Findings Of Fact Respondent has been a registered roofing contractor at all times material hereto. His license number is RC-0035594. On or about April 26, 1985 Respondent, doing business as Pinellas Roofing Service, contracted with Bausch and Lomb to reroof their plant in Manatee County, at a contract price of $31,150. Respondent admits that at no time material hereto was he licensed to engage in contracting in Manatee County. Pinellas Roofing thereafter began, and partially performed, this job for which it was paid a total of $28,035. Petitioner alleges, and Respondent denies, that Respondent diverted funds received from this job for other purposes, and was thereafter unable to fulfill the terms of the contract with Bausch and Lomb. Petitioner did not present competent substantial evidence in support of this charge. Respondent never completed this job and took no steps to inform Bausch and Lomb that he would not complete the contract or make other arrangements for its completion. He left several thousand dollars worth of material on the roof, exposed, when he walked off this job, and this resulted in these materials being substantially destroyed. During the job, he did not take precautions to assure that the roof did not leak during heavy rainstorms. In fact, on at least three occasions, leaks caused damage to the interior of the plant and Respondent could not be reached. Therefore, Bausch and Lomb had to have another roofing contractor make emergency repairs on June 25, July 15 and September 3, 1985, at a total additional cost of $4,150. Since Respondent did not complete the contract, and left the roof unfinished, Bausch and Lomb contracted on September 17, 1985 with Bernard J. Lozon, Inc., to complete the job, and make certain additional repairs, at a cost of $24,000. In the opinion of Bernard J. Lozon, who was accepted as an expert in roofing contracting, the actual work that was done by Pinellas Roofing was satisfactory. However, Respondent's actions in walking off the job and leaving the roof unattended without completing the job is an unacceptable practice in roofing contracting, and constitutes incompetence and misconduct. Respondent failed to properly supervise this job. He relied upon his son to hire the necessary crews, pay them, handle financial aspects of the job, and assure its completion. His testimony indicates he fails to understand his own responsibility for supervising and completing the work for which he contracted, and which was performed under his license. At no time material hereto did Respondent qualify Pinellas Roofing Service with Petitioner. Respondent failed to apply for and obtain a Manatee County building permit for the roofing job in question, and also failed to request the county building department to perform inspections of the work performed. The Board of County Commissioners of Manatee County has adopted and follows the 1979 edition of the Standard for Installation of Roof Coverings, Southern Building Code, as amended in 1981. This Code requires all contractors performing work in Manatee County to be registered in Manatee County, and to obtain permits for all roof replacements and repairs in excess of $200, as well as obtain inspections of all such work to insure compliance with the Code. Respondent failed to comply with these requirements of the local building code. When Respondent submitted his proposal on April 16, 1985 for the Bausch and Lomb job, he specifically acknowledged, in writing, that "all work (is) to be done according to owner specifications sheet." (Emphasis supplied). At hearing, Respondent contended that when he submitted his proposal he never saw the project specification sheet which was thereafter attached to his contract with Bausch and Lomb and made a part thereof. Rather, he testified that his proposal referred to certain specifications that appeared on project drawings which he reviewed prior to submitting his proposal. After considering the demeanor of the witnesses and all of the evidence presented, and particularly the fact that Respondent referred to the "specifications sheet" and not "drawings" in his proposal, it is specifically found that Respondent had knowledge of, and did in fact submit his proposal based upon the "specifications sheet" which ultimately became a part of his contract. As such, he was bound thereby in the performance of work under this contract. In pertinent part, the "specifications sheet" requires that the contractor obtain all necessary permits from Manatee County, that notice be given to the owner in advance of work that will produce excessive amounts of dust or tar fumes so proper precautions could be taken, that roofing materials be stored in a manner that protects them from damage or adverse weather conditions during construction, and that the contractor provide a two year written guarantee at the conclusion of the job. Respondent failed to comply with these requirements of the specifications.
Recommendation Based upon the foregoing, it is recommended that Petitioner enter a Final Order suspending Respondent's registration for a period of ninety (90) days and imposing an administrative fine in the amount of $1,500. DONE AND ENTERED this 22nd day of April, 1987 in Tallahassee, Florida. DONALD D. CONN Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 22nd day of April, 1987. APPENDIX TO RECOMMENDED ORDER, CASE NO. 86-3698 Rulings on Petitioner's Proposed Findings of Fact: Adopted in Finding of Fact 1. Adopted in Finding of Fact 8. 3,4 Adopted in Finding of Fact 2. 5,6 Adopted in Finding of Fact 3, but otherwise rejected as irrelevant and unnecessary. 7,8 Adopted in Finding of Fact 9. Adopted in Finding of Fact 6. Adopted in Findings of Fact 5, 6. Rulings on Respondent's Proposed Findings of Fact: Adopted in part in Findings of Fact 3, 5. Rejected as not based upon competent substantial evidence. Adopted in part in Finding of Fact 3. Adopted in part in Findings of Fact 2, 3. 5-7 Addressed in Findings of Fact 2, 3 and 5. 8,9 Rejected as irrelevant and unnecessary. 10. Adopted in part in Finding of Fact 5. 11,12 Adopted in part in Finding of Fact 6. Rejected as not based upon competent substantial evidence. Adopted in Findings of Fact 5, 6. Adopted in Finding of Fact 6. COPIES FURNISHED: W. Douglas Beason, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Fl 32399-0750 Michael Schlesinger, Esquire 655 Ulmerton Road Building 11-A Large, Fl 33541 Fred Seely Construction Industry Licensing Board Post Office Box 2 Jacksonville, Fl 32201 Van Poole Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Fl 32399-0750 Joseph A. Sole, Esquire General Counsel Department of Professional Regulation 130 North Monroe Street Tallahassee, Fl 32399-0750
The Issue Whether Respondent committed the offenses alleged in the Administrative Complaint and the penalties, if any, that should be imposed.
Findings Of Fact At the times pertinent to this proceeding, Respondent was not registered, certified, or otherwise licensed to engage in contracting in the State of Florida. At the times pertinent to this proceeding, Respondent conducted business through an entity known as C. J. Home Improvement Corporation, which was also not registered, certified, or otherwise licensed to engage in contracting in the State of Florida. In 1995, Joseph Pallant was one of the owners and the manager of a commercial building located at 3700 Biscayne Boulevard, Miami, Florida. In January 1995, Mr. Pallant entered into an agreement to lease the building for a term of ten years to a non-profit organization named PWAC, an acronym for People With Aids Coalition. PWAC had an office in the adjacent block and wanted to operate a thrift shop at the subject premises. The roof on the subject building leaked. The parties agreed that Mr. Pallant would pay to replace the roof and that PWAC would thereafter be responsible for maintenance. The officers of PWAC informed Mr. Pallant that they wanted Respondent to do the roofing work. There was a conflict in the evidence as to whether Mr. Pallant knew that Respondent was unlicensed. It is clear that Mr. Pallant and Respondent knew one another prior to January 1995. Based on Mr. Pallant's testimony, which the undersigned finds credible, it is found that Mr. Pallant knew that Respondent was in the building repair business, but that he did not know Respondent was unlicensed. Respondent's assumption that Mr. Pallant knew he was unlicensed is not as credible as Mr. Pallant's direct, unequivocal testimony that he had no such knowledge. After having several conversations with Mr. Pallant by telephone and at the building, Respondent prepared a written proposal on his business form to do the work necessary to replace the roof. The proposal was submitted to PWAC. The proposal described in detail the work that would be done and the materials that would be furnished, the time frame for the work, and the price. The price was set at $6,183.00 plus $400.00 if certain additional work would have to be done on certain drains. PWAC was provided a copy of the proposal that was dated February 25, 1995. Respondent signed this proposal and affixed the corporate seal of his business entity. Under Respondent's signature was the phrase "personally individually guaranteed." At all times pertinent to this proceeding, Respondent knew that Mr. Pallant was one of the owners of the building and that he would be paying for the roofing work. On February 27, 1995, Respondent and Mr. Pallant met. Respondent gave Mr. Pallant an unsigned copy of the written proposal (dated February 27, 1995, but otherwise identical to the form given PWAC, but dated February 25, 1995). After they discussed the work, Mr. Pallant accepted the proposal and gave Respondent a check made payable to C. J. Home Improvement in the amount of $3,100.00. Respondent accepted this check and deposited the proceeds of the check in his company's bank account. Without the prior knowledge or consent of Mr. Pallant, Respondent attempted to subcontract the roofing job to a licensed roofer named Don Palmier.1 No work was started on the job. In March 1995, Mr. Pallant met with representatives of PWAC and Respondent to discuss the lack of progress. As a result of that meeting, Mr. Palmier refused to proceed with the roofing job2 and Mr. Pallant learned that Respondent was unlicensed and could not do the work. During the course of the meeting PWAC cancelled its lease. Mr. Pallant subsequently filed suit against C. J. Home Improvement for the return of the $3,100.00. Despite obtaining a final judgment for that sum plus costs and fees, the Respondent has not satisfied any portion of the judgment. As of April 23, 1998, the Petitioner's costs of investigation and prosecution in this case, excluding costs associated with an attorney's time, totaled $269.62.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner enter a final order that adopts the findings of fact and conclusions of law contained herein; finds Respondent guilty of violating the provisions of Section 489.127(1)(f), Florida Statutes, as alleged in Count I of the Administrative Complaint; dismisses Count II of the Administrative Complaint; imposed an administrative fine against the Respondent in the amount of $2,500.00; and assesses costs against Respondent in the amount of $269.62. DONE AND ENTERED this 10th day of September, 1998, in Tallahassee, Leon County, Florida. CLAUDE B. ARRINGTON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 10th day of September, 1998
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 respondent's license should be revoked, suspended or restricted, or whether an administrative fine should be levied against him, or whether he should be reprimanded for the reasons alleged in the administrative complaint?
Findings Of Fact James M. McCurley is a registered roofing contractor, holding Florida License No. RC 0042226. Licensed in Florida since 1982, Mr. McCurley has been in the roofing business for 25 years all told. Although he holds a state license, he is registered to do roof projects in Broward County only, 82-3201-R-R. Thomas v. Shoop, a real estate broker, manages the Mayani Biscayne Condominiums in Miami at 5995 Biscayne Boulevard, (Mayan) and the Camelot South Apartments on 17th Street in Fort Lauderdale (Camelot), which consist of three buildings (A, B and C). Above Camelot B's roof, which "is not properly set up for drainage at all," (T. 183), loomed a leaking water tower, which has only recently been fixed. In the summer of 1983, all four buildings' roofs leaked; and the roofer who had given long-term guarantees on Camelot's roofs had gone bankrupt. An associate of Mr. Shoop knew one John Emig, who was a salesman for Mr. McCurley. Messrs. Shoop and Emig visited the roofs and discussed the problems. In order to "mak[e] sure that they got a reputable roofer. . . [Mr. Shoop] did great deal of research with a list . . . [of] people that [Mr. McCurley] had done work for and were satisfied." (T. 16). Through Mr. Emig, Mr. McCurley offered to replace the 8,000-square-foot roof on Camelot B for $25,000. Further conversations eventuated instead in an agreement, reduced to a separate writing with respect to each Camelot building, Petitioner's Exhibit No. 2, that called for Mr. McCurley to repair, clean and paint the root and soffits of the three Camelot buildings. The contract for Camelot A characterized the work both as restoration and as preventive maintenance. Repairs were to be effected "as needed." The contracts recited the roofing contractor's "opinion [that] the following maintenance work should put this roof and mansard in the best possible condition, and that it reasonably can be expected to have up to a five year service life." Petitioner's Exhibit No. 2. The agreements specified installation of a total of 35 vapor pressure release vents and stated that Mr. McCurley was to: Check and reseal where needed all pitch pockets, using 10-year rubberized elastomers. . . . Remove all blistering coating from the roof decks and at all such spots install a repair patch. Repair any bulges or blisters and treat all cracks as needed using elastomeric and waterproofing membrane. Petitioner's Exhibit No. 2 The contracts were typed on printed forms. When Mr. Emig and Mr. Shoop signed the roofing contracts on August 24, 1983, Mr. McCurley was not present. At the time the agreements were signed, "3 was substituted for "1" in the phrase, "The above work . . . carries with it our 1 year Pree Service Guarantee should any leak occur . . ." Petitioner's Exhibit No. 2. Unchanged was a typewritten paragraph on each contract stating: In this particular situation our warranty shall be a one year unconditional one, which is standard procedure in the industry. Petitioner's Exhibit No. 2. Although Mr. Shoop dealt primarily with Mr. Emig in negotiating the contract, Mr. Shoop and Mr. McCurley went up on a roof together at one point before the contracts were signed. On September 20, 1983, an addendum to the contracts, calling for work on the buildings other than roofing, was executed. The contract price for the roofing work was less than 40 cents per square foot. The roofs in the Camelot complex were built-up tar and gravel, coated with a cementitious fill. Ordinarily insulation lies underneath a built-up roof of this kind. The vapor pressure release vents were proposed and contracted for on the assumption that insulation underlay the tar, insulation which permitted lateral movement of water and water vapor trapped by the tar and cementitious fill. Pressure attendant on vaporization of water trapped underneath the tar and fill is the apparent cause of the cracking and blistering that led to the leaks. In installing the first vapor pressure release vent, Mr. McCurley discovered that the tar had been placed directly on the roof sheathing. He explained to Mr. Shoop that there was no good reason to go forward with installation of the other vents because the impermeability of tar and fill precluded lateral movement of moisture and, therefore, its escape in any significant quantity through the vents. Mr. Shoop insisted, however, that all the vents called for by the contract go in, and Mr. McCurley complied. The vents stood useless (T. 99) but firmly affixed to the roof as recently as five or six months before the hearing. (T. 94) Thereafter, many were dislodged by the contraction and expansion of the roof, aggravating the leakage problems. To meet the contract requirement of an "elastomeric and waterproofing membrane," Mr. McCurley employed a coating he had never used before, but one which was advertised by a company listed on the New York Stock Exchange, Rohm & Haas, as capable of withstanding ponding water. At the time he entered into the contract, Mr. McCurley did not know that this claim was false. In the fall of 1983, he applied this coating not only to places where cementitious fill had bulged, blistered, or cracked, but also to unblemished portions of the Camelot roofs, covering them entirely twice, before applying a final coat of high gloss white paint. Before he was paid, Mr. McCurley had done everything called for by the contract. On May 30, 1984, however, Mr. Shoop told Mr. Emig that old leaks had reappeared and that new leaks had sprung open. Mr. Shoop also telephoned and left word for Mr. McCurley to this effect on June 15, 18, and 19. On July 5, 1984, Mr. Shoop wrote Mr. McCurley a letter, Petitioner's Exhibit No. 4, in response to which Mr. McCurley applied another acrylic waterproofing compound and plastic cement. When he finished, "it looked from a laym[a]n's point of view that it was a good job." (T. 31). In November of 1984, the B building roof still looked good but it leaked. In response to complaints, Mr. McCurley returned several times to repair blistered areas with acrylic waterproofing and to apply plastic cement. Typically these repairs prevented leaks the next hard rain but not the one following. Camelot B needs reroofing, which involves taking out the existing roof and building up a new one with tar and gravel, the approach Mr. McCurley originally recommended.) Mr. Hilson, who has spent approximately 30 years in the roofing business, testified that the coatings that Mr. McCurley used were permeable, and inappropriate for use on horizontal surfaces on that account. Specifically, after inspecting Camelot B's roof, Mr. Hilson testified: It has continued to leak from what we was shown and told. I made a note here that it takes a zero perm rating to hold back water, and these coatings apparently have no such perm rating. These coating[s] are breathable. And because they are breathable they allow water to go through them and become trapped, underneath the cementious fill. The only type of coating that we know of that these type of coatings were normally used on vertical surfaces where water can't stand on them, showing these photographs here the water where it does pond on this coating, it deteriorates the coating. It actually eats it. The fungus attacks it. Basically that's it, except where the bottom statement that I made is that these type of coatings cannot hold back water and should not be used to try to hold back water. And anybody with any roofing knowledge should understand or know they can't hold back water. (T. 71, 72). Respondent McCurley testified that he did not know what numerical "perm rating" the material he used had been given, but that he relied on the manufacturer's representations that it would withstand ponding, when he told Mr. Shoop that he thought it would work. He did not dispute that the coating had failed. Mr. Hilson was of the opinion that not even an impermeable coating would have worked, because it would not only have prevented water's penetrating, but would also have trapped moisture already in the cementitious fill. In his view, when the trapped water vaporized, it "would have blown the system off". Petitioner's Exhibit No. 7. Mr. McCurley also contracted with Mr. Shoop to work on the roof of the Mayani apartment building in Miami. For $1200.00, he undertook, among other things, to check and reseal as needed "litch [sic] pans," repair three leaks in the deck, cover "all bald spots with gravel," and install Gravel Lok over the entire gravel roof area. The leak repairs were unconditionally guaranteed for a year. After work was completed, Mr. McCurley received full payment on September 6, 1983. Before he began work, Mr. McCurley telephoned some government office in Dade County and asked whether a permit was "required to put a cement coating over a gravel built-up roof," (T. 9) and was told that none was required. After the present proceedings were instituted he called again and got the same answer. As a practical matter, persons not licensed as roofers, including "the average painter, goes out and does a waterproof of a roof." (T. 103) Repair of the three leaks probably cost Mr. McCurley $30.00. (T. 99) When he began on the Mayani roof Mr. McCurley was aware that Dade County's code is similar to Broward County's, which incorporates the South Florida Building Code, and knew specifically that Dade County required a permit for roofing repairs "after Three Hundred dollars," (T. 98) a permit he was ineligible to obtain. Dade County does indeed require permits for the "application, construction or repair of any roof covering. . .exceeding three hundred dollars (S300.00) in value of labor and materials, . . . or for work exceeding 2 roofing squares in extent," Petitioner's Exhibit No. 6, and the requirement applied to the job Mr. McCurley did at Mayani. (T. 66). When Mr. Shoop reported the Camelot leaks to Mr. Emig on May 30, 1984, he also reported leaks at Mayani that had appeared after heavy rains in Miami. Eventually respondent repaired the Mayani roof, but problems developed again in November of 1984.
The Issue Whether Respondent's activity and conduct in the performance of a roofing contract constitutes abandonment of that contract in violation of Section 489.129(1)(k), Florida Statutes (1979), and whether Respondent willfully or deliberately violated the Volusia County Building Code, thereby contravening Section 489.129(1)(d), Florida Statutes (1979), by failing to obtain a building permit prior to commencing construction of the subject project. Based upon my observation of the witnesses and their demeanor while testifying, the arguments of counsel and Respondent, the Petitioner's proposed recommended order and the entire record compiled herein, I hereby make the following:
Findings Of Fact By its Administrative Complaint signed October 21, 1981, Petitioner, Florida Construction Industry Licensing Board, seeks to take disciplinary action against Respondent and against his license as a registered roofing contractor. Respondent, Leonard L. Clark, is a registered roofing contractor who holds License No. RC 0020933 which has been issued by Petitioner. Respondent does business under the entity Clark Roofing. On January 15, 1981, Respondent entered into a contract with one Mae Coogan, to reroof her residence. The contract specifically required Respondent to "replace any bad wood," and provide a ten (10) year workmanship warranty. (Petitioner's Exhibit No. 1.) Additionally, Respondent agreed to install a 1 x 2 inch strip and a brown aluminum facia at an extra cost of $200.00. (Petitioner's Exhibit No. 1 and testimony of John Coogan.) Mrs. Mae Coogan is an elderly woman and is incapacitated. Her son, John Coogan, who lives with her in her residence, advised her during the negotiations of the subject contract, and testified as a witness in the proceedings herein. Respondent and John Coogan's testimony establishes that construction on the subject project commenced on February 10, 1981, and ceased on March 28, 1981. At that time, based upon Respondent's representation that the job was complete, Mr. Coogan paid Respondent the entire $2,500.00 due under the terms of the contract. Shortly thereafter, Mr. Coogan discovered evidence of "bad" or "rotten wood." Mr. Coogan immediately apprised Respondent of this, whereupon Respondent initially told him that he would be back to the job site to take care of any problems that existed with the reroofing project. There is conflicting evidence as to whether or not there was a subsequent telephone conversation between Respondent and Mr. Coogan following a letter which Respondent found offensive. Respondent claims that there was such a conversation and that the parties became angry at each other. At that juncture, the parties were unable to resolve their differences. Efforts by the parties to resolve their differences reached a stalemate, and Respondent did not again visit the project site or otherwise inspect the claimed damaged by Mr. Coogan. Mr. Coogan, to substantiate his claim that there was in fact rotten or bad wood left exposed in the overhang, rafters and beams surrounding the roof, introduced several photographs which depicted the condition of the wood on the roof. (Petitioner's Composite Exhibit No. 3.) Respecting the fact that there was rotten wood, as claimed by Mr. Coogan, in the rafters and overhang, Respondent admitted the existence thereof. There is also a question about the possibility of rotten wood being covered by Respondent's employees and not replaced as required by the contract. The particular area in question is a portion of a flat roof which sagged in several places. Mr. Coogan claims that he had been advised that this was due to rotten wood underneath the shingles in an area in which he specifically claims to have asked Respondent to allow him to inspect the exposed-wood surface prior to the time in which it was covered with asphalt shingles. Respondent's workers covered this area of the roof without permitting Mr. Coogan the opportunity to inspect it. Mr. Coogan testified that the roof continued to sag in the identical places where it sagged prior to the reroofing. In this regard, Respondent admits that he might have agreed to allow Mr. Coogan an opportunity to inspect the exposed roof once the shingles were removed and prior to the time that he recovered (reroofed) the flat roof. Respondent further testified that this was not due to any effort on his part to conceal or otherwise hide rotten wood and, in fact, he claimed to have covered or replaced any bad or rotten wood. In this regard, Mr. Coogan noticed at least four water leaks from his roof prior to the time that Respondent reroofed his mother's house; however, he testified, on cross-examination, that he has not seen any leaks since Respondent has completed the subject project. Bob McConnell, Volusia County Building Inspector for approximately five years, inspected the roofing job completed by Respondent for Mrs. Coogan on July 28, 1981. Mr. McConnell found that the roofing job did not comply with the contract in the following regards: The 1 x 2 inch strip beneath the brown aluminum facia, called for as an extra, was not installed; There was visible rot in the sheathing; A short hip (rafter) was replaced with unsound wood; and A rafter tail had visible rot. In this regard, Mr. McConnell, while also reporting that there were soft spots in the built-up roof, could not testify with certainty that they were the result of wood rot. Respondent testified that he has tried to contact Mr. Coogan on several occasions to correct any claimed deficiency. Respondent stands, at this time, willing to correct any deficiency that exists or to correct any problem which stems from his deviation from the contract. In this regard, Respondent has offered, and no offers, to remove the shingles from the entire roof and allow for it to be inspected by Respondent or any designated roofing contractor whom Coogan or Petitioner selects. Respondent will replace any "bad" or "rotten" wood which he has been claimed to have covered. However, Respondent expects to be paid for reroofing this job in the event that in an inspection reveals that no "bad" or "rotten" wood was covered as Mr. Coogan and Petitioner claim. Inspector McConnell has known Respondent in excess of twenty-five (25) years and is unaware of any claim that Respondent has performed any unworkmanlike or "shoddy" roofing repairs. Finally, in this connection, Respondent introduced letters from three (3) area builders who attested to Respondent's excellent workmanship. (Respondent's Composite Exhibit No. 3.)
Recommendation Based on the foregoing findings of fact and conclusions of law, it is hereby RECOMMENDED: That the Respondent be placed on probation for a period of two (2) years and that the term of probation be suspended for a period of sixty (60) days, during which time Respondent shall be allowed an opportunity to return to the Coogan residence and replace any existing exposed "rotten" or "bad" wood which should have been replaced pursuant to the terms of the contract. In the event that the Respondent properly completes the replacement of the rotten or damaged wood on this project, following an inspection by one of Petitioner's agents, it is further RECOMMENDED: That the entire term of the probation be suspended. In the event that Respondent fails to properly complete this project, following an inspection by one of Petitioner's agents, it is further RECOMMENDED: That the entire term of probation be instituted without the necessity of further hearing. RECOMMENDED this 11th day of August, 1982, in Tallahassee, Florida. JAMES E. BRADWELL, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 11th day of August, 1982.
The Issue Whether Respondent committed the offenses alleged in the Administrative Complaint and, if so, the penalties that should be imposed.
Findings Of Fact At all times relevant to this proceeding, Respondent has been licensed by the Petitioner as a roofing contractor, having been issued license number CCC 57995 by the Florida Construction Industry Licensing Board. At all times relevant to this proceeding, Respondent was the qualifier for and did business as “Victor’s Roofing Co., Inc. of the Fla. Keys” (Victor’s Roofing). At all times relevant to this proceeding, Mr. Johnson was an owner of property located at 3214 Harriet Avenue, Key West, Florida (the subject property). Mr. Johnson lives in Hollywood, Florida. The subject property is rental property. Respondent and his company are not licensed to do drywall work in Key West, Florida, and they are not licensed with Petitioner other than as a roofing contractor. ROOFING WORK On November 3, 2008, Respondent, on behalf of Victor’s Roofing, entered into a contract with Mr. Johnson to re-roof the subject property. The proposal submitted by Respondent to Mr. Johnson contained Victor’s Roofing’s full corporate name; its office address in Marathon, Florida; two telephone numbers; and a fax number. The proposal was signed by Respondent. The proposal described in some detail the scope of the work. The price of the work was $7,000.00. Mr. Johnson accepted the proposal. Victor’s Roofing completed the roofing job to Mr. Johnson’s satisfaction. A leak developed after the roof was completed and Victor’s Roofing promptly repaired the leak to Mr. Johnson’s satisfaction. Petitioner’s Administrative Complaint alleged that Victor’s Roofing had failed to obtain a permit for the roofing job on the subject property and that it had failed to obtain required inspections. Those allegations were the result of an error by Petitioner’s investigator. Ms. Del Rio obtained records from the City of Key West Building Department for the wrong address. Instead of obtaining the permit history for the subject property (3214 Harriet Avenue) she requested and obtained the permit history for 3314 Harriet Avenue. Respondent applied for a permit for the roofing job on the subject property on November 11, 2006, and he obtained an inspection of the roof on November 27, 2007 [sic]. There was insufficient evidence to establish that any other permit or any other inspection was required for the roofing work. DRYWALL WORK After the roofing job had been completed (but before the inspection on November 27, 2007),2 Mr. Johnson informed Respondent by telephone that he needed someone to replace drywall that had been damaged during the period of time the subject property’s roof leaked. Mr. Johnson asked Respondent whether he knew anyone who could do the job. Respondent replied in the affirmative and told Mr. Johnson he would have someone contact him about doing the work.3 Thereafter, Respondent’s brother, Early Harris, contacted Mr. Johnson and the two of them verbally agreed on a price of $4,000. At the time Respondent put Early Harris in touch with Mr. Johnson, Respondent knew that Early Harris was not licensed to do drywall work in Key West. After giving Mr. Johnson’s telephone number to Early Harris, Respondent had no further involvement with the drywall work on the subject property. The price of the drywall work escalated to $9,000.00 after the work began. On November 25, 2006, Early Harris and Mr. Johnson signed a written proposal agreeing to the price of $9,000.00.4 This was a form proposal with the following: Victor’s Roofing Co., Inc. 2nd Generation Serving South Florida Licensed & Insured Marathon, Fla. The only telephone number on the proposal other than Mr. Johnson’s, was the number for Early Harris’ cell phone. The contract signed by Respondent on November 3, 2006, for the roofing work was on a different form and utilized a different font than the contract signed by Early Harris on November 25, 2006. The name of the corporation on the proposal for the drywall work, while similar to the name of Respondent’s company, was different. Early Harris has worked for Respondent’s business for several years, but there was no clear and convincing evidence that Early Harris had the authority to contract on behalf of Respondent’s business in November 2006. There was no evidence that Early Harris is a part owner of Respondent’s business or that he is an officer or director of Respondent’s business. Respondent testified, credibly, that Early Harris was not authorized to contract on behalf of Respondent’s business at the times relevant to this proceeding. There was no clear and convincing evidence to refute Respondent’s assertion that Earl Harris had no authority to contract on behalf of Respondent’s business. Early Harris did the drywall work on the subject property. Mr. Johnson paid Early Harris $9,000.00 for the drywall work. Mr. Johnson could not find the check(s) he wrote for the drywall work and, consequently the check(s) were unavailable as an exhibit. His recollection as to the name of the payee of the check(s) was not clear. Respondent testified, credibly, that neither he nor his business received any of the money for the drywall work. The drywall work Early Harris did was not to Mr. Johnson’s satisfaction. Mr. Johnson had to pay $600.00 to a drywall contractor for corrective work. In addition, Mr. Johnson had to pay $600.00 for a permit to have the repair work done.5 The total investigative costs of this case to Petitioner, excluding costs associated with any attorney’s time, was $191.16.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that the Department of Business and Professional Regulation, Construction Industry Licensing Board, enter a final order finding Respondent not guilty of the violations alleged in Counts I, II, and III of the Administrative Complaint. DONE AND ENTERED this 14th day of January, 2010, in Tallahassee, Leon County, Florida. CLAUDE B. ARRINGTON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 14th day of January, 2010.
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 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
Findings Of Fact The Respondent is a registered roofing contractor, having been issued license number RC 0020923. On may 27, 1982, the Respondent, doing business as T & T Roofing Company, contracted with Jessie Reid, 1021 Abeline Drive, Deltona, Florida, to replace an existing shingle roof for a total contract price of $2,406.20. At all times material hereto, the Respondent was registered with the Construction Industry Licensing Board as qualifying agency for A. L. Roofing Specialists. At no time has the Respondent qualified T & T Roofing Company. On August 26, 1982, when the Respondent completed work on Jessie Reid's roof, he was paid $2,406.20 which was the entire contract price for this job. The Respondent was to return to the job site to inspect the roof and correct minor remaining problems. However, when the Respondent would not return to the job, even after repeated calls, it was determined that there is a difference in shingle thickness at points on the roof, and the rain runs down over the gutters instead of into them. Further, the hip and ridge caps are of a different material than the major portion of the shingled roof; there are exposed nails; and the gutters are filled with roofing debris. The Respondent has not been responsive to communications and he has refused to make the necessary corrections to Jessie Reid's roof. The Respondent never obtained a permit for the reroofing work done for Jessie Reid at 1021 Abeline Drive, in Deltona. A permit is required to do reroofing work in Deltona, which is within the jurisdiction of Volusia County.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Registered Roofing Contractor's license number RC 0020923 held by the Respondent, John W. Thorn, be revoked. DONE AND ENTERED this 30th day of May 1984 in Tallahassee, Florida. WILLIAM B. THOMAS Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 30th day of May 1984. COPIES FURNISHED: Edward C. Hill, Jr., Esquire 130 North Monroe Street Tallahassee, Florida 32301 Mr. John W. Thorn Post Office Box 1897 Deland, Florida 32720
Findings Of Fact At all times material hereto, Respondent has been a registered roofing contractor in Miami, Florida, having been issued license no. RC 0047352. Respondent is the qualifying agent for All Central Roofing, Inc. In May 1986 All Central Roofing, Inc., entered into a contract with Richard Crisonino to perform certain roofing work on Crisonino's residence in Miami, Florida. The contract price was $3,374. All Central Roofing, Inc., thereafter began the roofing work on Crisonino's residence without obtaining a permit for that work from the local building department and without posting a permit on the job site. All Central Roofing, Inc., failed to obtain the required inspections by the local building department. After completing part of the work involved and after receiving substantial payment under the contract, All Central Roofing Company, Inc., ceased work on the Crisonino residence and failed or refused to complete the work, thereby abandoning the job. By her own admissions at the final hearing in this cause, Respondent does not possess a working knowledge of roofing or roofing contracting. She lacks even a basic fundamental understanding of roofing construction to the extent that it is impossible that she is fulfilling any of her responsibilities as a qualifying agent for All Central Roofing, Inc. Further, Respondent does not even know the number of employees working for All Central Roofing, Inc. Respondent has been disciplined by the Dade County Construction Trades Qualifying Board, and Respondent's personal and business certificates have been revoked by that Board.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is, RECOMMENDED that a Final Order be entered finding Respondent guilty of the allegations contained in the Administrative Complaint filed against her and revoking Respondent's registered roofing contractor license. DONE and RECOMMENDED this 14th day of December, 1987, at Tallahassee, Florida. LINDA M. RIGOT, 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 14th day of December, 1987. COPIES FURNISHED: Fred Seely, Executive Director Construction Industry Licensing Board Post Office Box 2 Jacksonville, Florida 32201 G. Vincent Soto, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 Harry E. Geissinger, Esquire 415 West 51st Place, Suite 201 Hialeah, Florida 33012 Tom Gallagher, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750
