote the proposal which reflected the work to be done, the price, and the proposed beginning and finishing date. However, before any contract was entered into, Mrs. Kilgore discovered that neither Rison or Terrell were licensed contractors. She explained that she wanted only a licensed contractor who could pull the permit to perform the work. Although Mr. Terrell and Mr. Rison are willing to work for a homeowner if the homeowner will obtain the permit, Mrs. Kilgore insisted that she wanted a licensed contractor. Therefore, Mr. Rison recommended the Respondent, and later called the Respondent to advise him of the job. The next day, February 27, 1987, Respondent met Mrs. Kilgore and wrote a contract proposal on a form with a printed heading "MacDill Roofing", to which in handwriting was added "& Services." Respondent operates under the name of, and is the qualifying agent for, MacDill Services. The contract prepared by the Respondent merely copied the proposal submitted by Terrell and Rison, including the same price and the same misspelled words. The contract was accepted and signed by Ms. Kilgore's mother. Mrs. Kilgore paid Respondent $650.00, with the balance to be paid upon successful completion of the contract. Work was scheduled to begin the following day, Saturday, February 28, 1987 and be completed by Monday, March 2, 1987. The following Saturday work began. Respondent obtained the permit for the job, and apparently purchased the materials and had them delivered. Leroy Rison worked on the job and hired the laborers. Gary Terrell also worked on the job. One of the men Rison hired, Earl, worked for a roofing company during the week but did not have a license. Mr. Rison could not remember the name of any of the other men who worked on the job. Leroy Rison was not an employee of MacDill Roofing or MacDill Services, but he had worked for Respondent on other occasions. Although Respondent contends that he went by the job site on three or four occasions, staying at the job site between 1 and 2 hours on each occasion, his testimony is not credible. Charles Doty, who was the tenant in the rental home, had received a leg injury which forced him to stay home during this entire period of time. The only time Mr. Doty was gone was for an hour and half on Saturday to attend a therapy session. Mr. Doty never saw Respondent on the job site, although he had heard Respondent's name mentioned by Mr. Rison. Mrs. Kilgore also visited the job site on several occasions and she never saw the Respondent at the job site. Respondent simply did not supervise the job site activities. On March 3, 1987, the roof was scheduled for final inspection by the building department. Mrs. Kilgore went to the house to wait for the building inspector. After several hours, she left to get a soft drink. She was gone only five minutes, but when she returned, she discovered that the building inspector had come and gone, and a "green tag", indicating that the house had passed inspection, had been left on the porch. Mrs. Kilgore was very upset because she felt that the roofing work had not been done properly. She went to the building supervisor at City Hall and asked him if he could send the inspector back to the house so that she could point out the problems. The building supervisor agreed to send the inspector back to the house. The building department inspector was Terry Scott. On March 3, 1987, Mr. Scott had approximately 20 or 25 inspections to do. When he first went to the house he just looked around quickly and left a green tag. He admitted that a thorough inspection was only done if a homeowner complained. When Mr. Scott returned to the house on March 3, 1987, he still did not do a thorough inspection. However, he did issue a "red tag" which listed certain deficiencies that would have to be corrected before the roof could pass inspection. The red tag required that the contractor "replace bad wood where needed and install drip-edge where needed." Normally, when a red tag is issued, the contractor corrects the deficiency and calls for another inspection. That did not occur in this case. On April 9, 1987, Inspector Scott met Mr. Park at the job-site to discuss problems with the roof. On that day, a more thorough inspection was performed. Another red tag was issued and the following deficiencies were noted: "Bad wood not replaced--Wall flashing not properly installed. Flashing around chimney not proper--Felt under drip-edge." Respondent did not correct these deficiencies and never called for another inspection. The permit expired without the roof being approved by final inspection. Although not all the deficiencies noted in the inspection constitute code violations, the Tampa Building Code does require that rotten wood be replaced and the contract specified that the rotten decking would be replaced. Nevertheless, after Respondent completed the job, rotten wood remained in place. The replacement of the rotten wood was noted in both red tags. Respondent never attempted to correct this deficiency. On the day the property initially passed inspection, March 3, 1987, Respondent called Mrs. Kilgore and requested the remaining $1,000 owed on the contract price. Mrs. Kilgore refused to pay the Respondent since she was dissatisfied with the work and the first red tag had issued. At some point, apparently after the red tag issued in April, Respondent decided that he was not going to get any more money from Mrs. Kilgore. Other than asking for the money on March 3, 1987, Respondent has not attempted to collect the remainder of the money from Ms. Kilgore; however, he has also not attempted to correct the code violations and other deficiencies. Since Respondent did not collect the remainder of the money owed, Respondent did not pay Leroy Rison, and Mr. Rison did not pay the laborers who performed the work. As the contractor on this job, Respondent had full responsibility for ensuring that the work was done properly and that the roof passed final inspection. Respondent failed to supervise the work on the job, and the re- roofing was not done in a workmanlike manner. In essence, Respondent abdicated his responsibilities as the contractor on the job, and allowed the work to be performed by unsupervised unlicensed persons. The roofing material used was supposed to be fiberglass shingle guaranteed for 20 years. There was no evidence presented that something other than the material specified was used or that the shingles were not installed in accordance with the manufacturer's specifications. The roof did not leak after the work was completed. No evidence relating to a guarantee, other than the guarantee related to the shingles, was presented. Respondent has previously been disciplined by the Construction Industry Licensing Board. On September 10, 1986, a 61 paragraph Administrative Complaint was filed against Respondent which alleged, among other things, willful violation of local law; failure to qualify a firm through which he was operating; gross negligence, incompetence, misconduct, fraud, or deceit in the practice of contracting; failure to discharge supervisory duties as a qualifying agent; and aiding and abetting an unlicensed person to evade the provisions of Chapter 489. On March 26, 1987, Respondent signed a stipulated settlement with the Department of Professional Regulation admitting to all the allegations set forth in the Administrative Complaint. The stipulated disposition was that Respondent's licensure would be suspended for two years and indefinitely thereafter until an administrative fine in the amount of $3,000 was paid. The stipulation was adopted by Final Order of the Construction Industry Licensing Board rendered June 9, 1987.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered revocation of Respondent's license as a registered roofing contractor. DONE and ORDERED this 25th day of October, 1988, in Tallahassee, Florida. DIANE A. GRUBBS Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 FILED with the Clerk of the Division of Administrative Hearings this 25th day of October, 1988. APPENDIX The following constitutes rulings on the Petitioner's Proposed Findings of Fact. 1.-4. Accepted, generally except the date of February 26, 1987 appears to be the appropriate date, rather than February 7, 1987, in that the estimate from Larry Rison was obtained one day before the contract was entered into with Respondent. Accepted, generally. Accepted as true, but unnecessary and irrelevant, since Rison and Terrell did not enter into a contract for the job. 7.-14. Accepted. 15. Accepted as true; however, the last two sentences were considered unnecessary. 16.-19. Accepted, generally. First sentence accepted, sentences two and three rejected as irrelevant to the issues in this case. Rejected as redundant and for the reasons set forth under Proposed Finding of Fact No. 6. First sentence rejected as not supported by the evidence, second sentence accepted, except as to Respondent's intent. Third and fourth sentences accepted in general. COPIES FURNISHED: Belinda H. Miller, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 Francis A. Park 6109 South MacDill Avenue Tampa, Florida 33611 Lawrence A. Gonzalez Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 Bruce D. Lamb, Esquire General Counsel Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 Fred Seely Executive Director Construction Industry Licensing Board Department of Professional Regulation Post Office Box 2 Jacksonville, Florida 32201
