Findings Of Fact The parties stipulated to the following matters which are incorporated in and made a part of the Findings of Fact: The Respondent, Raymon Johnson, holds residential contractor's certificate Number CR C--4461. The Respondent entered into a written agreement with Gary J. Stearman and Michelle Talisman to construct a residence at 2911 NE 9th Street in Gainesville, Florida, for $32,000. The Respondent represented to the owners that the house would have a one-year warranty. On or about December 12, 1979, the Respondent was notified by Al Davis of the City of Gainesville that there were code violations involved with the property at 2911 NE 9th Street, and that based upon these violations a certificate of occupancy could not be issued. On or about June 5, 1980, the Board of Adjustment denied Respondent's appeal of the code violations and instructed Davis to provide Respondent with a list of all the code violations to be corrected before a certificate of occupancy could be issued. As of June 12, 1980, Respondent had not corrected all of the code violations. Johnson was initially advised of three code violations. These were improper wood siding, improperly attached roofing shingles, and improper holes and coverage of holes in the house's foundation. Johnson took steps to properly cover the holes in the foundation, had the subcontractor re-nail the roofing shingles, and controverted the allegation that the siding was improper. Subsequently, Davis refused to approve the roof on the basis that in raising the shingles to add the fourth nail the subcontractor had broken the seal on the self-adhering shingles, irreparably damaging the shingles. Eventually, the roof was completely replaced, although the roofing contractor could not fix the exact date. This was done without cost to the home owners. With regard to the siding, Davis based the determination that the wood was not suitable for siding on the determination that its moisture content exceeded the code requirements, which he in turn based upon the fact that the rough-sawn siding was not grade stamped. Lumber is grade stamped by lumber mills. The right to grade stamp is granted by independent manufacturer's associations to mills which cut and dry lumber to the specifications of such associations. Careful review of the Gainesville Building Code does not reveal any requirement that rough-sawn wood siding which is not structural or load-bearing to be grade stamped. See Section 1700.3 (page 17-2) and Section 1700.4 (page 17-4), Petitioner's Exhibit 3. The code does provide that lumber two inches thick or less will not contain more than 19 percent moisture at the time of permanent incorporation in a building. See Section 1700 6 (page 17-2), Petitioner's Exhibit 3. Johnson initially took samples of the siding from the four sides of the house to a lumber mill which graded lumber and had equipment for establishing moisture content. The results of the test of these samples were reported in a letter from Donald Carswell dated December 22, 1979. See Petitioner's Exhibit 5. Carswell testified at the hearing that he used the same test on Johnson's samples that was used on the lumber which the mill grade stamps. The samples from the house contained from 7 to 14 percent moisture content. Davis refused to accept this letter as proof that the wood was permissible for use as siding because the test showed the current moisture content and not the content as of the date it was installed on the house. Johnson then provided Davis with a letter dated January 21, 1980, from James Griffes, whose mill had cut the wood siding in question. See Respondent's Exhibit 3. Griffes also testified at the hearing that the lumber in question was rough-sawn heart yellow pine and had been stacked for four months prior to sale to Johnson. In Griffes' opinion the lumber was at least of utility grade. He testified that the lumber was dry enough to meet the standards in his opinion. Davis refused to consider the letter as proof of the moisture content because the lumber was not grade stamped. Rough-sawn lumber is not grade stamped, although it is graded, because the stamping operation is a part of the planing procedure. Johnson advised Davis that he was aware of rough-sawn lumber from Griffes' mill having been used in Gainesville. Davis indicated that when it had been used it was under circumstances in which an architect had approved the plans and accepted responsibility for its use. Johnson then provided Davis with a letter, Respondent's Exhibit 2, from H. J. Kelley, Professional Engineer, dated January 22, 1980. In this letter Kelley stated, based upon the two earlier letters, that the siding met the standards of the Southern Standard Building Code, Section 1706.7, for its intended use. Davis refused to accept this as proof of the siding's appropriateness. Johnson appealed Davis' determination to the city's Board of Appeals. This appeals hearing was held June 5, 1980. In April, 1980, the home owners obtained legal counsel, and he wrote Johnson a letter dated April 23, 1980, Petitioner's Exhibit 3. Various meetings were held between the parties during this period. One of these meetings resulted in preparation of a written agreement by the home owners' counsel, Petitioner's Exhibit 4. This agreement calls for replacement of the siding and roof as well as items not found by Davis to be in violation of the code. Johnson did not execute this written agreement. On June 5, 1980, the Board of Appeals held its hearing on Johnson's appeal of Davis' determinations. This appeal apparently limited to interpretation of Sections 1700.3, 1700.5, 1702.8.1 and 1302.5 of the Southern Standard Building Code. While all of these sections were not introduced at hearing, the minutes of that meeting, Petitioner's Exhibit 1, reflect that the Board of Appeals took up matters beyond those raised on appeal. This resulted in the Board of Appeals' direction to Davis to prepare a letter to Johnson setting out all violations of code which would have to be corrected in order for Johnson to obtain a certificate of occupancy The Board of Appeals took notice that it lacked authority to direct that the matters be corrected within a specific time. See Petitioner's Exhibit 1 (page 35). Prior to the June 5, 1980, meeting, the home owners had advised Johnson not to come on the premises or to do further work on the house. They had also commenced a suit against Johnson's contractor's bond. Johnson's attorney, Costello, wrote a letter to the home owners' attorney, Michael Davis, on August 13, 1980, which outlines the events subsequent to the Board of Appeals hearing. See Respondent's Exhibit 5. By letter of June 19, 1980, Costello advised Michael Davis that Johnson agreed to perform all repairs or corrections to comply with the code requirements on the condition that the home owners grant him access to the project and abate their suit. See Respondent's Exhibit 4. Michael Davis wrote Costello on June 30, 1980, advising that the home owners would not allow Johnson to complete the repairs. Meanwhile, the home owners continued their suit against Johnson's bond, in which they eventually received the monies necessary to replace the siding using another contractor.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, the Hearing Officer recommends that no action be taken against the Respondent. DONE AND ORDERED in Tallahassee, Leon County, Florida, this 27th day of October, 1981. STEPHEN F. DEAN Hearing Officer Division of Administrative Hearings Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 27th day of October, 1981. COPIES FURNISHED: Charles T. Tunnicliff, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Mr. Raymon E. Johnson Post Office Box 13981 Gainesville, FL 32604 Samuel Shorstein, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301
The Issue The issues in this case are whether the Respondent, Brian D. Legate, should be disciplined on the charges in the Administrative Complaint, PCCLB Complaint No. C98-556. Specifically, the Administrative Complaint charged violations of Section 24(2)(d), (j), (m), and (n) of Chapter 75-489, Laws of Florida (1975), as amended, by: Count I - failure to obtain a building permit before beginning roofing work, contrary to the requirements of Section 104 of the Standard Building Code; Count II - covering rotted roof framing and building a roof that leaked, contrary to the requirements of Section 1509.1.2.1 of the Standard Building Code; and Count III - committing gross negligence, incompetence, or misconduct in the practice of contracting.
Findings Of Fact The Respondent, Brian D. Legate, is a licensed roofing contractor. He holds license C-4676 (RC0061241). On approximately March 16, 1998, Mr. and Mrs. Richard Shutt requested an estimate from Legate for the repair of a leaking roof at their house at 7127 Third Avenue South, St. Petersburg, Florida. The leaking portion of the roof was a flat, built-up roof that was over the single-story living room of the house and adjacent to a second story bedroom; the other three sides of the perimeter of the leaking roof consisted of capped parapet walls. The roof and tile covered the flat portion of the roof and extended approximately ten inches up the inside of the parapet walls. The Shutts did not testify. Legate testified that the Shutts could not afford to completely rebuild and seal the parapets, re-roof, and re-tile. Instead, the Shutts wanted Legate to tear off the old roof down to the wood decking and re- roof to try to stop the roof leak; the Shutts planned to have someone else rebuild and seal the parapets and finish the roof with new tiles in about six months. Legate recognized that the Shutts' plan was not ideal; it would be difficult to maintain a watertight roof system until the parapets were rebuilt and sealed and the tiles replaced. Under the Shutts' plan, Legate would have to tack the new roof to the lower part of the parapet walls as best he could and tuck the upper edge of the new roof under the drip edge on the parapet wall to secure it temporarily until the parapet walls were rebuilt and sealed and the new tile installed. But Legate agreed to cooperate with the Shutts and give them an estimate for the work requested. Legate also recognized that it would have been best to install new flashing between the new roof and the parapet walls above the roof. The old metalwork serving as flashing on the existing roof system actually was a metal roof drip edge that was being misused as flashing. Legate recommended new flashing, but the Shutts declined because it would cost an additional $1,500 that they could not afford. On or about March 16, 1998, Legate gave the Shutts an estimate, without any new metalwork, for $4,000, plus $950 for new roof drains. Legate planned to install the roof drain bowls somewhat higher than the top of the new roof so that they would be flush with the ceramic tile when eventually installed over his roof. The Shutts accepted Legate's estimate for the roof work, a contract was signed, and the Shutts paid an inital $1,200 installment on March 19, 1998. Legate began work on the Shutts' roof approximately two weeks later. Legate also has a general contractor license, and he also made a proposal to repair wood and plaster inside the Shutts' house that had been damaged over the years by water leaking from the roof above. The Shutts could not afford this proposal and declined. Legate purposely delayed obtaining a building permit to give the Shutts more time to have the parapet walls rebuilt and the new tile installed under the six-month life of the building permit. As Legate's work proceeding, the Shutts paid an additional $1,200 on April 9, 1998, and another $2,000 on May 4, 1998. At approximately the time Legate invoiced the Shutts for the balance due under their contract, a dispute arose regarding the appearance of the roof drain bowls Legate installed. Legate agreed to remove the offending drain bowl, and order and install a type more to the Shutts' liking. On or about June 2, 1998, Legate applied for a building permit. He also requested that they file the notice of commencement so that he could call for a building inspection. At some point (the evidence is not clear when), Legate also wrote the Shutts by certified mail and enclosed a completed notice of commencement for them to sign and file. By letter dated June 5, 1998, an attorney representing the Shutts demanded that Legate not contact the Shutts again and not do any further work on their property because the work done was "inferior and was not of the type desired." Legate complied with the attorney's demand. He did not know exactly what the problem was but assumed it had something to do with the drain bowls. The Shutts did not file a notice of commencement until approximately June 24, 1998. On or about July 6, 1998, someone other than Legate (the evidence was not clear who, but probably the Shutts or their attorney) called for a building inspection of Legate's work. Legate did not know either that the notice of commencement had been filed or that someone had called for an inspection. For that reason, and also because he had been ordered off the job, Legate was not there on July 7, 1998, when a building inspector from the City of St. Petersburg inspected the roof. The Shutts invited the inspector inside the house where he inspected interior water damage and was able to inspect water- damaged wood laths (used to secure ceiling plaster), roof joists and framing beneath one of the roof drains from the underside. The inspector found the roof to be leaking and covering rotted roof framing. He was concerned that it might be dangerous to attempt to place the additional weight of ceramic tile over the roof, especially for the intended use as additional living space (an outdoor, second-story patio.) The inspector determined that it would be necessary to have an on-site inspection with the contractor and a copy of the roofing manufacturer's specifications for the type of roof system applied before final inspection. The building inspector did not contact Legate directly to inform him of the need for an on-site inspection; instead, he left a notice on the building permit at the premises. The inspector was unaware that Legate had been ordered off the premises and would not see the notice. Legate was not aware that an inspection had taken place and did not contact the building inspector. Not having heard from Legate, the building inspector returned to the premises on July 13, 1998, for final inspection without Legate. He saw essentially the same conditions as before and disapproved the work. Legate also was unaware of this second inspection. He never inquired with the City building department as to whether a notice of commencement had been filed or whether the roof had been inspected. On September 15, 1998, the Shutts had the roof inspected by an independent roofing consultant. The independent inspection confirmed the building inspector's findings and added that damage caused by the roof leaks in the meantime had caused additional damage to the roof itself, as well as to the roof substrate (decking) and framing, to the point that it could have been dangerous to attempt to place the additional weight of ceramic tile over the roof, especially for the intended use as an outdoor, second-story patio. The independent roof consultant testified that water was leaking where the metal drip edge had pulled away from the parapets, and there was a gap between the top of the roof material and parapets. He also testified that the drip edges were old and an improper choice for use as flashing where the roof material met the parapets. However, he could not testify as to when the drip edge pulled away from the parapets and apparently was not aware that, for financial reasons, the Shutts had rejected Legate's recommendation to install new metal flashing. The independent roof consultant testified that water also was leaking at the roof drain bowls because they were set too high, causing improper ponding on the roof in the vicinity of the drain bowls. He also testified that, even if the ceramic tile had been installed promptly after Legate's work, the roof drain bowls still should have been flush to the waterproof roofing material, not to the ceramic tile going in over it. However, Legate and his foreman testified that Legate's plan was acceptable and would have made the finished roof watertight. The evidence was not sufficient to prove Legate incorrect. Legate and his workers replaced some rotted roof decking before replacing the roof. They testified that they did not see any more rotted roof framing or joists. While some additional water damage inside the house was evident on September 15, 1998, including rotted ceiling wood lath and joists, it was not clear from the evidence how much was visible or evident to Legate and his workers from their vantage point working on the roof. It is clear, however, that Legate gave the Shutts an estimate for the repair of interior damage, to the extent visible, and that the Shutts declined the repairs for financial reasons. There was no evidence that the Shutts ever complained to Legate that the new roof was leaking. The last Legate heard from the Shutts was their attorney's letter demanding that he not contact the Shutts and not do any more work on the roof. Legate also was unaware of the building inspections and the independent inspection. Legate testified without contradiction that, if he had been aware of the leaks or had been asked, he certainly would have returned to stop the leaks, at least by temporary means, until the additional work contemplated by the Shutts could be done. Section 104.1.1 of the Standard Building Code (1997) requires a contractor to obtain the required building permit before beginning work. There was testimony that the City of St. Petersburg allows builders to "call in" an application for a building permit (by telephone), begin work, and actually obtain the permit within a day or two. But such a procedure would not allow for a delay of months. Section 1503.1.2.1 of the Standard Building Code (1997) requires that roof coverings "provide weather protection for the building at the roof." (The reference to Section 1509 in the Administrative Complaint apparently was a typographical error.) PCCLB has published "Guidelines for Disciplinary Action," which state that $750 is the "typical" penalty for the first "major" infraction and that $300 is the "typical" penalty for the first "minor" infraction. "Major" and "minor" infractions are not defined. The Guidelines also provide that the PCCLB shall consider aggravating and mitigating factors and may take any of the following actions: (1) suspension for a time certain (with possible permission to complete any uncompleted contracts); (2) revocation; or (3) an administrative fine not to exceed $1,000 per count.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Pinellas County Construction Licensing Board enter a final order finding the Respondent, Brian D. Legate, guilty under Count I, fining him $300 under Count I, and dismissing Counts II and III of the Administrative Complaint. DONE AND ENTERED this 25th day of March, 1999, in Tallahassee, Leon County, Florida. J. LAWRENCE JOHNSTON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 25th day of March, 1999. COPIES FURNISHED: Williams Owens, Executive Director Pinellas County Construction Licensing Board 11701 Belcher Road, Suite 102 Largo, Florida 33773-5116 Brian Legate 5901 40th Avenue, North St. Petersburg, Florida 33709
The Issue The issues in this matter are as promoted by an administrative complaint brought by the State of Florida, Department of Professional Regulation against William B. Garrison. In particular, the respondent is charged with having diverted funds or property received for the completion of a specific project in violation of Section 489.129(1)(h), Florida Statutes (1979). In addition, the respondent is charged with signing a statement falsely indicating that payment had been made for all subcontracting work, in violation of Section 489.129(1)(1), Florida Statutes (1979), and of making misleading, deceptive, untrue or fraudulent representations in the practice of his profession in violation of Section 455.227(1)(a), Florida Statutes (1979). It is the respondent's denial of these accusations and request for formal hearing which eventuated in this recommended order.
Findings Of Fact Respondent is a holder of a registered building contractor's license issued by the Florida Construction Industry Licensing Board. That license number is RB0029142, first issued in 1975. Respondent has been associated with the construction business on a full time basis since 1970. From 1975 through 1981 respondent operated as Garrison Builders of Tallahassee, Inc. At all times relevant to the administrative complaint, respondent was the qualifier of Garrison Builders of Tallahassee, Inc., pursuant to Section 489.119, Florida Statutes. On August 6, 1980, Garrison Builders of Tallahassee, Inc., contracted with TBW, Inc., to build eight townhouses at Larette Drive, in Tallahassee, Florida, for a contract price of $269,424.00. That base contract price was subject to change orders, the first of which decreased the contract price by $8,000 and the second which increased the contract price by $864.00. As a consequence, the final contract price was $262,388.00. Garrison Builders of Tallahassee, Inc., was paid a total of $257,598.38 under the terms of the contract. Garrison Builders paid out, related to the account for this project, $257,890.01. As of March 31, 1981, respondent had failed to pay the following subcontractors and materialmen in the amounts designated: Butterfield's Floor Covering, Inc. $ 277.10* Barineau & Sons Heating and Air Conditioning 2,420.00 Big Bend Rental Center, Store #1 596.96 Sam Crowder Co. 61.39 Discount Lumber, Inc. 445.33* Ken Driggers, Inc. 32.14 Deep South Insulation Co. 600.00 John T. Daniel Cabinet Co. 3,400.00 Miller Sheet Metal 1,292.00 Melco Wood fixtures 1,502.59 Maples Concrete Products Co., Inc. 1,571.31 Quality Plumbing, Inc. 5,864.00* Tallahassee Glass & Screen 690.56 Tallahassee Rug Co. 1,486.51 Yarbrough Paint & Decorating Center 1,589.15 City Building Department-Systems Charges 1,790.10 Wallpaper Installation-50 rolls @ $7.00/roll 350.00* Total $23,969.14 *Billing not complete The contract between Garrison Builders and TBW was to be performed in 150 days after August 6, 1980, subject to allowances for rain days, etc. Garrison Builders was responsible for satisfying the claims of the materialmen and subcontractors as reflected above, in keeping with the terms of the contract. Respondent, as president of Garrison Builders, was responsible for the overall project. In keeping with the contract terms, respondent and the job foreman for the subject project made application and certification for payment. These applications and certifications may be found as part of the petitioner's composite Exhibit Number 2, admitted into evidence. The last of those applications was made by the respondent on February 17, 1984. Prior to that payment, Garrison Builders had been paid $247,136.70. On that occasion, as on other occasions, respondent certified, "that all amounts have been paid by him for work for which previous certificates for payment were issued and payments received from the owner. . . ." in signing the certification for an additional $10,461.68 draw. At that point in time approximately 98 percent of the job had been completed. Nonetheless, contrary to the certification statement, materialmen and suppliers had not been paid as demonstrated in the accounting set forth above showing that as of March 31, 1981, $23,969.14 was still owed, which amount far exceeds the difference between the contract price of $262,388.00, and the amount Garrison Builders had been paid prior to the last draw, i.e., $247,136.70. That differential is $15,251.30. In a meeting in March 1981 at which respondent attended and was represented by counsel, respondent admitted to a representative of TBW that materialmen and suppliers had not been satisfied in terms of payment. By affidavit of April 3, 1981, a copy of which is petitioner's Exhibit Number 5 admitted into evidence, he acknowledged the $23,969.14 of outstanding claims effective March 31, 1981. Moreover, in a court appearance involving TBW and some of the materialmen and suppliers in which the question of possible liens by those latter entities was litigated, respondent admitted that he had lied in his statement of certification in the contractor's application and certificate for payment, wherein he stated that all materialmen and suppliers had been satisfied before obtaining payments under the contract. This admission, taken in the context of the other facts found, indicates that the respondent appreciated that materialmen and suppliers had not been paid when he made application for the February 17, 1981, draw and swore that they had. This oath as to that circumstance was not one of mistake or inadvertence. It was a comment made with the knowledge of the implications of the oath. Thus, the effect was to be false, misleading, deceptive, untrue and fraudulent, contributing to a loss of $277.10 which the owner paid Butterfield Floor Covering without reimbursement. Respondent was not paid the balance of the contract price, the owner having claimed that the contract was 90 days beyond the contract date for completion, and upon the assertion by the owner that additional funds had to be expended to complete the contract over and above the contract amount. Respondent claims that the reason for late completion concerned a problem with a subcontractor who was providing cabinets, one John Daniel. In addition, respondent alludes to the fact that he was in the hospital from November 10, 1980, through November 20, 1980, and again from December 2 through 19, 1980, and as a consequence was unable to supervise the job in a manner which he preferred. Daniel was a subcontractor chosen by the owner and accepted by the respondent. From a review of the evidence, it is unclear whether Daniel was the responsible agency for the project being approximately 90 days over the contract period. It is also uncertain whether the essentially 90 day delay was in view of respondent's failures as responsible agent for Garrison Builders. Had Garrison Builders been responsible the owner would have been entitled to deduct essentially $20 a day for late penalties. Finally, the owner's claim of expenditures in excess of $10,000 to complete the job was not satisfactorily proven. In summary, the job was late for reasons unestablished. Certificates of occupancy were issued for the eight units in March 1983 signaling the completion of the job. On the subject of whether respondent diverted funds and property from this project into other projects thereby affecting the outcome of the project, the proof on balance demonstrates that Garrison Builders, under the aegis of the respondent, made a bad bargain by underbidding this project as opposed to diverting funds and property to other pursuits.
Recommendation Upon consideration of the findings of facts and conclusions of law, it is RECOMMENDED that a final order be entered which finds the respondent guilty of a violation of Section 489.129(1)(1), Florida Statutes, and Section 455.227(1)(a), Florida Statutes, and dismisses the allegation of a violation of Section 489.129(1)(h), Florida Statutes. For the violations established, a penalty of a 60 day suspension should be imposed against the respondent. DONE AND ENTERED this 11th day of September 1984 in Tallahassee, Florida. CHARLES C. ADAMS 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 September 1984. COPIES FURNISHED: Michael Egan, Esquire ROBERTS, EGAN & ROUTA, P.A. 217 South Adams Street Tallahassee, Florida 32302 Jeffrey H. Savlov, Esquire Post Office Box 10082 Tallahassee, Florida 32302 Fred M. Roche, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 James Linnan, Executive Director Board of Construction Industry Licensing Board Department of Professional Regulation Post Office Box 2 Jacksonville, Florida 32202
The Issue Petitioner, the state agency charged with regulating the practice of contracting pursuant to Section 20.30 and Chapters 455 and 489, Florida Statutes, filed an administrative complaint dated May 20, 1986. Thereby, it has charged Respondent with violations of Sections 489.119, 489.129(1)(g), (j), and Florida Statutes, for which violations it seeks to impose, according to its post-hearing proposal, the requirement of $5600 restitution to Mr. Kenneth Jessell, a fine of $1500, and a one year suspension of Respondent's contractor's license. BACKGROUND AND PROCEDURE The parties' Joint Prehearing Statement was admitted as Hearing Officer Exhibit 1. Petitioner presented the oral testimony of Kenneth A. Jessell, Richard P. Scanlon, Gene O. Seymour, and Robert D. Hilson, and had admitted Petitioner's Exhibits 1, 2, 4, 5 and 6. Exhibit P-3 was marked for identification and proffered but not admitted. Respondent presented the oral testimony of Sheldon Israel and Respondent and had admitted Respondent's Exhibits 1, 2, and 4. Exhibit R-3 was marked for identification and proffered but was not admitted. At the close of hearing, Respondent moved for dismissal for failure of Petitioner to establish a prima facie case. That motion was taken under advisement and is addressed in the following conclusions of law. Upon the filing of a copy thereof as a post-hearing exhibit, judicial notice was taken of Section 3401.1(a)(3) South Florida Building Code, without objection. Petitioner filed transcript herein, and the parties' timely filed their respective post-hearing proposals within the time extensions agreed-upon and granted. The parties' respective proposed findings of fact are ruled upon pursuant to Section 120.59(2), Florida Statutes, in the appendix to this recommended order.
Findings Of Fact Respondent is, and has been at all times material hereto, a certified roofing contractor, license number CCC02955I, whose address of record is 2311 N. E. 35th Street, Lighthouse Point, Florida 33064. On or about June 6, 1985, Respondent, doing business as Great Southern Industries, contracted with Mr. Kenneth Jessell to install a roof on Jessell's house at Lighthouse Point, Florida. The contract price was $5,600. At no time relevant to the charges herein did Respondent or anyone else qualify Great Southern Industries nor did that name appear on Respondent's license. At hearing, Respondent admitted a violation of Section 489.129(1)(g), Florida Statutes, by acting in the capacity of a contractor under a name other than that appearing on his state certificate, and further admitted violation of Sections 489.129(1)(j) and 489.119, Florida Statutes, by failing to qualify a legal entity through which he was contracting. The parties stipulated those allegations of the complaint were to be considered proven. In mitigation, Respondent established that no fraud or deceit concerning who was actually performing the roofing work was perpetrated against Mr. Jessell, that Respondent's omissions were due to his misunderstanding of the legal requirements involved, and that at all times since its incorporation, August 31, 1984, Respondent has been sole shareholder, officer, and director of Great Southern Industries, Inc., a Florida corporation. Upon being made aware of his violations, he has ceased to do business as Great Southern Industries. There is no evidence of prior misconduct. Respondent, as Great Southern Industries, partially completed work on Jessell's house and Jessell partially paid for said work when a dispute arose between Respondent and Jessell relative to the work. Respondent began work on Jessell's roof on June 17, 1985. On June 18, 1985, a pitch fire broke out. The pitch fire resulted from a tar kettle which had not been appropriately handled by an employee of Respondent who had been assigned to tend it. Such fires are not uncommon in the industry. After the fire was put out, work ceased for the day, but Respondent appeared the very next day and continued with the roofing project. There is expert testimony that leaving such a pitch or tar fire unattended was negligent and that if the overly hot pitch or tar had then cooled overnight, been reheated, and used on Jessell's roof it would have been inadequate for the job. However, there is no direct credible testimony or documentary evidence that this is what actually occurred. Mr. Jessell was not present on the site the next day and approximately 60-70 percent of the base layer of the roof had been tarred over before this event occurred. Mr. Jessell is a college professor in finance and real estate. He has no expertise in contracting, roofing, or inspection of such jobs or the material used therein, but upon observation from the ground, without going onto the roof, Jessell decided the roof was not being properly constructed. On June 25, 1987, at Mr. Jessell's insistence, Gene O. Seymour, the Chief Building Inspector of the Broward County Building Department inspected the job, which he did not approve at that time. Respondent came back to conform the job to the inspector's concerns. Seymour did not approve the job at reinspection on July 1, so Jessell withheld payment. Respondent again returned and did some additional work. On July 9, the job again did not pass inspection. Respondent did further repairs on July 29. There were numerous other inspections but the job did not pass for one reason or another. On each occasion, Respondent came back to address the inspector's concerns. Seymour's testimony can be synopsized that he made an extraordinary number of inspections (at least 20) at Mr. Jessell's urging, and that the roof often failed to pass, mostly because the work was not yet fully completed. Inspector Seymour noted that sometimes the job would pass one inspection only to have Jessell call him back and show him new problems which had appeared in the interim. Seymour could not explain how this could be. He termed the job "jinxed." Respondent maintains, and Jessell denies, that Jessell frequently would go up on the roof and make suggestions to Respondent and his employees on how the roofing should be done, that Jessell pulled up on the felts, and that Jessell otherwise damaged the work done by Respondent and his crew. Having observed the respective candor and demeanor of Jessell and Respondent, and after considering and weighing the foregoing comments of Inspector Seymour and of all the witnesses' peripheral testimony on how rapid deterioration and excessive patching occurred, I find Respondent's explanation of the problems up to this point to be the more credible explanation, if a somewhat exaggerated one. Up until August 22, 1985, Respondent came and fixed anything Jessell complained of or that had been noted by an inspector. Finally, on August 22, Inspector Seymour approved the job as ready for the addition of tiles. Jessell was still dissatisfied with the roof.. By this time, he had been up on it several times with and without Seymour. Jessell took photographs and sought out Seymour in his office. Seymour rescinded his approval due to the appearance of new water blisters. Both Jessell and Seymour concur that at this point there were no leaks. On August 30, Seymour inspected again. He cut deeply into the roofing material in three places; in each place, he cut down to the base plywood sheeting and found no evidence of any water. This type of testing is considered "destructive testing." He also observed gouges, slashes, and nails working out. He proposed that Jessell get an independent consultant to resolve the problems between them. Respondent obtained a visual inspection by Sheldon Israel who wrote a letter which was signed off on by a certified architect and which confirmed that the roof as completed by Respondent thus far complied with the intent of the South Florida Building Code, which Code has been adopted in Broward County. On September 20, Seymour gave final approval for the stage the job had reached based on the letter from Israel and the fact that the waterproof membrane which Respondent had installed was intact at that time. Thereafter, Jessell hired Richard Paul Scanlon, a licensed and certified roofer, who eventually tore off what had been done by Respondent and did a complete "reroof" at a cost to Mr. Jessell of $6500. Scanlon, qualified at hearing to give expert evidence in roofing contracting, saw the roof in January 1986, approximately six months after Respondent had left the job. During those six months, the unfinished roof had been sitting exposed to the elements, without tiles, and with numerous patches, gouges, and cuts in it. He opined that Respondent's work constituted poor work and gross negligence. His opinion is based on his visual inspection without any tests whatsoever. Errors in Respondent's work which he noted included mopping the tar the wrong way, improper water lapping, and use of some rag felts and some fiberglass felts as opposed to the use of fiberglass as required by the Jessells' contract with Respondent. (However, rag felts and fiberglass felts both meet Code requirements.) Scanlon felt there was a possibility the roof would slide if tiles were added atop Respondent's work but declined to say this was a probability. In order to give a roof warranty, Scanlon felt he had to tear off Respondent's work and "reroof." Whatever he may have found when he tore the roof off later was not explored. Robert D. Hilson, a licensed and certified roofing contractor was also qualified as an expert witness. He also did not inspect the Jessell work until January 1986. He stated the number of patches over the base layer was excessive and unusual and the consistency of the tar was far too "runny," thin, and "gooey." As opposed to this thin consistency being clearly connected to the kettle fire and base coat mopping, Hilson indicated the consistency of tar he was objecting to was a last attempt at overpatching the base layer. He also testified that the roof patches had been lapped the wrong way and occasionally had been mopped inadequately or the wrong way, and he assumed the base layer was also lapped the wrong way, but he never "eyeballed" the base layer to verify this. He found water present at that time. He indicated 6 months exposure would have caused insignificant deterioration. Contrariwise, Sheldon Israel, also accepted as an expert, opined that possibly 6 months could have caused the deterioration Scanlon, Hilson and Jessell all described as existing in January 1986. The contract between the Jessells and Respondent is ambiguous. One portion provides: "5. Install Spanish Style, cement tile roof over 90 lb. roof surface." Another paragraph provides: "8. Owners to select specific colors of Gory Spanish S by 6/12/87 at 12:00 p.m." Printed instructions (specifications) for installation of Gory roofing tile require water laps on 90 pound felt. The Southern Building Code requires prepared roof coverings to be applied in accordance with manufacturers' printed instructions for the products used. Respondent used 90 lbs. rag felts and some fiberglass felts. Both meet Code. Respondent admits he also installed a waterproof membrane or tile underlayerment that was manufactured especially to go underneath Genstar cement tile. This waterproof membrane can only be exposed to the elements without covering for 6-8 months before it is too damaged for use. Respondent planned to install Gory tile on top of the membrane but according to the best expert testimony Gory tile cannot competently be installed over such a waterproof membrane and its ability to be installed over fiberglass felts is questionable. The dispute between Jessell and the Respondent was resolved and Mr. and Mrs. Jessell executed and tendered a full release dated March 20, 1986, for all work performed on their house by Respondent and Great Southern Industries, Inc.
Recommendation Upon the foregoing findings of fact and conclusions of law it is recommended that the Construction Industry Licensing Board enter a final order finding Respondent guilty of violations of Sections 489.129(1)(g), 489.129(1)(j) and 489.119, Florida Statutes, assessing a penalty of $1000 administrative fine therefor, and dismissing the charge of fraud, deceit, gross negligence, incompetency, or misconduct brought under Section 489.129(1)(m), Florida Statutes. DONE AND ORDERED this 2nd of July 1987, in Tallahassee, Florida. ELLA JANE P. DAVIS 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 2nd day of July 1987. APPENDIX TO RECOMMENDED ORDER CASE NO. 86-2552 The following constitute rulings pursuant to Section 120.59(2), Florida Statutes, upon the parties respective proposed findings of fact (FOF). Petitioner's Proposed FOF. 1-2. Covered in FOF 1. Covered in FOF 1 and 4. Accepted but subordinate and unnecessary. Sheldon Israel was accepted as an expert witness upon other qualifications of record. Accepted but alone is not dispositive of any issue at bar. Rejected as out of context and as not constituting an ultimate material fact. The topic as a whole is covered in FOF 9-11 and the conclusions of law so as to conform to the credible record as a whole. Accepted but not dispositive of any issue at bar. Topic covered in FOF 5 and 10. Accepted but not dispositive of any issue at bar. Contrary to the parties' belief, lack of supervision was not alleged with specificity in the administrative complaint. I accept Respondent's testimony that the employee assigned to the kettle, improperly oxygenated its contents but had not abandoned it. See FOF 5 and 10. Rejected as covered in FOF 11 which conforms with the evidence of record. Rejected as covered in FOF 9 which conforms to the evidence of record. Respondents Proposed FOF. Covered in "Issues." Covered in FOF 1. Covered in FOF 2. Covered in FOF 4. Covered in FOF 12. Covered in FOF 3. Rejected as covered in FOF 11, which conforms with the evidence of record. Rejected as a conclusion of law. Accepted as modified in FOF 6-7 to conform to the evidence of record. COPIES FURNISHED: G. Vincent Soto, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 Gary I. Blake, Esquire 3111 University Drive Coral Springs, Florida 33065 Fred Seely, Executive Director Construction Industry Licensing Board Post Office Box 2 Jacksonville, Florida 32201 Van Poole, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 Joseph A. Sole, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750
Findings Of Fact Based upon my observation of the witnesses and their demeanor while testifying, and the documentary evidence received, the following relevant facts are found. Respondent is a registered roofing contractor who has been issued License No. RC 0023750. During early 1981, Aleta Swygard and Thomas Garner contracted to purchase a residence located at 4814 SW 20th Street, Ft. Lauderdale, Florida. Pursuant to the terms of that purchase agreement, and the requirements of the FHA financing, it was necessary to obtain a report from a licensed roofer that the roof was in satisfactory condition. At the time the contract for purchase was executed, the roof was leaking and the ultimate condition of the roof was unknown by the purchaser. The purchaser's broker, Wise Realty, incident to the real estate transaction, retained Respondent to perform all necessary roof repairs on the subject residence and to file an FHA inspection report in accordance with the requirements of FDA. Respondent was instructed by Amerigo DiPietro, real estate broker, to only do what was facially necessary to allow the transaction to close. Respondent therefore prepared the report to show that the roof was in satisfactory condition. In this regard, Messenger DiPietro did not testify at the hearing herein. Respondent admits that the roof was in unsatisfactory condition and although he advised Wise Realty, through broker DiPietro, of the condition, he completed the FHA report indicating that the roof was in satisfactory condition. (TR 8, 45 and 46) It is undisputed that the Respondent charged, and was paid, approximately $425 to perform the repairs on the subject roof in question. It is also undisputed that the Respondent did not obtain a building permit although one was required) to perform work where the repairs exceed the sum of $300. (Testimony of Respondent and Susan Marchitello, TR 13) The purchasers relied upon the FHA inspection report prepared by Respondent to proceed to closing on that property. After closing, the purchaser discovered that the roof continued to leak and was in need of substantial repairs. In this regard, the purchasers expended approximately $2,200 to repair the roof in satisfactory condition. Respondent failed to honor his written guarantee issued to the purchasers shortly after his work was performed although he received notice that repairs were necessary. In mitigation, the Respondent points out that he was led down the "primrose path" by broker DiPietro and that this was the first disciplinary proceeding he had been involved in in his approximately 13 years of contracting. Further, Respondent avers to the fact that he had previously performed contracting repairs for broker DiPietro without any problems.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that the Respondent be ordered to pay an administrative fine of $500 and that his registered roofing contractor's license (No. RC 0023750) be placed on probation for a period of one (1) year. RECOMMENDED this 18th day of April, 1983, in Tallahassee, Florida. JAMES E. BRADWELL, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 18th day of April, 1983.
Findings Of Fact The Respondent, Sergio J. Alcorta (Alcorta), is licensed by the Department of Business and Professional Regulation (Department) as a professional engineer, license number PE 0014464. Alcorta is not licensed by the Department as a contractor. Alcorta has a company called mrf building systems, inc. Alcorta d/b/a mrf building systems, inc. is not listed in the records of the Contractors Section, Dade County Building and Zoning Department as a certified contractor doing or contracting for work in the building trades in Dade County. Hurricane Andrew, which hit the Miami area in August, 1992, damaged the home of Kenneth and Elizabeth Quinn. A friend of the Quinns referred them to Alcorta for assistance. By letter dated September 15, 1992, Alcorta outlined a discussion he had with the Quinns. The letter stated: Per our discussion, I will assist you in dealing with your insurance carrier and other construction workers to ensure that all hurricane damages are accounted for and the work is properly performed. I will prepare an initial damage evaluation report of all damages for the insurance adjuster and facilitate on your behalf the transfer of funds from your mortgage holder to you and to any pertinent party. My fees will be $150 for the initial evaluation and $500 at the end of construction work where you require my assistance. By letter dated September 16, 1992, Alcorta advised the Quinns of his findings concerning the damage to their residence. The engineer's report was prepared on the letterhead of Nu-Tech Engineering Services. Alcorta contacted a general contractor to see if the contractor could perform the work required to repair the Quinn's house. The contractor advised Alcorta that only a roofing permit would be required for the job and that because of the work he was already committed to do, he did not know when he could complete the repairs. Alcorta and Mr. Quinn signed a proposal on mrf building systems, inc. letterhead dated September 29, 1992. The proposal provided: We propose to furnish all materials, labor, tools, and equipment to repair the storm damaged dwelling at the above referenced location as follows: Roof recovering with shingles and ply- wood sheathing repairs $7,500. Structural repairs to concrete columns, stucco repairs as necessary $2,500 Enclosing terrace with new exterior walls and french doors $7,500 Retiling terrace room and pool area $2,000 Securing cabinets and other interior damage $1,000 Removal, installation of solar collector $500 New terrace central air conditioner $2,000 Exterior fencing $3,000 Total repair estimate $26,000 TERMS: One third down payment upon execution of the contract. Partial payments upon completion of work segments. Estimated time for completion of job: 21 days. On mrf building systems, inc.'s letterhead dated September 30, 1992, Alcorta provided Ms. Quinn with an estimate for interior painting, taking off the roof mounted solar collector and reinstalling it on the new roof, replacing roof insulation, structural epoxy repair, and replacing torn vent screens. Alcorta was paid approximately $14,650 by the Quinns on this project. Alcorta in turn paid for some of the materials and labor used on the project. The checks from the Quinns were made payable to Alcorta, not to mrf building systems, inc. By letter dated October 2, 1992, on mfr building systems, inc., letterhead, Alcorta forwarded a copy of the contract with the Quinns to the Quinn's mortgage company advising them that the Quinns had given him a down payment of $4,000 and listing the anticipated completion dates for the various tasks to be performed. Alcorta bought supplies and had laborers come to the site to perform work. There was no licensed contractor on the job. The only building permit pulled on the project was obtained by Elizabeth Quinn, the homeowner. The building permit did not carry the disclosure statement required by Section 489.103(7), Florida Statutes. Alcorta witnessed Ms. Quinn's signature on the application for building permit. Alcorta did not advise the Quinns that they were to act as contractors per Section 489.103(7), Florida Statutes. The Quinns did not supervise the construction on the project but relied on Alcorta to supervise the work. Alcorta was not an employee of the Quinns. The Quinns experienced problems with the roofing work performed pursuant to the contract with mrf building systems, inc. The roof leaked, requiring the Quinns to have the roof replaced at a cost of $10,000.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered finding that Sergio J. Alcorta violated Section 489.127(1)(f), Florida Statutes (1992 Supp.), and assessing an administrative penalty of $3,000. DONE AND ENTERED this 20th day of November, 1996, in Tallahassee, Leon County, Florida. SUSAN B. KIRKLAND Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 20th day of November, 1996. COPIES FURNISHED: Donna Bass, Senior Attorney Department of Business and Professional Regulation Division of Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0750 Mr. Sergio J. Alcorta Nisky Center, Mail Box 401 Charlotte Amalie St. Thomas, Virgin Islands 00802 Lynda Goodgame, Genral Counsel Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792
Findings Of Fact At all times material hereto, Respondent, Dean R. Stewart, held real estate license number 0172552 issued by Petitioner, Department of Professional Regulation, Board of Real Estate. He was employed as a salesman for Don Capin, Inc. a real estate firm located at 3001 Salzedo Street, Coral Gables, Florida. In March, 1977, Respondent and one Raymond W. Romeo purchased a parcel of property located at 1720 Wa-Kee-Na, Coconut Grove, Florida, for approximately $65,000. The parcel consisted of a large two-story house built in 1930 and an adjoining vacant lot. The vacant lot was later sold by Stewart and Romeo to a builder who wished to construct a new home. Respondent began a substantial restoration of the older house shortly after the parcel was purchased and eventually spent approximately $100,000 in modernizing and repairing the house. The entire first floor was torn out and replaced with new walls, windows, bathrooms, kitchen and electrical wiring. The house was repainted inside and out, recarpeted and landscaped. A swimming pool was installed in the back yard. The studs and plates on the second floor were also replaced and the bathrooms and kitchen modernized. An associate of Don Capin, Inc. described the list of things done to the house as incomprehensibly large". In March, 1979, Respondent contracted with Cooper Roofing, Inc. to "reroof" the house. According to the terms of their agreement dated March 12, 1979, Cooper was to perform the following work: Remove roof to sheating and hauling all trash away replacing rotten lumber where needed, using 30 lbs. felt in cap 12 on 12. Gravel stop around edges nail every 8" mopping on 2-15 with hot asphalt strip out with 1, 6" and 1, 9" 15 lbs felt flood coat and gravel, on top part only. On tile remove roof to locations of leaks re- pairing and relaying tiles back. gravel roof carries four (4) year guarantee. This roof is water tight with no evidence of leaks at this time. Price $1,400 /s/ Lonnie Cooper The main portion of the roof consisted of a large flat gravel area with parapets; the remaining area was made up of several smaller roofs, one covered with barrel tile and the other two with gravel. The two small gravel roofs were on the lower deck where the entrance to the house is located. Cooper reroofed the main gravel area and replaced missing tile on the small tile roof. However, notwithstanding the contract, he did not check the three smaller roofs for leaks. After the job was completed, he certified that the roof was in "satisfactory condition with no evidence of leaks at the time of inspection. (Petitioner's Exhibit 14). When the work was performed, Stewart believed that approximately 80 percent of the entire roof was being replaced and that the work was guaranteed. Stewart later repainted the small tile roof to improve its appearance. At the hearing, representatives of Cooper Roofing, Inc. agreed with Stewart that the area replaced represented about 80 percent of the entire roof. In April, 1979, Stewart and Romeo decided to sell their property. They listed the home with Respondents's employer, Don Capin, Inc., with an asking price of $275,000. The realtor accepted the listing knowing that the restoration project on the house was still underway, and was not yet completed. On April 18, 1979, Stewart gave the realtor an information sheet from which the firm prepared a brochure for inclusion in the Coral Gables Multiple Listing Service. The brochure described or stated the property's location, legal description, lot size, year built, improvements, taxes, price, terms, and procedure for inspection. It also included the following information: First Floor consists of 2 Large Apts: 3 Bedrooms 2 Baths, Large Living Room, NEW KITCHEN. 2 Bedroom 1 Bath, Living Room, NEW KITCHEN. Baths on First Floor are NEW, NEW ROOF, NEW CARPETING. NEW BLACK LAGOON POOL with Wood DECKING, Circular Drive, Entire Property is Walled In for Privacy Over 5000 Square Feet. (Petitioner's Exhibit 3) The listing included a proviso that it was made subject to omissions, errors and prior sale without notice. After reviewing the brochure several weeks later, Stewart noted a number of errors. Thereafter, on May 14, 1979, be prepared a corrected listing. In it, he changed the year the house was built from 1928 to 1930, modified the lot size from 90' x 120' to 89' x 122' and advised that the purchaser must qualify for assumption of the mortgage and be subject to escalating interest rates. (Petitioner's Exhibit 5). John F. Phillips, a salesman at Don Capin, Inc., received an inquiry concerning the property in May, 1979, from one Shirley Deitz, who had read an advertisement in the Miami Herald. Prior to this he had shown the house to only one other prospective buyer. Phillips took Dietz and her late husband to the property where they met Stewart. There Phillips accompanied Dietz and Stewart on an inspection of the house while Stewart explained the work done in the restoration project, including those areas that were not finished. During the inspection, Phillips and Dietz noted several items requiring repair. As is pertinent here, they included sagging and water-damaged ceilings in the living room, the upstairs hall, and above the kitchen sliding door. Stewart readily acknowledged that the ceilings had been damaged by a leaking roof, but advised the roof had been recently replaced. He also agreed to repair the sagging ceilings, and other items, prior to closing. Stewart claimed he told Dietz that only the parapet roof had been replaced; Dietz did not recall this, and Phillips was not privy to their conversation. Although the brochure stated that the entire property was "[w]alled in for privacy", there was no fence or wall on its west side. At the time of inspection, the property was enclosed on three sides by a concrete wall in front, and wooden fences in the back and on the east side. The missing wall was obvious to all, and Stewart made no effort to conceal it. In fact he agreed to construct a fence in the missing area prior to closing which was acceptable to Dietz. Stewart told her he intended to construct a wooden fence rather than a wall so that it would be compatible with the fences on the other two sides of the house and decking on the rear. There was no objection by Dietz. When the fence was constructed, it lay slightly over the property line and on the adjoining neighbor's property. This was caused by a water pipe which lay under the property line and required the foundation and fence to be placed beyond Stewart's property. Dietz executed a contract for sale and purchase on May 19, 1979. After an initial offer was rejected, the parties finally agreed upon a sales price of $225,000. The contract provided that: [s]ellers shall give credit at closing (to) repair ceilings in living room and hall upstairs, repair wall above sliding glass in upstairs kitchen, complete fence to west, property line, resurface driveway, and paint steps and porch to upstairs apartment. Prior to closing, Stewart repaired the ceilings, resurfaced the driveway, painted the steps and porch, and completed the fence as required by the contract. On or about Augusta 15, 1979, a closing was held on the property. Both parties were represented by counsel. Just after the closing, Respondent orally advised Dietz that the newly constructed fence on the west side was actually six inches over the property line and lay on Lot 4, her neighbor's property. Earlier that day Stewart had given Dietz a letter that she had signed and which acknowledged this problem. (Petitioner's Exhibit 7). The letter explained that a conveyance of the fence to the neighbor was necessary in order "to avoid any dispute with the owner of lot 4." However, Dietz claims she did not understand what this meant. At the closing Stewart and Romeo also executed a quit-claim deed conveying a strip of land...and fence lying approximately two feet from the east boundary of Lot 4..." to George I. and Rebecca Pope Stoeckert, who owned the adjacent property. (Petitioner's Exhibit 6). The document was prepared upon the advice of both parties' counsel although Dietz claimed it was never shown to her. Approximately one week after the closing a tropical storm swept through the Miami area and caused large amounts of rainfall. As a result, the ceiling in the house began to leak. Dietz complained to John Phillips, who told her that it should not leak because Stewart had recently had a new roof installed. Dietz attempted to contact Stewart but he was out of the State. She then called Cooper Roofing who, after a number of visits, ran a water test on her roof and found the lower deck to be leaking. This was the area that had not been replaced or repaired. Cooper advised her to get a roofing contractor to fix the leak. After finally contacting Stewart, he paid Andrews Roofing $900 to replace and repair a part of the barrel tile roof. The leaks continued and Dietz finally hired Fredrico Jaca, a roofing contractor, to inspect the roof. Jaca found the three smaller roofs needing repair and thereafter replaced "about two or three hundred feet of bad lumber" and about 500 square feet of tile. Dietz incurred the cost for making these repairs. In early November, 1979, George Stoeckert told Dietz that the fence between their property was actually 2.4 feet over his property line. He showed her a copy of a property survey to verify this. Dietz claimed this was the first time she was aware of the problem. Stoeckert then removed the fence in January, 1980, for ten months while he built a swimming pool and landscaped his yard. When it was rebuilt, the new fence was compatible with his own fencing rather than the one torn down. Stewart contended that neither the realtor or Dietz was misled. He stated he always advised that the house was rebuilt and that it had a new parapet roof, which covered approximately 75 percent to 80 percent of the roofing area. He believed the remainder had been patched and made watertight by Cooper Roofing, Inc. After learning of Dietz's dissatisfaction, he offered to re- purchase the house for what she had paid plus any moving expenses she had incurred; however, Dietz refused. Given the amount of money spent in remodeling the housed ($100,000), he considers the brochure representation that the house was "completely" rebuilt to be accurate. He further stated that he signed the quit-claim deed only after being advised to do so by both attorneys at the closing.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that all charges against Respondent be DISMISSED. DONE and ENTERED on this 5th day of March, 1982, in Tallahassee, Florida. DONALD R. ALEXANDER Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 5th day of March, 1982.
The Issue Whether one or more of the following penalties should be imposed on Sylvia Allen: revocation or suspension of Ms., Allen's practice, imposition of an administrative fine and/or any other relief that the Petitioner deems appropriate?
Findings Of Fact The Petitioner is the state agency charged with the responsibility to prosecute administrative complaints against registered roofing contractors in the State of Florida. Sylvia V. Allen is, and has been at all times material hereto, licensed as a registered roofing contractor in the State of Florida. Ms. Allen holds State of Florida license number RC 0046666. Ms. Allen was at all times material hereto the qualifying agent and the President of Lakemont Construction, Inc. of Park 20 West, 1250 Blountstown Highway, 1236-C, Tallahassee, Florida. In early 1987, Ms. Allen submitted a bid to the Department of General Services (hereinafter referred to as the "Department") for the reroofing and waterproofing of the National Guard Armory building (hereinafter referred to as the "Armory") located in Winter Haven, Florida. The bid submitted by Ms. Allen was for $96,536.00. The Department accepted the bid submitted by Ms. Allen and entered into a contract with her on March 31, 1987. Because the contract price was less than $100,000.00, no bond was required to be posted. On April 20, 1987, a notice to proceed/mobilize was issued by the Department to Ms. Allen. On or about April 29, 1987, Ms. Allen mobilized. Work on the project began on May 11, 1987. The first work performed on the project pursuant to the schedule of work to be performed was the removal of the existing roof and the placement of a temporary roof on the Armory. On May 20, 1987, Ms. Allen submitted a pay request to the architect for the project, Mr. Shafer. This request was forwarded to Thomas Berley, a project director for the Department. Mr. Berley received the request on May 26, 1987. Upon receipt of the request, Mr. Berley notified Mr. Shafer that Ms. Allen needed to provide the Department with a bar chart showing work progress on the project before the pay request could be processed. Efforts were then begun to try to locate Ms. Allen to inform her of this requirement. Mr. Berley was informed by Mr. Shafer that Ms. Allen could not be located. Therefore, Mr. Berley telephoned Ms. Allen's place of business in Tallahassee. Her telephone had been disconnected. Mr. Berley instructed another project director of the Department located in Tallahassee to go the Respondent's office. Mr. Berley was advised that no one was at the office. Ms. Allen's subcontractors were contacted in an effort to reach Ms. Allen. Mr. Berley was informed that the subcontractors could not locate Ms. Allen either and that no contact had been made by them with Ms. Allen since May 26, 1987. Mr. Berley received a copy of a June 2, 1987, letter from Mr. Shafer to Ms. Allen requesting that she contact him. On June 4, 1987, Mr. Berley sent a letter to Ms. Allen advising her of obligations and giving her seven days to indicate why she was not on the job. This letter was sent certified mail and was signed for on June 11, 1987. Work on the project stopped during early June, 1987. A third and final letter seeking to contact Ms. Allen was sent to Ms. Allen but was returned unopened. Because of the failure of Ms. Allen to contact the Department or the project's architect and because of concerns about the ability of the temporary roof to prevent water damage, the contract for reroofing the Armory was terminated at midnight, June 14, 1987. The concerns about the ability of the temporary roof to prevent water damage to the Armory were legitimate concerns. A temporary roof is only intended to keep water out for a short period of time. Work on the project should not have been stopped while the temporary roof was on the Armory. Failure to pay the pay request would not justify Ms. Allen's actions. On June 16, 1987, Ms. Allen contacted Mr. Berley by telephone. Mr. Berley notified Ms. Allen that the Armory contract had been terminated. On June 19, 1987, the Department received a proposal to finish the project using Ms. Allen's subcontractors. The cost of completing the project was $8,000.00-$9,000.00 more than Ms. Allen's bid price. Leaving a temporary roof on the Armory for three weeks was excessive. Once work began on this project, the work should have proceeded continuously until the new roof had been completed. While the temporary roof was on the Armory excessive damage could have occurred resulting in structural damage as well as cosmetic damage. Ms. Allen's actions constituted abandonment of the job. Ms. Allen's actions also constituted incompetence in the practice of contracting. Ms. Allen has previously been issued a letter of guidance from the Construction Industry Licensing Board.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Sylvia V. Allen be found guilty of having violated Sections 489.129(1)(k) and (m) , Florida Statutes. It is further RECOMMENDED that Ms. Allen be required to pay an administrative fine of $2,500.00 to the Petitioner. DONE and ENTERED this 1st day of December, 1988, in Tallahassee, Florida. LARRY J. SARTIN 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 1st day of December, 1988. APPENDIX Case Number 88-1997 The Petitioner has submitted proposed findings of fact. It has been noted below which proposed findings of fact have been generally accepted and the paragraph number(s) in the Recommended Order where they have been accepted, if any. Those proposed findings of fact which have been rejected and the reason for their rejection have also been noted. The Petitioner's Proposed Findings of Fact Proposed Finding Paragraph Number in Recommended Order of Fact Number of Acceptance or Reason for Rejection 1 1. 2 2. 3 3. 4 4 and 6-7. 5 8-9. 6 10. 7 11. 8 Hereby accepted. 9 12-13. 10 14. 11 15. 12-13 16. 14 6. 15 17. 16 19. 17-18 20. 19 18. 20 19. 21 21. 22 22. 23-24 23. 25 24. 26 Irrelevant. 27 25. COPIES FURNISHED: Elizabeth R. Alsobrook, Esquire Belinda H. Miller, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 Sylvia V. Allen 110 Dixie Drive, D2 Tallahassee, Florida 32304 Fred Seely Executive Director Department of Professional Regulation Construction Industry Licensing Board Post Office Box 2 Jacksonville, Florida 32201 Bruce D. Lamb General Counsel Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 Lawrence A. Gonzalez Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750
Findings Of Fact David Howard was initially paid on a piece work basis, $6.50 per hour. David Howard worked a total of 240 hours. Subsequently, David Howard asserted a claim for wages as a carpenter at approximately $8.54 per hour. Having been advised of the claim, REB, Inc. paid David Howard a corrected wage of $7.34 per hour as a lather, and issued a check to David Howard for the difference between $6.50 per hour and $7.34 per hour. This difference was paid in a lump sum. David Howard installed drywall at all times on the project to construct a municipal building in Tampa, Florida. Persons who install drywall are classed as both lathers and carpenters. A great deal of controversy exists concerning with which trade, carpentry or plastering, it should be associated. REB, Inc. is a subcontractor specializing in the installation of various wall units. The company did not hire any employees as carpenters but only as labors and lathers.
Recommendation Based on the foregoing findings of fact and conclusions of law the Hearing Officer recommends that the claim of David Howard be denied. Further, the Hearing Officer recommends that the Department of Commerce have prepared some form of pamphlet which outlines to claimants what they must prove if their case goes to a full hearing, and suggests to the claimant ways in which they can prove these essential allegations thereby permitting the Hearing Officer to make a determination of the case upon its merits. DONE AND ORDERED this 13th day of July, 1978, in Tallahassee, Florida. STEPHEN F. DEAN Hearing Officer Division of Administrative Hearings 530 Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Mr. David Howard 8422 North Hamner Tampa, Florida 33604 Luther J. Moore, Esquire Prevailing Wage Division of Labor 1321 Executive Center Drive, East Tallahassee, Florida 32301 Edwin D. Peck, Esquire 3637 4th Street, North Room 220 St. Petersburg, Florida 33704
