Findings Of Fact Jurisdiction findings Petitioner is the state agency charged with regulating licenses for roofing contractors in the State of Florida. At all times material to the allegations of these cases, Respondent held two licenses; he was a certified roofing contractor, license no. CC CO55580, and a registered roofing contractor, license no. RC 0060386. Respondent filed an application to qualify the company, D.S.S. & Sons, Inc., as a licensed roofing contractor; however, he failed to complete all documents necessary for licensure, and his application was closed for lack of response effective August 3, 1993. Respondent's address of record with the Department is 821 SW Dwyer Street, Port St. Lucie, Florida 34983. D.S.S. & Sons, Inc. is not now, nor has it ever been, licensed to perform roofing construction by the State of Florida. Facts common to all consumers On or about August 24, 1992, Hurricane Andrew struck Dade County, Florida, resulting in damage to hundreds of roofs. Roof repair or total replacement following the storm was not uncommon. Due to the large amount of damage, and the demand for roofing materials created by the volume of work to be performed, some contractors had difficulty obtaining roofing supplies. Additionally, some contractors had difficulty hiring qualified labor to perform the extensive roofing that was in great demand. The problems with obtaining materials and labor, however, were short term in that most roofing contractors made arrangements to bring in supplies and staff from other areas. In fact, by the time the work was to be performed in connection with these cases, the problems which had plagued the Dade County contractors were subsiding. Additionally, at all times material to these cases, the weather would not have been a factor to justify the delays complained of by these consumers. Rainy weather did not cause any prolonged work delays after the storm. Findings as to Helmly Charles Helmly resides at 11985 SW 98th Lane, Miami, Florida. His home was damaged by Hurricane Andrew and required roof replacement. Mr. Helmly contracted with Respondent to re-roof his home for the sum of $17,940.00. The contract was signed by Respondent's salesman, Felix Fowler, and identified D.S.S. & Sons, Inc. doing business as Darryl Saibic, Roofing Contractor as the licensed entity. Mr. Helmly paid an initial deposit of $5,382.00 in order for the Respondent to begin work on the project. The next payment, an additional $5,382.00, was to be due at the "dry in" stage of the job, with the final payment (the balance) due on completion. One of the contract provisions Mr. Helmly insisted upon was a completion deadline to be stated in the contract. He was expecting visitors and he was anxious to have the home re-roofed before their arrival. He insisted that a guaranteed completion date of March 7, 1993 be noted on the face of the contract. Mr. Helmly complied with all requirements of the payment schedule outlined by the contract. In fact, he remitted $10,764.00 even though the roof had not been at the "dry in" stage. Between January and February, 1993, the Respondent removed the old roof, installed a base sheet, and nailed a single ply roof membrane to the roof. After February, 1993, the Respondent failed to timely complete the Helmly roof. The value of the work performed by Respondent on the Helmly roof was no more than $3,588.00. The Respondent did not respond to numerous telephone calls and letters from Helmly, and threatened to place a lien on the Helmly property when Mr. Helmly attempted to cancel the contract in May, 1993. Mr. Helmly went to the Dade County Building Department and complained about roof leaks in June, 1993 (Respondent had still not done any further work). On or about June 4, 1993, Respondent sent a crew to the Helmly property to repair the roof. The repairs caused the roof to leak more. Respondent did not refund Mr. Helmly's money, did not complete the roof, and showed a gross indifference to the plight which resulted when he failed to timely complete the project. In July, 1993, desperate to have his roof completed, Mr. Helmly offered to purchase the tiles himself if Respondent would have a crew come install the new roof. Respondent agreed to have a crew install the tile within ten days of its arrival. On September 17, 1993, Mr. Helmly took delivery of the new tile, paid for it in full (a cost of $4,803.00) and notified the Respondent so that the installation could begin. Respondent never returned to complete the re-roofing. He failed to honor his verbal agreement to install the tiles. By letter dated October 1, 1993, Respondent offered to reimburse Helmly for the overage if he would hire another contractor to complete the job. On October 19, 1993, Mr. Helmly hired a new contractor who completed the installation of the new roof in early November, 1993. Approximately eight months after the deadline on Respondent's contract, Mr. Helmly had his new roof. Extra expenses totalling $2,936.21 were paid by Mr. Helmly as a result of the Respondent's abandonment of this job. Findings as to Gurdian On January 14, 1993, the Gurdians contracted with Respondent through his agent, Ed Comstock, to repair the roof on their home located at 13301 SW 110 Terrace, Miami, Florida. The contract was executed as D.S.S. and Sons, Inc. d/b/a Darryl S. Saibic, Roofing Contractor and called for a total payment of $7,725.00 for the work to be done. The Gurdians made a deposit of $2,300.00 on January 14, 1993 by check made payable to D.S.S. and Sons, Inc. and received a partial release of lien. On February 8, 1993, the Respondent pulled a permit for the Gurdian home but never called for inspections on this project. In February, 1993, all the tiles were removed from the roof and roofing paper was installed. On March 1, 1993, the Gurdians made a second payment of $2,300.00 by check made payable to D.S.S. and Sons, Inc. and received another partial release of lien. The Respondent did not timely complete the Gurdian roof. From June through November, 1993, Respondent sent the Gurdians unsigned notices claiming he would return to their job but did not do so. Numerous excuses were offered as to why the project was not completed; however, none of these had merit. The Gurdians waited until April, 1994 hoping the Respondent would return and complete the work. They drove to Respondent's office and left a message seeking assistance. Finally, Respondent recommended a company called CTI to complete the roof work for the Gurdians. When contacted, CTI told the Gurdians it would cost $7,600.00 to complete their job for which they, not Respondent, would be responsible. The Gurdians then attempted to notify the Respondent at his address of record by certified mail of their continuing problems but the letter was returned to them unopened. In June, 1994, the Gurdians hired another company to finish their roof which was finally complete and passed inspections on July 26, 1994. The Gurdians were required to pay a total of $13,475.00 to have their roof replaced because the Respondent failed to perform under the original contract. Due to the Respondent's abandonment and indifference in connection with this project, the Gurdians were damaged in an amount not less than $4,200.00. The value of the work performed by Respondent on the Gurdians' roof did not exceed $1,545.00. Respondent has not refunded any of the funds paid by the Gurdians. Findings of fact as to Vila Marta Vila resides at 11116 SW 133 Place, Miami, Florida 33186. Like the others discussed above, the Vila home was damaged and required a new roof. On January 13, 1993, Vila signed a contract with Ed Comstock acting on behalf of D.S.S. and Sons, Inc., doing business as Darryl S. Saibic, Roofing Contractor, to have her roof repaired for a total contract price of $7,200.00. A down payment of $2,160.00 made payable to the company was made at that time. On February 8, 1993, Respondent pulled a permit to re-roof the Vila home. On February 15, 1993, Vila paid an additional $2,160.00 to Respondent. At that time Respondent removed the tiles from the Vila roof and installed one layer of roofing paper over the roof decking. Despite representations from Respondent that new tiles would be delivered in approximately three to four weeks, the Respondent did not install a new roof on the Vila home. In February and March, 1993, the roof was patched three times to stop leaks but no substantive work was performed to install new tiles. Respondent did not return to the Vila home despite numerous requests from the homeowner for the work to be completed. In June, 1993, Respondent represented that the Vila job might be completed if the tiles were sent out COD. When Vila attempted to verify that information, she was told she had paid enough to not have that concern. However, no tiles were ever delivered to her home. In August, 1993, Vila, after Respondent failed to return telephone calls, wrote to Respondent and demanded a refund. She has not received one. Vila ended up paying $7,754.00 to another contractor to have her roof replaced. The value of the work performed by Respondent on the Vila project did not exceed $1,440.00 yet he has failed or otherwise refused to refund the difference between that amount and what she paid. Vila has suffered monetary damages in an amount not less than $4,800.00 as a result of Respondent's abandonment of this project. Findings of fact as to Bermudez Mr. and Mrs. Bermudez reside at 8335 SW 147th Place, Miami, Florida. On November 30, 1992, they signed a contract with Respondent in the amount of $6,400.00 to correct extensive leakage on both floors of the Bermudez home. Mrs. Bermudez gave a deposit in the amount of $1,860.00 and was told that the repairs would begin in two weeks and be completed in approximately five weeks. In December 1992, and January, 1993, the Respondent performed some minor patching but no significant work was undertaken to repair the Bermudez home. In January, 1993, Respondent pulled a permit to replace the Bermudez roof. Within a week of the permit, Respondent sent an unsigned form letter to the Bermudez advising them that there would be delays. In February and March, 1993, the Respondent's crew stripped the old tile off the Bermudez home and installed batten and roofing paper over the decking. Mrs. Bermudez made deposits totalling $3,720.00 to Respondent in connection with this contract. Despite numerous requests from Mrs. Bermudez, Respondent did not complete the roof. In July, 1993, Respondent sent a crew to the Bermudez home in connection with a leak but the repair did not resolve the problems and did not substantively finish the roof. As with the other cases, between July and November, 1993, Respondent sent numerous unsigned form letters to Mrs. Bermudez offering false or ridiculous excuses for why the project had not been completed. In January, 1994, Mrs. Bermudez filed a formal complaint against Respondent but he never completed the job nor refunded the deposits. Between March and July, 1994, Respondent represented he would complete the Bermudez job but did not do so. The Bermudez roof was not completed until December 13, 1994. As a result of Respondent's incompetence, inability, or refusal to complete the Bermudez roof, the family lived with a leaking roof for approximately two years and incurred unnecessary expenses. Respondent showed a gross indifference to the plight of the Bermudez family. Respondent could not have timely completed the projects described above during the period July, 1993 to July, 1994, as his workers compensation had expired. The numerous promises to perform the contracts as originally agreed were meaningless.
Recommendation Based on the foregoing, it is, hereby, RECOMMENDED: That the Department of Business and Professional Regulation, Construction Industry Licensing Board enter a final order revoking Respondent's licenses, requiring Respondent to make full restitution to the consumers in these cases before being entitled to seek new licensure, imposing an administrative fine in the amount of $10,000, and assessing costs of investigation and prosecution of these cases as set forth in the affidavits filed in this cause. DONE AND RECOMMENDED this 25th day of October, 1995, in Tallahassee, Leon County, Florida. JOYOUS D. PARRISH Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 25th day of October, 1995. APPENDIX TO RECOMMENDED ORDER, CASE NOS. 95-1079, 95-1080, 95-1081, 95-1082 Rulings on the proposed findings of fact submitted by the Petitioner: 1. Paragraphs 1 through 155 are accepted. Rulings on the proposed findings of fact submitted by the Respondent: 1. None submitted. COPIES FURNISHED: Elizabeth Masters Senior Attorney Department of Business and Professional Regulation 7960 Arlington Expressway, Suite 230 Jacksonville, Florida 32211 Darryl Saibic 821 S.W. Dwyer Road Port St. Lucie, Florida 34983 Richard Hickok Executive Director Department of Business and Professional Regulation Construction Industry Licensing 7960 Arlington Expressway, Suite 300 Jacksonville, Florida 32211-7467 Lynda L. Goodgame General Counsel Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792
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 At all times relevant hereto, Respondent was licensed as a roofing contractor by the Construction Industry Licensing Board, having been issued license number CC CO24406. Respondent contracted with Michael Cirulnick on or about June 21, 1986, to replace his flat tar and gravel roof. The contract was for $900 and provided a five year guarantee against leaks. The City of Sunrise required a permit for this job, having adopted by local ordinance sections 301 et seg. of the South Florida Building Code. Prior to contracting with Respondent, Cirulnick had obtained a bid from Code Three Roofing Company. He did not sign a contract with Code Three and did not know that Code Three had applied for a permit. Cirulnick did not tell Respondent that he already had a permit on the job. Respondent performed the job without obtaining a building permit or inspections. Approximately two weeks after the job was finished, at the first hard rain, the roof began to leak in new areas. After the job, leaks developed twenty-four feet from the valley of the adjoining sloped roof to the right and twelve feet to the left, corresponding to the kitchen sliding door and the dining room sliding door. Cirulnick called Respondent for 6 to 8 weeks before finally reaching him in response to the leaks, at which time Respondent promised to repair them. Respondent claimed that he was contacted approximately two weeks after the job was completed. He blamed the new leaks on the sloped shingle roof and refused to repair them under his guarantee. Cirulnick contacted the City of Sunrise after repeated unfulfilled promises from Respondent that he would attend to the problem. When Cirulnick learned that no permit or inspections had been obtained, he contacted the Department of Professional Regulation. In 1987, in response to Cirulnick's complaints, Respondent sent Walter Harris, who told Cirulnick he was with "American Roofing". He told Cirulnick that the problem was with the way the flat roof was tied into the sloped roof, and called the job "terrible." He made repairs to the tie-in where the flat tar and gravel roof connected to the sloped shingle roof, which repairs stopped the leaks over the living and dining room sliding doors, but not the leak by the kitchen doorway beneath the area where the valley of the sloped roof ties in with the flat roof. Respondent obtained a permit and final inspection based upon his affidavit filed with the City of Sunrise in December of 1987, 1-1/2 years after he completed the Cirulnick job. Eugene Gardner, Building Official for the City of Sunrise, had inspected the Cirulnick roof when the shingle roof had been installed. This was shortly before Cirulnick purchased the property. When Gardner was there, there was no black roof cement in the valley of the sloped shingle roof. Cirulnick examined the roof both before and after Respondent worked on the roof. The black substance over the shingles was put there by Respondent. The leaks which developed after Respondent finished the job related directly to the areas where the flat roof joins or ties into the sloped shingle roof. Leaks developed in both the kitchen and dining eating areas, by the sliding glass doors. These are situated where the flat and sloped roofs meet. The leaks continued from June of 1986 until Walter Harris was sent out to do repairs, approximately February of 1987. His repairs stopped these leaks but not the leak in the kitchen doorway, situated under the area where the valley in the sloped roof joins the corner of the flat roof. That leak still exists. Petitioner called Robert Hilson as its expert. Respondent called Kirk Keuter. Both experts examined the roof in May of 1988. Keuter found the work to be within professional standards and blamed the leaks on the shingle roof valley. He was unable to explain the cause of the leaks. He testified that "As near as I can ascertain" the base sheet of the flat roof was properly tucked under the existing old material on the sloped shingle roof. He admitted that the leaks complained of by Cirulnick were coming from the valley which tied into the flat roof, but claimed that the leaks were above the tie-in. Although Walter Harris admitted making repairs well after the original job was done, Keuter claimed that had repairs been made after a couple of months from the original work, he would have been able to detect them. Yet, Keuter failed to see the repairs made by Walter Harris in approximately February of 1987. The testimony of Hilson was persuasive. In comparison with Keuter's eight years of experience, Hilson has been in the roofing business for 25 years and has been the chairman of various technical and roofing code committees. He was able to determine that the shingle roof had been applied over the original shingle roof, a fact which came out at the hearing during the testimony of the Sunrise Building Official, Eugene Gardner. He was also able to explain why the roof leaked after Respondent replaced the flat roof. The flat roof was not properly tied into the sloped roof, allowing water to run under the roofing material where the two roofs joined. Additionally, the black cement Respondent had placed above the shingles in the valley of the sloped roof in the corner where the flat roof joined the sloped roof was trapping water, causing water pockets to form, from which leaks developed. This explanation is consistent with the history of the leaks. They developed only after the flat roof was replaced. The leaks coming from the tie- in stopped when Walter Harris made his repairs. The leaks originating from the valley came from the black cement which was improperly applied above the shingles in the valley. Wayne Roper was called by Respondent to testify that he saw areas of leak damage in the kitchen and back porch. He hesitantly remembered damage in the dining area as well. However, this testimony had little meaning since the entire shingle roof had been replaced shortly before Cirulnick purchased the property. There was no evidence as to the cause of or age of the interior damage described by Roper. Respondent failed to respond to the complaints of the homeowner until the Department of Professional Regulation and the City of Sunrise got involved. Cirulnick had been calling Respondent for over a month and a half. When (and if) Respondent did look at the job, he blamed the new leaks on the shingle roof and refused to repair any of them under his guarantee. Although he sent Walter Harris out to make repairs in approximately February of 1987, he did not repair the leaks associated with the water pocketing in the valley of the sloped roof where he had placed the black roof cement. Despite Respondent's contractual guarantee, the leaks in the kitchen emanating from the area where the valley ties into the flat roof, were not repaired. Respondent entered into a contract with Rolden W. Jones in April of 1986 to repair several leaks at his house and recover the breezeway between the house and garage for $750. The Jones house was located in Delray Beach. In Delray Beach, any roofing contractor must hold an occupational license. Respondent did not hold an occupational license in Delray Beach under his own name or "American Roofing". A permit was required for this job under the applicable building code and ordinances then in effect. Respondent did not obtain a permit or call for inspections for the Jones job. Respondent told Jones that Respondent held a "tri- county license" and was authorized to work and pull permits in the City of Delray Beach. Respondent operated under the name "American Roofing", which appears prominently on his contract with Jones. Respondent never placed "American Roofing" on his license or otherwise qualified said company. Before Respondent commenced work on the residence, and pursuant to the agreement between Jones and Respondent, Jones took off the existing tar paper but did not remove the nearby tile. Respondent began the job by tearing off the garage roof tile by the breezeway and putting down new tar paper. He did not repair the leak at the northeast corner of the house or by the front door. The leaks persisted with the rain since they had not been repaired. In response to Jones' calls Respondent did come out one time to place some compound on the roof to help stop the leaks, but thereafter failed to return to finish the job. Jones paid Respondent $500 the day Respondent commenced working. Jones never paid Respondent the additional $250 called for by their contract since Respondent failed to return to complete the job and failed to return Jones' phone calls or to claim the registered letter Jones sent to him. Respondent admitted that he did not finish the job, stating: "Because it was not real high priority, undoubtedly, I didn't give it priority." E. J. Brodbeck & Sons, Inc., finished the work on Jones' roof for a cost of $1077.65. Michael Brodbeck, who performed the work, found that the only area which had been worked on was the breezeway. He found the job incomplete. On September 25, 1986, Andrew Jackson, an unlicensed contractor doing business as Jackson Renovation Enterprises, entered into a contract with a company known as Madco. The contract was for $7,000 to install a new roof system on the roof of a commercial building owned by the company. Respondent knew that Jackson was not a licensed roofing contractor. Jackson had previously made an arrangement with Respondent whereby Jackson would pay the cost of permits and 10% of the contract price to Respondent in return for having his company qualified by Respondent and having Respondent pull the necessary permits. Respondent's only duty was to pull the permit. Pursuant to this arrangement Jackson contacted Respondent and, in Respondent's words, told him "I got a $7,000 contract and let's go ahead and do it." Respondent obtained the building permit. He listed the owner as "Jackson" and the job as "roof repairs & coating" for $6,500. On one occasion Respondent went to the job site. While he was there, he took a photograph of Jackson installing Madco's new roofing system. Respondent did not supervise or in any way participate in installing Madco's roofing system. The president of Madco, Samuel Weiss, dealt only with Andrew Jackson. Until a few months prior to the final hearing he had no knowledge of Respondent, never having met with or heard of him. After the roof was installed by Andrew Jackson it consistently leaked, in one instance causing a fire and major damage. In accordance with the understanding between Respondent and Jackson, Jackson paid Respondent the cost of the permit fee plus 10% i.e., $700.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered revoking Respondent's roofing contractor's license number CC C024406. DONE and RECOMMENDED this 25th day of January, 1989, at Tallahassee, F1orida. LINDA M. RIGOT, Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 25th day of January, 1989. APPENDIX TO RECOMMENDED ORDER, CASE NOS. 87-4392, 87-4393, 87-4398 Petitioner's proposed findings of fact numbered 2- 19, 23-30, and 37-43 have been adopted either verbatim or in substance in this Recommended Order. Petitioner's proposed finding of fact numbered 44 has been rejected as being subordinate. Petitioner's proposed findings of fact numbered 1, 20-22, 31-36, and 45-47 have been rejected as not constituting findings of fact. Respondent's first, second, ninth, eleventh, twelfth, fifteenth, and sixteenth unnumbered paragraphs have been rejected as being contrary to the weight of the credible evidence in this cause. Respondent's third and fourth unnumbered paragraphs have been rejected as being subordinate. Respondent's fifth, sixth, seventh, thirteenth and seventeenth unnumbered paragraphs have been rejected as not being supported by the weight of the credible evidence in this cause. Respondent's eighth, tenth, fourteenth, and eighteenth unnumbered paragraphs have been rejected as not constituting findings of fact. COPIES FURNISHED: Fred Seely, Executive Director Construction Industry Licensing Board Post Office Box 2 Jacksonville, Florida 32201 Michael J. Cohen, Esquire 517 Southwest First Avenue Fort Lauderdale, Florida 33301 George W. Harrell, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 Office of the General Counsel Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 John C. Moppert, Esquire 7491 West Oakland Park Boulevard Suite 207 Lauderhill, Florida 33319
The Issue Whether disciplinary action should be taken against Respondent’s license to practice contracting under License No. CCC 057995, based on the violations of Subsection 489.129(1), Florida Statutes (2005).
Findings Of Fact Based on the evidence and testimony of the witnesses presented and the entire record in this proceeding, the following facts are found: At all times material hereto, Respondent was a certified general contractor, having been issued License No. CCC 057995 by the Department. At all times material hereto, Respondent was the qualifier of Victor's Roofing Co., Inc., of the Florida Keys. On January 14, 2005, Respondent entered into a contract with Bobby McElroy to re-roof McElroy's residence located in Punta Gorda, Florida. The roof had been damaged during Hurricane Charley the previous year. The contract price was $23,750, of which McElroy paid $15,800 in advance. Of the advance funds, $7,850 was designated as payment to take off the old roof and install felt and metal flashing, and $7,950 was designated for installing tiles on the roof. The balance ($7,950) was designated for the remainder of the work, i.e., replacing water damage, installing 90-pound roll-roofing slate over the felt, obtaining permits, and payment of dump fees. Respondent commenced work on the McElroy residence on March 8, 2005, by removing and disposing of the existing roof tiles, doing repair work, installing 30-pound felt paper, and "hot mopping" the roof. The purpose of the "hot mopping" was to protect the roof pending installation of the new roof tiles. Respondent opined at final hearing that the completion of "hot mopping" constituted a new roof. The new roof tiles were, in his opinion, only for aesthetics. McElroy was advised that it would take six weeks or so, and possibly even up to 18 weeks, for the new tiles to arrive. Respondent came to McElroy's house on June 27, 2005, some 12 weeks after Respondent had commenced work on the roof, with a tile order form. The tiles listed on that form, however, were Capri Pinto Blend tiles, not the Capri Hope tiles that McElroy had decided upon. The tile order form was dated January 20, 2005, but McElroy said he had not even made up his mind about which tiles to order until February 16, 2005. McElroy believes the date on the order form was wrong or had been changed by someone. The date at the top of the tile order form was January 20, 2005. However, the form listed June 27, 2005, as the order date and also as the ship date. The form indicated a check was received from "Victor's Roofing" on June 27, 2005. None of the testimony at final hearing cleared up this discrepancy. Respondent advised McElroy on June 27, 2005, that Capri Hope tiles were no longer being manufactured, but McElroy had reason to believe that representation was in error. The evidence on this point was uncorroborated hearsay from McElroy, who said he was told by the manufacturer that the Capri Hope tiles were still being made. Respondent presented uncorroborated hearsay testimony that a representative from the company told him the tiles had been discontinued. There was no competent and substantial evidence presented as to whether the tiles had been discontinued or were still available. McElroy apparently and reluctantly acquiesced to the Capri Pinto Blend tiles, and the tiles valued at $4,837.20 were delivered to McElroy's residence on or about June 30, 2005. However, Respondent did not return to install the tiles and has done no work on McElroy's house since May 26, 2005, i.e., prior to the new tiles being ordered. In October 2005, Respondent apparently picked up the Capri Pinto Blend tiles from McElroy's home pursuant to instructions from McElroy. Another hurricane was approaching, and McElroy was worried that the tiles may blow off the roof where they were stacked. At final hearing McElroy testified that the last time he saw Respondent was when the Capri Pinto Blend tiles were removed from his property. However, in the chronology of events in McElroy's complaint to Petitioner, which McElroy testified was true and accurate, there is no mention of the tiles being removed. This inconsistency was not cleared up at final hearing. In February 2006, McElroy hired a second contractor to "finish" his roof. However, at that time, McElroy decided to upgrade to a metal roof. The cost of the upgraded roof was $25,200, which included some roof preparation in addition to what Respondent had previously done and the cost of the new metal roof. There was no testimony as to the value of the services that Respondent provided to McElroy before Respondent ceased working at the McElroy's residence, but it is clear that extensive work was done. It is also clear that Respondent did not complete the job by installing the Capri Pinto Blend tiles and did no work on the job since May 2005 (except for picking up the tiles in October 2005). Petitioner submitted an affidavit indicating that the total investigative cost of this case to Petitioner, excluding costs associated with any attorney's time for DBPR Case No. 2006-003419, was $297.83. The hearsay affidavit was not corroborated by other competent evidence. On November 8, 2004, Respondent entered into a contract with Larry Mesler to re-roof Mesler's residence located in Punta Gorda, Florida. The roof had been damaged by a hurricane during the previous year. The copy of the contract entered into evidence is essentially unreadable, but the parties stipulated that a contract existed between them. The contract price was $30,000, of which amount Mesler paid $20,000 (a $10,000 down payment and $10,000 more when the roof tiles were ordered). The down payment covered the removal and disposal of the old tiles, as well as the "hot mopping" process. The second payment covered the purchase and delivery of the tiles for Mesler's roof. The final $10,000 was apparently to cover the cost of installing the new tiles, but there was no clear evidence presented at final hearing as to that fact. In April 2005, roof tiles for the project were delivered to Mesler's residence. Mesler was concerned about the number of broken tiles, but no evidence was presented to indicate there were insufficient tiles to complete the job. It took until July 7, 2005, for a building permit to be obtained for commencement of the roofing work. This was during a period of time that numerous roof repair jobs were going on following Hurricane Charley, which had hit the area in 2004. The roof tiles were installed by Respondent, but it is unclear from the evidence as to how much of the job was completed. The testimony at final hearing was extremely sketchy as to whether Respondent installed some or none of the tiles. It is clear, however, that the job was not completed to Mesler's satisfaction. Mesler was unsuccessful in his attempts to contact Respondent to finish the job. At some point Mesler hired another contractor and paid him $16,550 to complete the roofing job. That amount included purchase of additional tiles, but the contract, as well as Mesler's testimony, is unclear as to how much tile was ordered or the extent of the additional work. Nor is the testimony clear as to when Respondent last performed work on Mesler's home. Petitioner submitted an affidavit indicating that the total investigative cost of DBPR Case No. 2006-006820 to Petitioner, excluding costs associated with any attorney’s time, was $351.07. The hearsay affidavit was not corroborated by other competent evidence.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is: RECOMMENDED that a final order be entered by Petitioner, Department of Business and Professional Regulation, Construction Industry Licensing Board: Finding that Respondent, Victor Harris, d/b/a Victor's Roofing Company, Inc., of the Florida Keys, abandoned the McElroy project and imposing an administrative fine in the amount of $1,000; and Dismissing the Administrative Complaint against Respondent as to the Mesler project. DONE AND ENTERED this 6th day of January, 2010, in Tallahassee, Leon County, Florida. R. BRUCE MCKIBBEN Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 6th day of January, 2010. COPIES FURNISHED: G. W. Harrell, Executive Director Construction Industry Licensing Board Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792 Reginald Dixon, General Counsel Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792 Sorin Ardelean, Esquire Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399 Victor Harris Victor's Roofing Co., Inc. of the Florida Keys 5409 Overseas Highway, Suite 254 Marathon, Florida 33050-2710
Findings Of Fact Bruce A. Williams, Respondent, is the holder of a registered roofing contractor's license from the Florida Construction Industry Licensing Board. The license number is CC C020246. Respondent is vice president of Dean Roofing and Sheet Metal, Inc. (The Dean Company), Post Office Box 2077, Clearwater, Florida. By proposal submitted March 31, 1983, and accepted by Marshall Kent on April 1, 1983, the Dean Company contracted to remove the existing roof on Kent's residence and replace same at a price of $8,600 (Exhibit 1). The work was supposed to start April 11, 1983 and be completed on April 15, 1983. This contract was signed on behalf of Dean Company by Bruce A. Williams, Respondent, as vice president of Dean Company and by Marshall Kent. Kent is an experienced residential contractor who acknowledged having built approximately 2,000 homes. While removing the existing roof, Dean Company workers found the 30-year old house had three plys of roofing applied since the house was constructed and to remove this thick roof heavier equipment that normal was required. Kent's residence had a tectum roof decking which consists of a metallic-fiber substance which has a long life and serves as inside ceiling and outside roof decking over which built up roofing is applied. While removing the existing roof the tectum deck was fractured and Kent ordered Dean Company workers off the Job. By letter dated April 18, 1983 (Exhibit 6) Respondent advised Kent that the cost of replacing the damaged tectum would be borne by the Dean Company and it was necessary to get on with the project before additional damage was done through the areas of roof exposed by removal of the original roof. Upon seeing Exhibit 6, K. A. Williams, president of Dean Company and father of the Respondent, concluded that the problems may have been exacerbated by a personality conflict between Respondent and Kent, and turned the job over to R. L. MacMurry, another vice president at Dean Company, who had considerable experience in the roofing business. By letter dated Apri1 19, 1983 (Exhibit 7) MacMurry, on behalf of Dean Company, advised Kent that since he questioned their ability to properly install the new decking to replace the damaged decking they would employ the services of a general contractor to replace the damaged tectum, and if the replaced tectum did not match the original tectum they would have the entire ceiling painted. Kent denies receiving this letter. Kent refused these offers and by letter dated April 21, 1983 "Exhibit 8) R. A. Williams pointed out that Kent's refusal to allow Dean Company to immediately complete the roofing work in progress could lead to serious damage from water intrusion and that such damage would be Kent's responsibility. On Friday, April 29, 1983 a meeting was held between the Kents, Williams and MacMurry at which Dean Company -agreed to immediately recommence roof work, bring in a general contractor to replace the damaged decking and complete the contract. Kent demurred until the agreement was reduced to writing, preferably by an attorney. Kent prepared an endorsement on Exhibit 9 in which responsibility for the repairs was, in Kent's opinion, shifted to the general contractor. This endorsement was accepted by the parties on May 3, 1983. The residence was reroofed in accordance with the latter agreement and Kent never advised Dean Company that all work was not satisfactorily completed. Dean Company provided Kent with a five (5) year Roofing Guarantee (Exhibit 11) dated May 10, 1983, which was forwarded to Kent by letter dated May 11, 1983 (Exhibit 10) with an invoice for the total owed on the job (Exhibit 14). Kent responded with letter dated May 17, 1983 (Exhibit 23) contending he was not whole, the job was not. complete and the guarantee was a joke. Kent considered the Roofing Guarantee suspect because it was a form used by the Midwest Roofing Contractor's Association. Shortly after this time Kent was hospitalized for psychiatric treatment and upon his release from the hospital in August 1983 he found that a mechanic's lien had been placed on his property by Dean Company. He also found what he believed to be leaks into the ceiling of a bedroom but made no complaint to Dean Company. Kent then hired a roofer, Chuck Goldsmith, to inspect the work done on his roof. When Goldsmith tried to negotiate the dispute between Kent and Dean Company, Kent fired him. Kent then hired William A. Cox, an architect and roofing consultant, to inspect the roof and advise what needed to be done. Cox inspected the roof in late October 1983 and submitted a list of discrepancies he recommended for correction. In one place he was able to insert a knife blade between the Fla. roof and the vertical wall against which the roof abuts which indicated no sheathing had been installed. Expert witnesses opined that without metal sheathing the roof would have leaked within six to eighteen months and the roof could never have been intact for the 30 years the house had been built without sheathing at such a joint. The vertical side of the original flashing would have been under the stucco at this point and there was no evidence that the stucco was disturbed when the new roof was first installed by Dean Company. New flashing was subsequently installed by Dean Company at this juncture but no one testified respecting the flashing observed or not present when this new roof was removed to insert the new flashing. Failure to insert flashing at such a juncture of horizontal roof and vertical wall would constitute a violation of the Standard Building Code. The report Cox gave to Kent was not made known to Dean until January 1984. By letter dated August 21, 1984 (Exhibit 13) Clark and Logan advised K. A. Williams that they would do all of the work listed in the Cox report on the Kent residence. This work was done in August 1984. Kent contends the leak continued in his bedroom after the work was completed but he never relayed this information to either Clark and Logan or to Dean Company. He has yet to pay one penny for the work done on his roof. Kent considered Clark and Logan to be the prime contractor on the job at the time the August 1984 work was done. Kent further testified that following that work Clark and Logan abandoned the job and he also filed a complaint against that general contractor. Since April 1983 following the damage to the tectum decking, Respondent, Bruce Williams, has had no responsibility for, and did no supervision of, the reroofing of Kent's residence. When the roof was inspected by the Pinellas County Building Inspector he found the workmanship done on this job only slightly below standard. At one place-on the roof Cox found the lower section of flashing overlapped the upper section of flashing which would have permitted water to enter under the flashing. This was a mistake but not an uncommon one for roofers to make. When pointed out to Dean Company the situation was promptly corrected.
The Issue Whether the Respondent aided and abetted an unlicensed contractor by obtaining a permit for a roofing job performed by the unlicensed contractor; Whether the work on the job failed to fully comply with the local building codes; Whether the Respondent gave a guarantee on the job and thereafter failed to reasonably honor the guarantee; and Whether Respondent failed to properly supervise the job site activity.
Findings Of Fact At all times material to this action, Respondent was licensed by the Construction Industry Licensing Board as a registered roofing contractor, holding License No. RC0030450. Carol Kilgore is the daughter of Beula Relihan, who owns a rental home located at 207 East Selma in Tampa, Florida. Mrs. Relihan is 86 years old, and for several years Mrs. Kilgore has been managing the property. In early 1987, Mrs. Kilgore was involved in obtaining estimates to replace the roof at the rental home. After obtaining estimates from contractors listed in the yellow pages, which Mrs. Kilgore felt to be high, Mrs. Kilgore responded to an advertisement for roofing work located in the Money Saver. She called the number listed in the advertiser, talked to Leroy Rison, and asked him to come to the house and give her an estimate. On or about February 26, 1987, Leroy Rison and his nephew, Gary Terrell, visited Mrs. Kilgore after looking at the job site, and wrote out an estimate for replacing the roof of $1,650.00. Mr. Terrell wrote the proposal which reflected the work to be done, the price, and the proposed beginning and finishing date. However, before any contract was entered into, Mrs. Kilgore discovered that neither Rison or Terrell were licensed contractors. She explained that she wanted only a licensed contractor who could pull the permit to perform the work. Although Mr. Terrell and Mr. Rison are willing to work for a homeowner if the homeowner will obtain the permit, Mrs. Kilgore insisted that she wanted a licensed contractor. Therefore, Mr. Rison recommended the Respondent, and later called the Respondent to advise him of the job. The next day, February 27, 1987, Respondent met Mrs. Kilgore and wrote a contract proposal on a form with a printed heading "MacDill Roofing", to which in handwriting was added "& Services." Respondent operates under the name of, and is the qualifying agent for, MacDill Services. The contract prepared by the Respondent merely copied the proposal submitted by Terrell and Rison, including the same price and the same misspelled words. The contract was accepted and signed by Ms. Kilgore's mother. Mrs. Kilgore paid Respondent $650.00, with the balance to be paid upon successful completion of the contract. Work was scheduled to begin the following day, Saturday, February 28, 1987 and be completed by Monday, March 2, 1987. The following Saturday work began. Respondent obtained the permit for the job, and apparently purchased the materials and had them delivered. Leroy Rison worked on the job and hired the laborers. Gary Terrell also worked on the job. One of the men Rison hired, Earl, worked for a roofing company during the week but did not have a license. Mr. Rison could not remember the name of any of the other men who worked on the job. Leroy Rison was not an employee of MacDill Roofing or MacDill Services, but he had worked for Respondent on other occasions. Although Respondent contends that he went by the job site on three or four occasions, staying at the job site between 1 and 2 hours on each occasion, his testimony is not credible. Charles Doty, who was the tenant in the rental home, had received a leg injury which forced him to stay home during this entire period of time. The only time Mr. Doty was gone was for an hour and half on Saturday to attend a therapy session. Mr. Doty never saw Respondent on the job site, although he had heard Respondent's name mentioned by Mr. Rison. Mrs. Kilgore also visited the job site on several occasions and she never saw the Respondent at the job site. Respondent simply did not supervise the job site activities. On March 3, 1987, the roof was scheduled for final inspection by the building department. Mrs. Kilgore went to the house to wait for the building inspector. After several hours, she left to get a soft drink. She was gone only five minutes, but when she returned, she discovered that the building inspector had come and gone, and a "green tag", indicating that the house had passed inspection, had been left on the porch. Mrs. Kilgore was very upset because she felt that the roofing work had not been done properly. She went to the building supervisor at City Hall and asked him if he could send the inspector back to the house so that she could point out the problems. The building supervisor agreed to send the inspector back to the house. The building department inspector was Terry Scott. On March 3, 1987, Mr. Scott had approximately 20 or 25 inspections to do. When he first went to the house he just looked around quickly and left a green tag. He admitted that a thorough inspection was only done if a homeowner complained. When Mr. Scott returned to the house on March 3, 1987, he still did not do a thorough inspection. However, he did issue a "red tag" which listed certain deficiencies that would have to be corrected before the roof could pass inspection. The red tag required that the contractor "replace bad wood where needed and install drip-edge where needed." Normally, when a red tag is issued, the contractor corrects the deficiency and calls for another inspection. That did not occur in this case. On April 9, 1987, Inspector Scott met Mr. Park at the job-site to discuss problems with the roof. On that day, a more thorough inspection was performed. Another red tag was issued and the following deficiencies were noted: "Bad wood not replaced--Wall flashing not properly installed. Flashing around chimney not proper--Felt under drip-edge." Respondent did not correct these deficiencies and never called for another inspection. The permit expired without the roof being approved by final inspection. Although not all the deficiencies noted in the inspection constitute code violations, the Tampa Building Code does require that rotten wood be replaced and the contract specified that the rotten decking would be replaced. Nevertheless, after Respondent completed the job, rotten wood remained in place. The replacement of the rotten wood was noted in both red tags. Respondent never attempted to correct this deficiency. On the day the property initially passed inspection, March 3, 1987, Respondent called Mrs. Kilgore and requested the remaining $1,000 owed on the contract price. Mrs. Kilgore refused to pay the Respondent since she was dissatisfied with the work and the first red tag had issued. At some point, apparently after the red tag issued in April, Respondent decided that he was not going to get any more money from Mrs. Kilgore. Other than asking for the money on March 3, 1987, Respondent has not attempted to collect the remainder of the money from Ms. Kilgore; however, he has also not attempted to correct the code violations and other deficiencies. Since Respondent did not collect the remainder of the money owed, Respondent did not pay Leroy Rison, and Mr. Rison did not pay the laborers who performed the work. As the contractor on this job, Respondent had full responsibility for ensuring that the work was done properly and that the roof passed final inspection. Respondent failed to supervise the work on the job, and the re- roofing was not done in a workmanlike manner. In essence, Respondent abdicated his responsibilities as the contractor on the job, and allowed the work to be performed by unsupervised unlicensed persons. The roofing material used was supposed to be fiberglass shingle guaranteed for 20 years. There was no evidence presented that something other than the material specified was used or that the shingles were not installed in accordance with the manufacturer's specifications. The roof did not leak after the work was completed. No evidence relating to a guarantee, other than the guarantee related to the shingles, was presented. Respondent has previously been disciplined by the Construction Industry Licensing Board. On September 10, 1986, a 61 paragraph Administrative Complaint was filed against Respondent which alleged, among other things, willful violation of local law; failure to qualify a firm through which he was operating; gross negligence, incompetence, misconduct, fraud, or deceit in the practice of contracting; failure to discharge supervisory duties as a qualifying agent; and aiding and abetting an unlicensed person to evade the provisions of Chapter 489. On March 26, 1987, Respondent signed a stipulated settlement with the Department of Professional Regulation admitting to all the allegations set forth in the Administrative Complaint. The stipulated disposition was that Respondent's licensure would be suspended for two years and indefinitely thereafter until an administrative fine in the amount of $3,000 was paid. The stipulation was adopted by Final Order of the Construction Industry Licensing Board rendered June 9, 1987.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered revocation of Respondent's license as a registered roofing contractor. DONE and ORDERED this 25th day of October, 1988, in Tallahassee, Florida. DIANE A. GRUBBS Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 FILED with the Clerk of the Division of Administrative Hearings this 25th day of October, 1988. APPENDIX The following constitutes rulings on the Petitioner's Proposed Findings of Fact. 1.-4. Accepted, generally except the date of February 26, 1987 appears to be the appropriate date, rather than February 7, 1987, in that the estimate from Larry Rison was obtained one day before the contract was entered into with Respondent. Accepted, generally. Accepted as true, but unnecessary and irrelevant, since Rison and Terrell did not enter into a contract for the job. 7.-14. Accepted. 15. Accepted as true; however, the last two sentences were considered unnecessary. 16.-19. Accepted, generally. First sentence accepted, sentences two and three rejected as irrelevant to the issues in this case. Rejected as redundant and for the reasons set forth under Proposed Finding of Fact No. 6. First sentence rejected as not supported by the evidence, second sentence accepted, except as to Respondent's intent. Third and fourth sentences accepted in general. COPIES FURNISHED: Belinda H. Miller, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 Francis A. Park 6109 South MacDill Avenue Tampa, Florida 33611 Lawrence A. Gonzalez Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 Bruce D. Lamb, Esquire General Counsel Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 Fred Seely Executive Director Construction Industry Licensing Board Department of Professional Regulation Post Office Box 2 Jacksonville, Florida 32201
The Issue The issue for consideration is whether Respondent's license as a registered roofing contractor in Florida should be disciplined because of the misconduct alleged in the Administrative Complaint filed herein.
Findings Of Fact At all times pertinent to the issues contained herein, Respondent, Charles J. Eckert, was a registered roofing contractor in Florida. Petitioner, Department of Professional Regulation, (Department), and the Construction Industry Licensing Board, (CILB), were and are the state agencies responsible for the regulation of the construction industry in this state. On August 7, 1987, James F. Gordon, an individual with a reported building and real estate business background, contracted with the Respondent to install the roof on the house he was building and which he had designed. Mr. Gordon chose the roofer himself rather than using the general contractor's roofer because that individual was not familiar with the type of tile to be installed. Respondent had installed a roof of this type tile on the condominium apartment in which Mr. Gordon was living at the time, and appeared to have done a good job, so Mr. Gordon chose him to do the house roof. The contract was negotiated between Mr. Gordon and the Respondent and his partner who took the plans to study before submitting their proposal to install the tile and base which, upon acceptance, became the contract for the job. Mr. Gordon was to pay for the tile ordered by Respondent. The Respondent ordered 9400 square feet of tile plus caps which came to between $8500 and $8800. The contract between Gordon and Respondent, for installation Of the tile and base, called for a payment of $9800. The original agreement between the parties was executed in July, 1987. Work was to start about three months later, after the permit for house construction had been pulled, based on an estimate of how construction would progress. As the house was erected, Mr. Gordon would notify the Respondent of the progress so he could have some idea as to when his work was to begin. The actual roof work began sometime in October, 1988. Respondent's men came timely and did the hot tar and felting during which time, Mr. Gordon often went up on the roof with the Respondent to see how things were going. The original plans called for Anderson skylights in the roof and Respondent's personnel did not want to use the flashings supplied with them. Mr. Gordon agreed to the change. The tile was custom ordered for this job and took some time to arrive. When it did, it was installed by a subcontractor under arrangement with the Respondent. Respondent never came to inspect or supervise the work of the installers, who he was paying by the piece, after his last visit when the mopping of the tar and felt was completed. Mr. Gordon was there every day and never saw Respondent during the entire installation. Respondent admits that paying by the piece for work of this kind may not be the best way to do it. The actual installation of the tile took approximately three weeks or more during which time the installers frequently complained about the way the roof was cut. The tile manufacturer sent a representative out to examine it. This individual indicated the roof was OK. When the installation was complete, there were 16 yards of tile debris left on the ground around the house. When no effort was made by the roofers to clean it up, Mr. Gordon repeatedly called Respondent's office to complain, and it took approximately two weeks before anyone came out to pick it up. Even then, the debris was merely placed in one large pile in the front yard and neither Respondent nor his subcontractor ever came back to remove it. Mr. Gordon had it removed at his own expense. The contract between Mr. Gordon and Respondent did not specifically provide for debris removal and Respondent claims this work is generally accomplished by the general contractor. No evidence to contradict this claim was presented by Petitioner. It was also noted that the installers mixed the colored cement used in the roofing in the garage and got it all over that area. No effort was made to clean it up before departure. Other deficiencies in installation included uneven installation of tile on the West side of the house. The tiles ran zigzag in their rows. Colored cement was splashed on the soffits; the color of the caps was irregular due to improper mixing of oxide for the cement; and the cap tiles were raised. Several months after installation, holes were discovered under tiles which were lifting up, and there was a leak in the roof near a skylight. Because he was dissatisfied with the roofing job he got, prior to closing, Mr. Gordon notified the bank financing the project that he was withholding $1,000 from the amount due the Respondent. He paid Respondent the balance. Because of personal problems unrelated to this matter, Mr. Gordon wad unable to take any further action for several months, during which time he heard nothing from the Respondent. He was, however, still dissatisfied with the roofing job and ultimately called Respondent to come fix a leak which had developed around a skylight. He received no response to that call and Respondent never showed up. Somewhat later, Mr. Gordon received a letter from a collection agency demanding the thousand dollars he had withheld. Mr. Gordon responded with pictures of the roofing job done by the Respondent and didn't hear anything further about it from either the agency or Respondent. Thereafter, Mr. Gordon filed a complaint with the Department and after that, Mr. Byer, hired by Respondent, came out to the Gordon house to fix the leak and to attempt to fix the discoloration. Mr. Byer removed the loose tiles and re-cemented the caps. Instead of replacing the cement, he painted with a substance which matched the color, but which will last only eight years. The roof is now sound and water tight, but due to the holes in some tiles, the mismatching of colors, and the zigzag courses, it is, to Mr. Gordon, esthetically unsatisfactory. Mr. Gordon has called in another roofer who indicated that the existing problems cannot be fixed. To correct the problem would require reroofing. Respondent's job was also considered unsatisfactory by Mr. Hurlston, the Department inspector who looked at the job in mid February, 1988. In his opinion, the work was sloppy, the tile has been "stretched", the lines are not straight, there are holes between the tiles, the "mud" around the roof ridge is not nesting properly, and some field tile are also raised and not nesting properly. Taken together, the workmanship is poor. It might be acceptable in a project home but not in a custom home as this is. In Mr. Hurlston's opinion, the failure to continuously supervise and correct errors as they occurred shows indifference to the job and constitutes gross negligence. In his opinion, the defects in the finished job are directly attributable to a lack of supervision by the Respondent, and it is so found. Respondent contends the job was done according to the installation specifications supplied by the manufacturer. He claims that the irregularity problem starts with the first three rows of tile and once they are down, the course is set. Correcting problems every couple of rows results in irregular lines and since every 5th line is nailed, if it is not in straight, it's too late to change without removing the whole roof. Assuming, arguendo, this is so, removal may well be the only appropriate course of action open if the installation is not right, and Respondent should have done it if necessary. Mr. Eckert also claims that the loose tiles discovered by Mr. Hurlston were, for the most part, caused by people walking around on the roof. A 10% loose tile rate, as evidenced here, is considered acceptable by the manufacturer. Mr. Hurlston agrees and it is so found. Respondent claims no knowledge of any problem with Mr. Gordon except for the fact that Gordon owes him $1,000. In light of Mr. Gordon's testimony that he called Respondent repeatedly to get him to come out, this is not likely. He has a policy that if a client owes him money, he won't correct any problems with the job until he is paid in full. Nonetheless, he sent Mr. Byer to make any corrections necessary in this case with the instructions to "do anything necessary to make him [Gordon] happy." Byer worked on the Gordon house for about three weeks during which time he replaced the V ridges by re-mortaring it and straightening crooked tiles. As the work progressed, Mr. Gordon seemed happy and indicated the work looked better. At no time did Gordon tell Byer to hurry or to abandon the job. When it was complete, however, Gordon told Byer that though he liked what Byer had done, Respondent would either reimburse him or he'd have his license. In light of his relationship with Gordon, the fact that Gordon has indicated he wants the roof replaced, and Gordon's alleged comment that he'd either be reimbursed or have Respondent's license, Respondent does not believe anything he could do short of replacing the roof, something he will not do, would satisfy Gordon. Other than sending Mr. Byer out to make corrections, he did nothing. It is obvious, however, that the only way to correct the problem of appearance is to remove the tile and start again. Respondent is unwilling to do this. By Final Order dated February 4, 1987, the Construction Industry Licensing Board imposed a fine of 1,000.00 on Respondent for gross negligence and incompetence demonstrated on a roofing job accomplished by him and his firm in 1980 and 1981.
Recommendation Based on the foregoing Findings of Fact and conclusions of Law, it is, therefore: RECOMMENDED that the Respondent, Charles J. Eckert's registration as a roofer be suspended for three months but that the suspension not be implemented and he be placed on probation for a period of one year under such terms and conditions as the Board may prescribe; that he pay an administrative fine of $1,000.00, and that he be reprimanded. RECOMMENDED this 29th day of December, 1989, in Tallahassee, Florida. ARNOLD H. POLLOCK Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 29th day of December, 1989. COPIES FURNISHED: J. Craig Myrick, Esquire Department of Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792 Charles J. Eckert 2515 16th Avenue Drive East Bradenton, Florida 34208 Kenneth E. Easley General Counsel DPR 1940 North Monroe Street Tallahassee, Florida 32399-0792 Fred Seely Executive Director CILB Post Office Box 2 Jacksonville, Florida 32202
The Issue Whether Mr. Masiero is guilty of gross negligence in reroofing work he performed, and misconduct by failing to honor a guarantee given in connection with that work?
Findings Of Fact Mark Masiero was the qualifying agent for All Florida Roofing Company. Mr. Masiero entered into a contract, on behalf of All Florida Roofing Company, with Cristobal Sotolongo of Miramar, Florida, on January 19, 1987 According to the contract Mr. Masiero would [r)emove the roof at the address above down to wood sheathing or smooth, workable surface and haul all debris away (Department Exhibit 1) and install a hot tar roof on a flat deck. The company further gave a guarantee which read: The company guararitees its workmanship for ten years. It will replace faulty materia1 or faulty workmanship within the period of the guarantee free of charge (Department Exhibit 1). Mr. Sotolongo paid $700 at the time the contract was executed. The total price was to be $2,500. Mr. Sotolongo thereafter paid All Florida Roofing Company an additional $1,600. Mr. Sotolongo received a job invoice from All Florida Roofing Company signed by Mark Masiero on March 14, 1987, showing payment in full for the roofing work. Two hundred dollars had been deducted from the contract price for damage done to a patio screen and popcorn ceiling at the Sotolongo residence during the roofing work. After the work was completed, Mr. Sotolongo had a leak in his bedroom. Mr. Masiero returned and put some tar on the roof, but it still leaked. As a result of the leak Mr. Sotolongo lost the ceiling in the bedroom. He called Mr. Masiero repeatedly in an attempt to have the leak repaired and ultimately retained a lawyer, Steven M. Rosen, who wrote to All Florida Roofing Company on Mr. Sotolongovs behalf to complain about the failure to honor the guarantee and perform remedial work. After he received no reply to his lawyer's letter from Mr. Masiero or All Florida Roofing Company, Mr. Sotolongo received estimates for roof repairs from a number of roofers, including Professional Roofing, Inc. of Hollywood, Florida, Pioneer Roofing Company, Inc. of Hollywood, Florida, Universal Roofing, Inc. of Hollywood, Florida, and Gory Roofing, Inc. of Hollywood, Florida. A roof inspection was also provided by Gory Roofing. The reroofing was done by Gory Roofing, Inc. at a cost of $1,500. The problem with the roofing work done by All Florida Roofing Company and Mr. Masiero was that the work did not conform to the contract, in that the old roof had not been removed down to the wood sheathing or to a smooth workable surface. The old roof had been a tar and gravel roof. Lengths of 2 x 4 lumber had been placed around the perimeter of that roof and 1 1/2" to 2" of concrete had been poured on that old roof; the old tar and gravel roof had been placed over the concrete. Mr. Masiero and All Florida Roofing Company had not removed the underlying concrete roof or an older tar and gravel roof below it. This caused the leaking. The repair work done by Gory Roofing, Inc. included removal of the old roofing system, and application of a new roof. After that work, there have been no leaks from the roof.
Recommendation It is recommended that Mr. Masiero be found guilty of violations of Section 489.129(1)(j) and (m), and that he be fined $2,250. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 23rd day of March, 1990. WILLIAM R. DORSEY, JR. 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 23rd day of March, 1990. COPIES FURNISHED: Robert G. Harris Department of Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792 Mark Masiero 6631 Southwest 26th Court Miramar, Florida 33023 Kenneth D. Easley, General Counsel Department of Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792 Fred Seely, Executive Director Construction Industry Licensing Board Department of Professional Regulation Post Office Box 2 Jacksonville, Florida 32202
The Issue Whether disciplinary action should be taken against the Respondent's contractor license number CG C022926, issued by the State of Florida, based upon the violations of Section 489.105(4), 489.113(3), 489.117(2), 489.115(1)(b), 489.119, and 489.129(1)(d), (e), (g), (j) and (m), Florida Statutes (1987), alleged in three administrative complaints filed by the Petitioner.
Findings Of Fact At all times material to this proceeding, the Respondent, Richard Lee Melvin, was a licensed contractor in the State of Florida, having been issued license number CG C022926, by the State of Florida. The Armstrong Job On or about February 26, 1987, Mr. and Mrs. Armstrong entered into a contract with Sunshine State Homes to do certain siding work and roofing work on two mobile homes owned by the Armstrongs located at 4605 and 4607 Orange Drive in Holiday, Florida. The cost of the repairs under the contract was $6,400. Although the Respondent did not sign that contract, his name and license number appeared on it, he applied for and was granted the necessary Pasco County permit for Sunshine State Homes using his licensure. At the time he applied for the permit, the Respondent knew that Sunshine State Homes was not licensed since he was considering qualifying that company. The permit that the Respondent received from Pasco County required, among other things, that all the Respondent's work conform with the requirements of state and county codes and regulations. The Respondent acted in the capacity of a contractor for Sunshine State Homes even though his certificate did not contain the name Sunshine State Homes. After the signing of the contract, work began on both structures. The roof was replaced on the main structure, and the Armstrongs were informed that the Rainbow Roof System contracted for could not be installed. After work began, it rained and because of improper construction techniques, both mobile homes flooded. Representatives of Sunshine State Homes attempted to correct the problems, but when it rained again, there was substantial leaking in both mobile homes. A rug from the main mobile home had to be removed. Another attempt was made to correct the leaks at the rental unit by re-coating the roof with sealant. Again, it rained, and both mobile homes flooded. Both mobile homes had leaks where, prior to construction beginning, they did not have leaks. Insurance covered $1,200 of the damage to the main mobile home. There also was damage that was not covered by insurance. The type of roof put on the main coach resulted in leaks all along the seam between the roof over the main coach and the roof over the addition to the main structure. The water leaked through the walls of the mobile home, causing water damage. On or about April 7, 1987, the roofs supposedly were finished, and the contractor wanted the rest of his money. The Armstrongs refused to give the balance of the money until another heavy rain was experienced. After representatives from Sunshine State Homes made various threats, the owners paid Sunshine State all but $900 of the contract price. The $900 was withheld to cover the water damage sustained as a result of the leaks. The work that was done was required to be inspected by Pasco County. The work had not been inspected because neither the Respondent nor anyone else from Sunshine State had called for inspections. The work that was done deteriorated over the summer months. On October 14, 1987, the homeowners contracted with Holiday Aluminum to replace the two mobile home roofs in accordance with the contract previously entered into between the homeowners and Sunshine State Homes. It cost the homeowners $4,300 to have the two new roofs installed. They have not experienced any problems with the roofs installed by Holiday Aluminum. The work Sunshine State did under the Respondent's licensure was done in a grossly negligent or incompetent manner. The Respondent and Tropical Exteriors The Respondent was contacted by Jeff Gaston, in mid-November, 1986. Gaston wanted the Respondent to qualify Gaston's company, Tropical Exteriors and Services, Inc. The Respondent met with Gaston and Gaston's attorney, and the Respondent understood that it would take time for all of the paperwork to be concluded. Towards the end of March, 1987, the Respondent started having concerns about his business relationship with Gaston and Tropical. However, the Respondent took no action to terminate that relationship or otherwise advise any governmental agencies involved or homeowners that he was not associated with Tropical until May 13, 1987. There was a continuous business relationship between the Respondent and Tropical for the period November, 1986, through May 13, 1987. The Respondent never qualified Tropical. The Respondent knew that Tropical was using his name in connection with its business after November, 1986. He also thought he would be given notice of any contracts Tropical entered into. But Tropical entered into contracts with the Clems and the Warzyboks and began work without telling the Respondent. The homeowners relied on Tropical's representations regarding the Respondent's association with the business. The Clem Job In November, 1986, Mr. and Mrs. Clem knew that they needed a new roof on their residence located 10511 - 53rd Avenue North, St. Petersburg, Florida, because the shingles were curling. However, they did not have any leaks in the roof. In November, 1986, the Clems were contacted by Millie Morris regarding the roof repairs. Morris stated that she worked for Tropical and was representing U.S. Steel. She advised the Clems that she would like to use the Clem home in an advertising campaign. The Clems did not have the cash money to pay for the repairs and needed financing. As part of that financing, Morris stated that she would give the Clems a $300 rebate on contracting resulting from any leads the Clems gave her. The Clems were able to obtain a second mortgage on their home which provided for the financing of the needed improvements. On or about February 9, 1987, the Clems entered into a contract with Tropical. At the time of the signing of the contract, Morris again reaffirmed to the Clems that any leads the Clems gave Morris that resulted in a contract would result in the Clems being paid the sum of $300. The Clems put $1,000 down at the time of signing the contract and were to pay $1,500 during the course of the job and $2,500 on completion of the job. Before entering into the contract, the Clems relied on the information on the contract letterhead which contained the Respondent's name, type of state certificate, license number, number of years of experience and a representation that the Respondent was insured. Additionally, the Clems called the Better Business Bureau and checked on Tropical to see if any complaints had been filed. The contract provided for, among other things, the removal of the old roof, installation of a new roof, the installation of soffit and facia, the installation of doors and windows and a guaranty on all the work. Shortly after the contract was signed and work was started on the roof, the Clems told Morris the people across the street from them needed repairs. Those people signed a contract with Tropical to have their roof replaced. The work was done, but the Clems received nothing for giving Tropical the customer lead. After the work was done, the Clems dealt with Morris and Gaston. Several times after the job was started, the Clems tried to get Gaston on the job site because the roof was leaking, there was no flashing around the drain pipes and vents, the aluminum edging was bent in many places and the siding had fallen on the ground. Several times when a representative of Tropical was on the job site, Mrs. Clem pointed out to them that the aluminum was bent in places, the seams were cut crooked, there were unnecessary splices in the aluminum, there were bad cuts around certain pipes, there was an electric light left hanging, the wrong weather stripping had been installed around the door, other weather stripping was not put up right, the windows were not sealed, the roof leaked, there was unnecessary tar on the shingles and there were aluminum overlaps facing the street, among other things. From that point forward, representatives of Tropical assured the Clems on many occasions that those problems would be corrected by a date certain, but the deadline was missed in every base. During the construction, the Clems agreed to pay Tropical the $1,500 due during the construction and $2,000 of the $2,500 that was due at the end of construction because a representative of Tropical explained to them that the job was near completion, Tropical needed the money to cover expenses and that Tropical would put in a bedroom window in the Clems residence at no charge. After many telephone conversations and on-site inspections by Tropical, all to no avail, Tropical agreed to finish the job if the Clems would pay him the remaining $500 and if the Clems would pay him an additional $150 for the bedroom window Otherwise, Tropical threatened to forfeit the $500 and not complete the job. The Clems agreed because they knew that it would cost them more than $500 to have the job completed by someone else. The job still was not competed, and the complaints were not corrected. The Clems called another siding contractor, who told the Clems that he would charge $750 just to correct the siding problems, that no permits had been pulled for the job and that the Clems should not allow any further work to be done until the permits had been pulled for the siding and the roof. When the building department received the siding contractor's inquiry regarding the permits, it contacted Tropical. The Clems had several conversations with their attorney, who advised the Clems that it would be cheaper to attempt to solve the problem with Tropical than to get a new contractor. Several attempts were made to have Tropical complete the job, but Tropical continuously failed to honor its agreements. The last time anyone from Tropical was on the job site was April 17, 1987. As of the hearing date, the complaints had not been corrected, and the work had not been completed in accordance with the contract. On or about March 13, 1987, the Respondent obtained a building permit from Pinellas County, Florida, for the installation of the aluminum soffit and facia work, only. Later, after the Respondent had terminated his relationship with Tropical, the job was inspected by the Department of Building Inspections of Pinellas County and was cited for violations of the applicable local codes which never were corrected. The work that was done was done in a grossly negligent or incompetent manner. The Warzybok Case On or about January 14, 1987, Mr. and Mrs. Warzybok, entered into a contract with Tropical Exteriors and Services, Inc., for the removal and replacement of the Warzyboks flat roof at their residence located at 6088 - 27th Avenue, St. Petersburg, Florida. Before entering into the contract, the Warzyboks relied on the information on the contract letterhead which contained the Respondent's name, type of state certificate, license number, number of years of experience and the representation that the Respondent was insured. Additionally, the Warzyboks called the Better Business Bureau and checked on Tropical Exteriors and Services, Inc., to see if any complaints had been filed. Before entering into the contract, the Warzyboks' old flat roof was leaking on the outside of an exterior wall but was not leaking inside. Shortly after the contract was signed, Tropical tore off the old roof, mopped one coat of tar over it, and after it started to rain, put some visqueen over the roof and left. Sometime during the following week, representatives of Tropical finished mopping, put some roof paper down and did some other miscellaneous work. Approximately one week later, Warzybok had the tile roof over the main house pressure cleaned (this roof was connected to the flat roof). When the water from the pressure cleaning came off the tile roof onto the flat roof, the water flooded the room underneath the flat roof. The Warzyboks also discovered that there were broken tiles on the roof over the main house. The flat roof was now leaking inside as well as outside. The Warzyboks attempted on numerous occasions to contact Tropical and have Tropical correct the problems and finish the work. Numerous appointments were made to finish the work and correct the problems, most of which were not kept. Whatever work was done by Tropical did not complete the job or correct the problems. At one point, Tropical sent out a new roofer, Bill Vance, who told the Warzyboks that the roof needed to be totally redone. Several months after the job was started, the homeowners called the City to get an inspection and determined that no permit had been obtained for the job. The City of St. Petersburg Building Department went to the Warzybok property and determined that there had been no permit issued and that the persons who were working on the premises were not licensed roofers. The building department placed a stop order on the work and told the Warzyboks that they needed a licensed roofer to complete the job. The job still has not been completed, and the problems have not been corrected. As of the hearing date, the Warzyboks have problem with leaking skylights, skylights covered with tar, a leaking fireplace, plaster being separated from the sheetrock because of water damage, roofing tiles that were not replaced after they were broken by Tropical and tar on the bottom of the roof, among other things. The Warzyboks got an estimate of $275 just to replace one piece of plaster adjacent to the fireplace only. Tropical started the roof as a three-ply roof and then changed the roof to a one-ply roof. There has been leaking at the chimney and at the skylights, which were not properly installed Some of the tile removed from the main roof at the point of tie-in with the flat roof has not been replaced properly and, in some places, has not been replaced at all. The Respondent, under whose license the work was done, did not know of, and did not properly supervise, the installation of the roof. The roof was installed in an incompetent manner.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Construction Industry Licensing Board find the Respondent guilty of violating Section 489.105(4), 489.119, and 489.129(1)(d), (e), (g), (j) and (m) , Florida Statutes, and that, as punishment, impose on the Respondent a fine of $5000, suspend the Respondent's license for three years and place the Respondent on probation for one year after termination of the suspension conditioned on completion of continuing education designated by the Board and on such other terms that the Board deems appropriate. DONE and ENTERED this 20th day of April, 1989 in Tallahassee, Leon County, Florida. J. LAWRENCE JOHNSTON 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 April, 1989. APPENDIX TO RECOMMENDED ORDER CASE NOS. 88-5197, 88-5198 and 88-5199 To comply with Section 120.59(2), Florida Statutes (1987), the following rulings are made on the parties' proposed findings of fact: Petitioner's Proposed Findings of Fact. 1.-4. Accepted and incorporated. Sixth sentence, rejected because it was additional sealant, not fiberglass, that was put on the rental unit. Otherwise, accepted and incorporated. Accepted and incorporated. Proposed findings regarding the "high ridge" rejected as not supported by the evidence but otherwise accepted and incorporated. Rejected that the owners held back $1,400 (they held back $900) but otherwise accepted and incorporated. Proposed findings regarding the owners' telephone calls to the inspection department and the inspection results rejected as not supported by the evidence. First and penultimate sentences, accepted and incorporated. 10.-11. Accepted and incorporated. 12. Subordinate and unnecessary. 13.-28. Accepted and incorporated. 29. Accepted but subordinate and unnecessary. 30.-33. Accepted and incorporated. 34. Proposed findings that the permit was pulled after the work for purposes of correcting the work rejected as not proven by the evidence. Otherwise, accepted and incorporated. 35.-45. Accepted and incorporated. The estimate was for plaster, not "plastic." Otherwise, accepted and incorporated. Accepted and incorporated. Second sentence, rejected as not supported by the evidence. Otherwise, accepted and incorporated. Accepted and incorporated. Respondent's Proposed Findings of Fact. (These rulings relate to the unnumbered paragraphs in the Respondent's March 23, 1989, letter, starting with the third paragraph. They are assigned consecutive paragraph numbers for purposes of these rulings.) Accepted and incorporated. First sentence, accepted and incorporated; second sentence, rejected as contrary to facts found. Accepted but subordinate to facts found and unnecessary. First and last sentences, accepted and incorporated. Second and third sentences, rejected as contrary to facts found. First sentence, accepted and incorporated. Second sentence, rejected as unclear. Accepted. First sentence, incorporated; second sentence unnecessary. First and third sentences, rejected as contrary to the weight of the evidence; second sentence, accepted but unnecessary. First sentence, accepted and incorporated (although the unlicensed companies using the Respondent's name also did work and assumed responsibility for the jobs over which the Respondent exercised no control at all.) Second sentence, rejected as contrary to facts found. COPIES FURNISHED: Jack M. Larkin, Esquire 806 Jackson Street Tampa, Florida 33602 Richard Lee Melvin 12737 North Florida Avenue Tampa, Florida 33612 Fred Seely, Executive Director Florida Construction Industry Licensing Board 111 East Coastline Drive, Suite 504 Jacksonville, Florida 32202 Kenneth E. Easley, Esquire General Counsel Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750
The Issue The issues in this case are whether Respondent engaged in the unlicensed practice of contracting, and, if so, what penalty should be imposed.
Findings Of Fact The Department is the state agency responsible for, inter alia, licensing and monitoring general contractors. Department headquarters are in Tallahassee, Florida. Part and parcel of the Department's duties is the sanctioning of persons who practice general contracting without a license. Respondent is an individual living in Tampa, Florida. Respondent did not appear at final hearing and has not filed any post-hearing motions concerning his failure to appear. The Administrative Complaint filed by the Department makes the following allegations: Respondent was not registered or certified to engage in the practice of contracting. Respondent, doing business as J.D.S. Roofing, contracted with Vivian Virgil to perform certain roofing work, specifically, to remove and replace shingles and related work to reconstruct the roof on Virgil's home. A contract between the parties dated April 21, 2006, was signed by Virgil and Respondent (or his authorized representative). Virgil made two payments to Respondent in the amounts of $2,500.00 (via check number 1037) and $1,564.46 (via check number 1040). She also made a payment of $2,860.54 to The Home Depot to pay for materials ordered by Respondent for Virgil's roofing repairs. Respondent then made the contracted-for repairs and replacement of Virgil's roof pursuant to the contract.2 Virgil, however, was not pleased with the quality of the work. She is unable to get a warranty on the roof because Respondent's work was inferior. Virgil must have another contractor re-do the roof in order to get a warranty. Neither Respondent nor his company, J.D.S. Roofing, is or has ever been licensed by the State of Florida as a contractor. However, Respondent held himself out as a general contractor in his dealings with Virgil.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered by the Department of Business and Professional Regulation finding that Respondent, James Delaughter, is guilty of the unlicensed practice of contracting and imposing a fine of $5,000.00. DONE AND ENTERED this 8th day of April, 2008, in Tallahassee, Leon County, Florida. R. BRUCE MCKIBBEN 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 8th day of April, 2008.
