Findings Of Fact Petitioner was registered by the State of Florida as a roofing contractor in October 1976, and this registration remained in effect until it expired June 30, 1977. It has never been renewed. Subsequent to obtaining his registration, Respondent gave up his business and started working for another licensed roofing contractor. Not having need for his license, the Respondent did not renew his registration when it expired in 1977. In 1984, Respondent agreed to replace the roof on the residence of Mr. and Mrs. Snow in Sarasota. Mr. Snow is a friend of Respondent's brother and Respondent and Snow agreed the former would do the job for $5,000. Respondent guaranteed the roof for two years. Snow paid the $5,000 for which he had contracted and Respondent replaced the roof. At the time this work was done Respondent held an active license in Sarasota County (Exhibit 9) but was not licensed by the City of Sarasota when he replaced the roof on Snow's residence. Nor did Respondent first obtain a building permit from the City of Sarasota required for the roofing job. After the work was completed Snow became unhappy with the roofing job and Mrs. Snow wanted more gutters added. Respondent had replaced the gutters and drains. He added forty feet of gutter to the rear of the house to replace the ten feet of gutter he removed. He also replaced the drains but, Mrs. Snow was not satisfied. Following the repair, a leak showed up and the Respondent was called to fix it. Upon inspecting the roof and the leak, Respondent concluded the leak was coming from the screen room over the pool and was not from an improperly laid roof. Snow complained to the Sarasota Building Inspection Department who investigated and preferred charges of alleged violation against Respondent for failure to obtain a permit and for working in Sarasota without a city license. Criminal charges were also brought against Respondent for doing the roof work on Snow's residence without having an occupational or city contractor's license to do so. Respondent was found guilty of this charge and placed on probation. Respondent subsequently applied for and was issued a City of Sarasota license as a roofing contractor and obtained a permit for the roofing job on the Snow's residence. A final inspection by Sarasota Building Department concluded the work was done in full compliance with Sarasota Code. Respondent readily acknowledges that he did not have, initially, a valid license when he did the Snow's roof, that he failed to obtain a permit for this job, and all other charges, except that involving an improperly installed roof.
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 Based on my observation of the witnesses and their demeanor while testifying, the documentary evidence received and the entire record compiled herein, I hereby make the following Findings of Fact: At all times relevant hereto, the Respondent, Rex Alaniz, held a registered roofing contractors license, Number RC 0042021, issued by the State of Florida, Construction Industry Licensing Board (hereinafter "the Board"). The Respondent's registered address with the Board was initially 1813 Ocean Drive, Jacksonville, Florida, then changed to 23 Seatrout, Ponte Vedra Beach, Florida. The Respondent's license reflected that he was doing business as "Rex Alaniz Roofing and Remodeling Company." During June 1984, the Respondent was doing business as Alaniz & Sons Roofing Company," a name unregistered and unqualified with the Board. Ms. Audrey Kelly met the Respondent through an as placed in the "Westside Shopper," and advertising newspaper in Jacksonville. The ad stated in part as follows: "Raindrops falling on your head? . . . labor guaranteed . . . State Licensed. . . Alaniz & Sons Roofing Company. Rex Alaniz 246-0265 if you have a leak and cannot sleep, check the rest and then get the best for less. . ." Ms. Kelly called the number listed in the advertisement and met with Buddy Clark on June 5, 1984. Mr. Clark stated that he represented Alaniz & Sons Roofing Company. After Mr. Clark looked at Ms. Kelly's roof, Ms. Kelly signed a contract for the repairs to be completed. The contract provided in part that Alaniz and Sons Roofing Company would repair and seal all exposed areas in the roof and that a one year guarantee on workmanship was included. The total contract price was $735. Ms. Kelly paid Clark $200 as an initial payment on the contract. On June 7, 1984, Respondent went to Ms. Kelly's home to repair the roof. After working approximately two and one-half hours, Respondent told Ms. Kelly that he had repaired the roof. Kelly then paid Respondent the balance of $535 which remained on the contract. On June 19, 1984, a light rain fell on Jacksonville and Ms. Kelly's roof leaked again. Ms. Kelly contacted Respondent and Respondent told her that she should wait until it rained harder so that any additional leaks could be repaired at one time. About three weeks later, a heavy rain fell and the roof leaked a lot. After the heavy rain, the Respondent went out and looked at the roof but did not perform any work on it. Respondent told Kelly that the problem was wind damage and suggested that Kelly contact her insurance company. An inspection by Ms. Kelly's insurance company revealed no wind damage to the roof. Therefore, Kelly repeatedly called Respondent, reaching his answering service, but Respondent did not return her calls. The roof continued to leak until Kelly hired another roofer who replaced the entire roof. Ms. Kelly complained to the State Attorney's office about Respondent's failure to honor the warranty on the contract. In April 1984, Mr. Otis McCray, Jr. discovered three leaks in the roof of his home and called Rex Alaniz. The Respondent went out and looked at the roof and informed Mr. McCray that he could fix it. On April 28, 1984, Mr. McCray entered into a contract with Respondent to repair the three leaks in the roof for a price of $500. A one year guarantee was included in the contract. Approximately one week after the contract was signed, Respondent told McCray that the roof had been repaired. McCray then paid Respondent the full contract price of $500. After a rainfall which occurred during the week following the completion of the repair work, McCray noticed that all three of the areas were leaking again. Thereafter, McCray called the Respondent's office approximately 5 or 6 times, leaving messages with either the receptionist or Respondent's answering service concerning the leaks. McCray also had his wife telephone the Respondent, thinking that perhaps the Respondent would respond to "a woman's voice." The Respondent failed to return any of McCray's calls and failed to return to fix the roof. Mr. McCray ultimately hired someone else to put a new roof on his home. In February 1986, the Respondent entered a negotiated plea to the offense of schemes to defraud in the Circuit Court of Duval County, Florida. The failure to properly perform the repairs and honor the promised warranties in the Kelly and McCray projects were included as a part of the offenses charged. The Respondent was ordered to pay restitution to Ms. Kelly and Mr. McCray. As of the date of the hearing, the Respondent had not made restitution to either Mr. McCray or Ms. Kelly. Douglas Vanderbilt, an investigator for the Department of Professional Regulation, attempted to serve papers upon the Respondent in November of 1985. During such attempt to serve the Respondent, Mr. Vanderbilt discovered that Respondent was no longer living at 23 Seatrout Street in Ponte Vedra Beach and had moved from that address approximately two years prior to November of 1985. At no time material hereto, did Respondent report to the Board a change of address from 23 Seatrout Street, Ponte Vedra Beach. The Respondent has been disciplined by the Board for misconduct twice in the recent past. On November 15, 1984 final action was taken by the Board to suspend Respondent's license for one year, effective January 2, 1985. On November 7, 1985, final action was taken by the Board to suspend Respondent's license for ninety days, consecutive to the one year suspension effective January 2, 1985.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law it is, therefore, RECOMMENDED THAT a final order be issued requiring Respondent to pay an administrative fine of $1,000 and suspending Respondent's license for a period of five (5) years from the date of the Final Order in this case. Provided, however, that said suspension will be terminated early without further action by the Board, at any time that Respondent shall both pay said fine and provide written proof satisfactory to the Board's Executive Director of having paid restitution of $500 to Otis C. McCray, Jr. and $735.00 to Audrey L. Kelly. DONE and ORDERED this 6th day of August, 1986 in Tallahassee, Leon County, Florida. W. MATTHEW STEVENSON, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 6th day August, 1986. COPIES FURNISHED: Lagran Saunders, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Rex Alaniz 1612-5th Street, South Jacksonville, Florida 32250 Fred Seely Executive Director Construction Industry Licensing Board Department of Professional Regulation P. O. Box 2 Jacksonville, Florida 32201 Fred Roche Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Salvatore A. Carpino, Esquire General Counsel 130 North Monroe Street Tallahassee, Florida 321301 APPENDIX The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on all of the Proposed Findings of Fact submitted by the parties to this case. Rulings on Proposed Findings of Fact Submitted by the Petitioner Adopted in Finding of Fact 1. Adopted in Finding of Fact 3. Adopted in Findings of Fact 9 and 10. Adopted in Finding of Fact 10. Adopted in Finding of Fact 11. Adopted in Finding of Fact 11. Adopted in Finding of Fact 11. Adopted in Finding of Fact 12. Adopted in Finding of Fact 12. 10. Adopted in Finding of Fact 12. 11. Adopted in Finding of Fact 5. 12. Adopted in Finding of Fact 5. 13. Adopted in Finding of Fact 5. 14. Adopted in Finding of Fact 6. 15. Adopted in Finding of Fact 6. 16. Adopted in Finding of Fact 6. 17. Adopted in Finding of Fact 7. 18. Adopted in Finding of Fact 7. 19. Adopted in Finding of Fact 7. 20. Adopted in Finding of Fact 7. 21. Adopted in Finding of Fact 8. 22. Adopted in Finding of Fact 8. 23. Adopted in Finding of Fact 8. 24. Adopted in Finding of Fact 8. 25. Adopted in Finding of Fact 8. Adopted in Finding of Fact 13. Adopted in Finding of Fact 13. Adopted in Finding of Fact 13. Adopted in Finding of Fact 13. Rulings on Proposed Findings of Fact Submitted by the Respondent (None submitted) ================================================================ =
The Issue Whether Respondent, Glenn V. Curry, committed the offenses alleged in the Administrative Complaint and, if so, what discipline should be imposed against Respondent's roofing contractor's license.
Findings Of Fact At all times pertinent to this proceeding, Respondent, Glenn V. Curry, was a certified roofing contractor having been issued license C-3810. During times material hereto, Respondent was the qualifying contractor for Economic Roofing Company, 2538 Surinam Court, Holiday, Florida. On or about December 27, 1995, Connie Socash, an investigator with the Pinellas County Construction Licensing Board, observed two individuals performing roofing work on the structure located at 2024 Cleveland Street in Pinellas County, Florida. Adjacent to the Cleveland Street property was a truck from which the individuals were working. Affixed to the truck was a magnetic sign with the words "Economic Roofing" printed on it. When approached by Ms. Socash, the two people performing the roofing work stated that they were subcontractors for Economic Roofing. One of the individuals performing the roofing work identified herself as Bonnie Sargent. However, neither of the individuals provided Investigator Socash with a roofing contractor's license or license number. After determining that Petitioner had not issued a roofing contractor's license to Bonnie Sargent, Investigator Socash issued a citation to the person identifying herself as Bonnie Sargent. The citation was issued to Ms. Sargent for subcontracting and performing "roofing work without a competency license as required by law." The citation, which was signed by Ms. Sargent, listed the following two options that were available to her: (1) pay a fine of $125.00 within a specified time period; or (2) appear at the Pinellas County Misdemeanor Courthouse on January 19,1996. Ms. Sargent chose the first option and paid the fine of $125.00 on or about January 9, 1996. After issuing the citation to Bonnie Sargent, Investigator Socash contacted Respondent regarding the Cleveland Street roofing project. Respondent refused to cooperate with Investigator Socash and failed to provide her with any information regarding the relationship of Bonnie Sargent to Economic Roofing. Prior to this case, Respondent has not been the subject of any disciplinary action by the Pinellas County Construction Licensing Board.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Pinellas County Construction Licensing Board enter a Final Order: Finding Respondent, Glenn V. Curry, guilty of violating Section 489.129 (1) (e), Florida Statutes, and Chapter 89-504, Section 24 (2) (d), (e), (j), and (m), Laws of Florida as alleged in the Administrative Complaint. Imposing an administrative fine of $750.00. Suspending Respondent's roofing contractor's certificate for one year. Such suspension may be stayed subject to terms and conditions prescribed by the Pinellas County Construction Licensing Board. DONE and ENTERED this 27th day of August 1996, in Tallahassee, Florida. CAROLYN S. HOLIFIELD Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 27th day of August, 1996. COPIES FURNISHED: William J. Owens Executive Director Pinellas County Construction Licensing Board 11701 Ulmerton Road Largo, Florida 34643-5116 Glenn V. Curry 2538 Surinam Court Holiday, Florida 34691 Howard Bernstein, Esquire County Attorney's Office 315 Court Street Clearwater, Florida 34616-5165
The Issue Whether Respondent committed the offenses set forth in Count I of the Administrative Complaint and, if so, the penalties which should be imposed.
Findings Of Fact At all times pertinent to these proceedings, Respondent was licensed by Petitioner as a certified general contractor in the State of Florida and held license number CG- C016730. At all times pertinent to these proceedings, Respondent was the qualifying agent for Bilo Homes, Inc. (Bilo), a corporation engaged in Florida in the business of general contracting with its principal place of business in Miami, Florida. At all times pertinent to these proceedings, Mr. and Mrs. Donald Huston resided at 29843 S.W. 149th court, Leisure City, Florida. On February 24, 1988, the Hustons contracted with Bilo to build an addition to their house for the sum of $20,000 pursuant to plans and specifications that had been prepared by an architect. The Hustons' existing house was valued between $30,000-$40,000. The contract called for a one-story room addition to be built on a concrete slab with stucco exterior and sheet rock interior. The addition was to have a sliding glass door and was to be connected to the existing structure by a tie beam. The roof of the existing house was to be reshingled to match the shingles on the addition. The project also involved electrical work and plumbing work. The contract was signed on Wednesday, February 24, 1988, and work began on Friday, February 26, 1988. The contract did not specify a time for the completion of the project. The following draw schedule was agreed to by the Hustons and Bilo: 20% of the contract price upon the acceptance of the contract by the Hustons; 10% of the contract price upon the pouring of the concrete slab; 10% of the contract price upon ice completion of the tie beam: 20% of the contract price upon the drying in of the roof; 10% of the contract price upon the completion of the rough mechanical work; 10% of the contract price upon ice completion of the shingling of the roof; 10% of the contract price upon the installation of the plumbing fixtures;; 10% of the contract price (the balance) upon completion of the job. The Hustons made payments to Bilo in the total amount of $14,000.00. These payments were broken down as follows: $4,000.00 paid on February 24, 1988, upon acceptance of the contract; $2,000.00 paid on March 22, 1988, upon the pouring of the concrete slab; $2,000.00 paid on April 5, 1988, upon the completion of the tie beam; $4,000.00 paid on April 18, 1988, upon the drying in of the roof; and $2,000.00 paid on June 25, 1988, upon the completion of the shingling of the roof. Before June 25, 1988, Respondent had asked the Hustons for the draw due upon completion of the rough mechanical work in addition to the draw due upon completion of the shingling. The Hustons refused to pay both draws because they were dissatisfied with the quality of Bilo's work. The Hustons engaged the services of a lawyer and, on June 29, 1988, presented Respondent with a list of items they wanted corrected before paying the draw for the rough mechanical work. Respondent and the Hustons disagreed as to when the items on the list should be corrected. Respondent contended that the items could have been corrected as part of the punch list prior to the final payment. The Hustons contended that the items should be corrected before Respondent received any further draws. This dispute is resolved by finding that while several of the items on the list could have been corrected as part of the final punch list, there were items on the list that should have been corrected by Respondent before he proceeded. Considering the very poor quality of work that went into this job, the Hustons were justified in their demand that Respondent make these corrections before receiving an additional draw. Respondent contends that the Hustons did not pay the draw for the rough mechanical work because they ran out of money. This contention is rejected as being contrary to the greater weight of the evidence. After the Hustons presented Respondent with the list and refused to pay the draw for the rough mechanical work, Bilo stopped work on the project. Bilo performed no work on the project after June 29, 1988. Prior to the work stoppage, Respondent hired K & H Plumbing as the subcontractors to the plumbing work on the Huston job. K & H Plumbing's work failed to pass a Metro Dade County tub and water pipe inspection because the work did not meet the South Florida Building Code. K & H never completed its work on the Huston addition and no final inspection of its work was approved. K & H Plumbing filed suit against the Hustons for the unpaid portion of their contract with Bilo. In addition, K & H Plumbing failed to properly replace wood decking which it had pulled up during the course of its work on the Huston job. Respondent had received funds which1 should have been used to pay K & H. Prior to the work stoppage, Respondent hired Tom Mentelos to perform the electrical subcontracting work on the Huston addition. The work performed, by Mentelos was substandard. His work failed to pass inspection by the Metro Dade County Building and Zoning Department on six different occasions. In addition to this substandard work, one of Mentelos' employees cracked the Huston's kitchen ceiling while working in the attic over the existing portion of the house. This crack was never corrected by Mentelos or by Bilo. Mentelos never completed his work on the Huston addition, although he was never fired by the Hustons. Mentelos filed a claim of lien against the Hustons in he amount of $2,000.00. The first claim of lien was released and Mentelos filed a second claim of lien against the Hustons in the amount of $2,623.00. Respondent had received funds which should have been used to pay Mentelos. Respondent obtained the roofing permit to build the new roof on the Huston addition and to reroof the existing roof. The roofing work involved a process commonly referred to as "hot mopping", a process which requires the services of a licensed roofing contractor. Respondent exceeded the scope of his licensure by engaging in hot mopping. Bilo's employees punched two unnecessary vent pipes through the roof and placed a flat piece of PVC material around the vent holes to keep the, roof from leaking. This is an improper and unacceptable construction practice. Bilo's employees damaged the existing screen porch while working on the roof. The metal flashing which connected the existing roof to the aluminum screen porch was taken off but was never replaced. As a result, the screen porch leaked, a problem that had not been corrected as of the time of the final hearing. While Bilo's employees were working on the roof of the existing structure, a rainstorm occurred which resulted in water stains to the ceiling of the Hustons' main structure. The workmen were not supervised by Respondent and were unprepared for the rain. Other than the water stains, no damage was done to the ceiling. To repair the ceiling stains would require a chemical coating, followed by repainting of the ceiling. The cost of the repair would be approximately $75.00. Bilo engaged in poor construction practice in constructing the exterior wall by facing the poorer grade side of the exterior plywood toward the outside as opposed to inside. The better construction practice is to place the poorer grade side toward the inside where it will not be exposed to view. There is a gap in the area where the metal flashing comes down the exterior side of the end gable and meets the top of the roof. In the work performed by Bilo, the piece of sheathing was above the bottom of the sill plate which caused a gap from one inch to five inches over a distance between eight and ten feet. This gap is a source of potential leaks. Bilo attempted to cover the v-notch in the area of the gag with tar pitch in an attempt to correct this deficiency. Both the gap and the attempted repair are unacceptable construction practices. Bilo had not cut vents in the soffits at the time it stopped work on the project. Without vent holes in the soffits, the job would have not passed inspection. Bilo could have, at little expense, cut the soffit vents at a later point in the job. The end member of the frame for the partition wall between the laundry room and the masonry wall is not pressure- treated wood. The South Florida Building Code requires that the wood used for the end member of such construction be pressure treated or that there be a barrier between the end member and the adjoining wall. Here, Bilo failed to exercise either acceptable option, and, consequently performed work that failed to comport with acceptable construction practices and did not meet code. The manner in which Bilo supported the timber girder that supports the roof trusses fails to meet code because the tie beam, into which this girder is pocketed for support, is improperly supported. A hole was knocked in the cement block wall that supported the tie beam when a plumbing vent was redirected. As a result of this hole, the tie beam rests on only approximately two inches of concrete, which is inadequate to support the tie beam and the timber girder. This work fails to comport with acceptable construction practices. Bilo failed to brace the roof trusses as required by the plans and specifications of the architect. This is an unacceptable construction practiced. Bilo cut into the roof truss without authority from the truss manufacturer or from a qualified engineer. Cutting into a truss can impair its structural integrity and is a violation of code. Respondent maintained at hearing that he would have been able to get approval from the truss manufacturer for the modification of the truss caused by the cut. Respondent did not have such approval as of the time of the final hearing, and there was no evidence, other than his unilateral expectation, to support this contention. The facia board on the eaves did not join properly because Bilo's workmen did not take the time to properly cut the boards with the aid of a square. Although this is a matter that could be corrected for approximately $25.00, this work, along with the other deficiencies detailed herein, demonstrates the substandard work that went into this project and establishes that Bilo failed to provide its workmen adequate supervision or adequate training. At hearing, there was a dispute as to how much time Respondent personally spent at the Huston job site. This conflict is resolved by finding that Respondent was personally on the job site for at least 30 minutes on days when work was progressing. When major items were being performed on the job, he spent more time on the job site. When minor work was being done, Respondent did not go to the job site on a daily basis. Regardless of the number of minutes or hours that Respondent spent on the job site, the conclusion is inescapable that Respondent failed to properly supervise his workmen in light of the low level of skill the workmen exhibited throughout the job. Respondent had the responsibility as the general contractor to properly supervise his workmen and his subcontractors. He failed to perform that responsibility. As of the final hearing, the Huston addition remained uncompleted. At the time of the work stoppage, it would have cost the Hustons more than $6,600 to complete the job, the difference between the contract price and the amount that the Hustons had paid Respondent. The evidence was clear that the Hustons had incurred damages as a result of their dealings with Respondent. The amount of those damages were not established with any degree of certainty. On or about July 15, 1988, Respondent filed a claim of lien against the Hustons' property claiming that Bilo was owed $8,350 for the work that had been done. Respondent has been a certified general contractor for fifteen years and has been certified as a general contractor in the State of Florida since 1980. Respondent's licensure had not been disciplined prior to the filing of the Administrative Complaint in this proceeding.
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 the provisions of Section 489.129(1)(h), (j), and (m), Florida Statutes, which imposes administrative fines in the amount of total amount of $5,000 for such violations, and which suspends his licensure as a general contractor for a period of six months. DONE AND ENTERED this 20th day of June, 1990, in Tallahassee, Leon County, 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 20th day of June, 1990. APPENDIX TO THE RECOMMENDED ORDER IN CASE NO. 89-0765 The following rulings are made on the proposed findings of fact submitted by Petitioner: The proposed findings in Section VI (A) are adopted in material part except to the extent that the proposed findings are subordinate to the findings made. (Section VI (A) pertains to facts established through Respondent's failure to respond to Request for Admissions.) The proposed findings in paragraphs 1 2, 3, 4, 14, 15, 16, 17, 18, 21, 22, 23, and 24 are adopted in material part. The proposed findings in paragraphs 5 - 10 are adopted in material part except to the extent that the proposed findings are subordinate to the findings made or are unnecessary to the conclusions reached. The proposed findings of paragraphs 11, 19, and 25 are adopted in material part except to the extent that the proposed findings are unnecessary to the conclusions reached. The proposed findings of paragraph 12, 26, and 27 are rejected to the extent that the proposed findings are conclusions of law. The proposed findings of fact in paragraphs 13 and 20 are rejected as being subordinate to the findings made or as being unnecessary to the conclusions reached. The following rulings are made on the proposed findings of fact submitted by Respondent: The proposed findings of fact in paragraphs 1, 2, 3, 4, 6, 7, 8, 13, 16, 18, 19, 27, and 30 are adopted in material part. The proposed findings of fact in paragraphs 5, 17, 20, 21, 22, 23, 25, 26, 28, 29, 30, and 32, are rejected as being unnecessary to the conclusions reached. The proposed findings of fact in paragraphs 9 and 11 are rejected as being subordinate to the findings made. The proposed findings of fact in paragraph 10 are adopted in part and are rejected in part as being contrary to the findings made. The proposed findings of fact in paragraphs 12, 14, 33, 35, and 37 are rejected as being contrary to the greater weight of the evidence. The proposed findings of fact in paragraph 15 are adopted in part and are rejected in part as being unsubstantiated by the evidence. The proposed findings of fact in paragraph 24 are adopted in part and are rejected in part as being unnecessary to the conclusions reached. The proposed findings of fact in paragraph 34 are rejected as being the recitation of testimony. COPIES FURNISHED: regory A. Victor, Esquire 3225 Aviation Avenue Suite 400 Miami, Florida 33133 Robert S. Cohen, Esquire Post Office Box 10095 Tallahassee, Florida 32302 Fred Seely, Executive Director Construction Licensing Board Post Office Box 2 Jacksonville, Florida 32201 Kenneth E. Easley, Esquire Department of Professional Regulation 1940 North Monroe Street Suite 60 Tallahassee, Florida 32399-0792
The Issue Whether Respondent committed the violation alleged in the Administrative Complaint? If so, what punitive action should be taken against Respondent?
Findings Of Fact Based upon the evidence adduced at hearing, and the record as a whole, the following findings of fact are made: Respondent is a roofing contractor. He is now, and has been at all times material to the instant case, licensed to engage in the roofing contracting business in the State of Florida. He has held license number CC C049569 since 1989. In the eight years that he has been licensed, he has been disciplined once. On January 28, 1993, Respondent was issued a Uniform Disciplinary Citation alleging that, "on the 8th day of July, 1992, and the 19th day of August, 1992, [he] did violate the following provisions of law: Section 489.129(1)(j), Florida Statutes (1991), by violation of Section 489.119(5)(b), Florida Statutes (1991), by committing the following act(s): failing to include a license number on a contract and failing to include a license number on an advertisement at: 771 S.W. 61st Terrace, Hollywood, Florida 33023." Respondent did not contest these allegations. Instead, he chose to pay a $200.00 fine for having committed the violations alleged in the citation. Respondent is now, and has been since February 21, 1990, the primary qualifying agent for Ray Guy Roofing, Inc., a roofing contracting business owned by Respondent and located in Hollywood, Florida. Respondent's brother, Rodney Guy (Rodney), is also in the roofing business in the South Florida area. At all times material to the instant case, Rodney engaged in such business under the name "Hot Rods Roofing." In addition to having his own business, Rodney also, on occasion, worked for Respondent. In August of 1992, Rodney entered into a written agreement (Contract) with Christopher Klein in which Rodney agreed, for $7,000.00, to replace the damaged roof on Klein's residence in Dade County1 with a new roof with a seven-year warranty (Project). Subsequently, the Contract price was increased $500.00 to $7,500.00 by mutual agreement. Prior to the commencement of work on the Project, Respondent verbally agreed to assume Rodney's obligations under the Contract. Klein paid the Contract price in full, by check, in two installments. Both checks were made out to Hot Rods Roofing (in accordance with the instructions Klein was given) and cashed by Rodney. The second check contained the following handwritten notation made by Klein: "payment in full - roof - includes Ray Guy Roofing, Inc." The Project was completed on or before September 18, 1992. The work was done by Respondent and the employees of Respondent's roofing business, including Rodney. Following the completion of the Project, the roof started to leak. Klein thereafter unsuccessfully attempted to contact Respondent and Rodney by telephone to apprise them of the situation. On or about August 1, 1993, Klein sent a letter to Respondent and Rodney advising them of the leaks in the roof and requesting that they "send someone to fix them." Neither Respondent nor Rodney responded to Klein's letter. Klein therefore hired someone else to fix the leaks. Leaks subsequently redeveloped in the roof. Klein again unsuccessfully attempted to contact Respondent and Rodney by telephone to bring the matter to their attention. On or about March 22, 1994, Klein sent Respondent and Rodney a letter, which read as follows: As you will recall, you acted as partners in the installation of a new roof at my house after Hurricane Andrew. I have developed a leak and I have been attempting to contact both of you for over a month in connection with warranty work related thereto. I am surprised that you have ignored me because, as you will recall, my hiring you resulted in your obtaining at least 3 other jobs on my street. Please contact me within one week to schedule the repair. If I do not receive word from you, I will be forced to hire another roofing company and I will thereafter send you the bill. The bill will be for the roof repairs and to repair interior damage. Neither Respondent nor Rodney responded to Klein's request. Klein made temporary repairs to the roof at his own expense. Klein, who is a member of The Florida Bar, subsequently filed a complaint in Dade County Court (in Dade County Court Case No. 95-7415 CC 02) seeking a judgment for damages, plus interest and costs, against Ray Guy Roofing, Inc., Respondent, and Rodney for breach of contract (Count I), negligence (Count II), and breach of warranty (Count III). Respondent was served with a copy of the complaint on or about May 12, 1995. Shortly thereafter Klein received a telephone call from Respondent, who wanted to speak to Klein about the lawsuit. During their telephone conversation, they agreed to meet at 5:30 p.m. on May 17, 1995, at Klein's residence to discuss the possibility of settling the lawsuit. Respondent did not show up for the meeting, nor did he telephone or otherwise communicate with Klein to explain his absence. Respondent also failed to respond to Klein's complaint.2 On June 30, 1995, pursuant to Klein's written request, a Final Default Judgment was entered against Respondent and Ray Guy Roofing, Inc.,3 in Dade County Court Case No. 95-7415 CC 02. The Final Default Judgment provided as follows: THIS CAUSE came before the Court this date on Plaintiff's Motion for Final Default Judgment against Defendants Raymond Guy, Individually and Ray Guy Roofing, Inc., and the Court having noted that said Defendants were duly served and defaulted herein, and the court being otherwise duly advised in the premises, it is thereupon ORDERED that Plaintiff's Motion is granted and that Plaintiff, Christopher J. Klein, hereby recovers from Defendants, Ray Guy Roofing, Inc., and Raymond Guy, Individually, the principal sum of $5,500.00 plus costs in the sum of $198.00, making a total sum due of $5,698.00, for which sum let execution issue. Klein sent a copy of the Final Default Judgment to Respondent by United States Mail on or about July 21, 1995. The Final Default Judgment was not appealed, and it has not been vacated, set aside, discharged, or satisfied, in whole or in part.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department issue a final order (1) finding Respondent guilty of the violation of Section 489.129(1)(r), Florida Statutes, alleged in the Administrative Complaint, and (2) disciplining Respondent for having committed this violation by requiring him to: (a) pay a fine of $1,000.00; submit proof of satisfaction of the Final Default Judgment entered in Dade County Court Case No. 95-7415 CC 02; and reimburse the Department for all reasonable costs associated with the Department's investigation and prosecution of the charges set forth in the Administrative Complaint. DONE AND ENTERED this 25th day of September, 1997, in Tallahassee, Leon County, Florida. STUART M. LERNER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 25th day of September, 1997.
Findings Of Fact 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
