The Issue Based upon the stipulated facts, only one issue, a legal one, must be resolved. The issue is whether Section 489.111(4)(c), Florida Statutes, is properly applied by the Board which interprets this section to require a minimum of four years of experience as a certified contractor. Having considered the statute and the Board's position in applying the interpretation above, it is concluded that the Board's interpretation is erroneous.
Findings Of Fact The Petitioner, Margaret K. Roberts, was licensed as a Certified Building Contractor October 19, 1984. Petitioner filed an application to take the State Certified General Contractor's Examination on or about December 19, 1984. At the time Petitioner applied to take the Certified General Contractor's Examination, she held Certified Building Contractor's License No. CB C031970 and she had four years of proven experience in the Certified Building Contractor's field, although she had only been certified as a building contractor since October 19, 1984. One may obtain experience in an area of contracting without being certified. Petitioner is not qualified by virtue of holding a baccalaureate degree or experience as a residential contractor. Petitioner was not certified as a building contractor for four years prior to applying for the general contractor's examination. Petitioner's only basis of claimed eligibility to take the General Contractor's Examination is Section 489.111(4)(c), Florida Statutes. The Respondent denied the Petitioner's application to take the certification examination because of insufficient time as a certified building contractor in accordance with Florida Statutes 489.111(4)(c). Other than the issue of requisite experience as a certified contractor, Petitioner meets all other statutes and Board Rules regarding eligibility for the Certified General Contractor's Examination.
Recommendation Based upon the stipulated facts and the conclusions of law, it is recommended that Section 489.111(4)(c), Florida Statutes, be interpreted to include qualifying service in a non-certified capacity and that Petitioner's application to take the building contractor's examination be approved. DONE AND ORDERED this 11th day of March, 1986 in Tallahassee, Leon County, Florida. STEPHEN F. DEAN, Hearing Officer Division of Administrative Hearings 2009 Apalachee Parkway Tallahassee, Florida 32399 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 11th day of March, 1986 COPIES FURNISHED: James Linnan Executive Director Construction Industry Licensing Board P.O. Box 2 Jacksonville, Florida 32202 Fred Roche, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Salvatore A. Carpino, Esquire General Counsel Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Maxwell G. Battle, Esquire 8204-A West Waters Avenue Suite 350 Tampa, Florida 33615 Arden Siegendorf, Esquire Assistant Attorney General Department of Legal Affairs The Capitol Tallahassee, Florida 32301 ================================================================= AGENCY FINAL ORDER ================================================================= STATE OF FLORIDA DEPARTMENT OF PROFESSIONAL REGULATION CONSTRUCTION INDUSTRY LICENSING BOARD MARGARET K. ROBERTS, License No. CB-C031970 Petitioner, DOAH CASE NO. 85-2240 DEPARTMENT OF PROFESSIONAL REGULATION Respondent. /
Findings Of Fact At all times pertinent to the allegations contained in the Administrative Complaint, Respondent John G. Gordon, Jr. was licensed by the State of Florida as a registered roofing contractor by License No. RC-0032501, first issued to Respondent, qualifying as an individual in 1978 and continually renewed as such since then. On June 4, 1981, Respondent was called by Ms. Allene S. Gilbert to give her an estimate on re-roofing the two flat portions of her house roof. When he went to the house, he went up on the roof by himself to look and, when he came down, he gave her an estimate of $1,400 to re-roof the two flat sections on either side of the gabled center section. He did not then, or any time thereafter, prior to doing the work, indicate there was anything wrong with the siding which connected down from the gabled roof to the flat roof. After making his inspection and giving the estimate which Ms. Gilbert accepted, he entered into an oral contract with her which, when reduced to unsigned memo form, provided that he would tear off the old roof down to the deck and replace it with a 15-year built up roof consisting of a total of five layers. He also agreed to replace the rock and all metal around the edges of the house. He specifically stated that the work he did, both materials and his workmanship, was guaranteed for 15 years against leaks. Respondent indicates he found that the metal flashing along the side of the house where the flat roof joins the siding was rusted out and he replaced it. He contends that this rust was due to the deteriorated (rotten) condition of the lap siding above the flat roof which allowed water to get in behind the flashing. In any case, during the first rain after the completion of the work, the preexisting leaks in the bedroom which prompted the roof replacement were worse and additional leaks developed inside the house. The leakage was so severe, the bathroom ceiling caved in. Ms. Gilbert called Respondent many times to get him to come out and repair the leaks, but never was able to speak with him personally. Each time she called, she would leave a message with whomever answered the phone, requesting that he come out or call, and was assured that these messages were getting relayed to Respondent, but he never returned any call and, to the best of her knowledge, he never came to her house again. However, she works during the day and would not know if he was there or not. No neighbor told her they saw someone there, and she received no note or other indication that the Respondent had come. Respondent admits that having once responded to her earlier call and seeing that the leaking was caused by the condition of the siding for which he was not responsible and about which he had previously done nothing, he was satisfied that his work was done properly and he did not call back or ever respond to any of Ms. Gilbert's other calls. He contends that the problem was not caused by him or a part of the work he had done. Therefore, he was not responsible for it. Ms. Gilbert contends, after trying to get Respondent to honor his guarantee for six months, she gave up and had someone else to do the job. The leaks are now repaired and the siding which Respondent stated was rotten, though painted once since then, has not been replaced or repaired. Respondent having entered into the contract with Ms. Gilbert, began and completed the entire project without either (1) having an occupational license as required by Section 14-39, Ordinance of the City of Fort Walton Beach; or, (2) securing a permit for the repair as required by Section 106.1, Standard Building Code, incorporated into the Ordinance of the City of Fort Walton Beach.
Recommendation Based on the foregoing, therefore, it is RECOMMENDED that Respondent pay an administrative fine of $250 and that he be placed on probation for six (6) months. DONE AND ENTERED this 9th day of May 1984 in Tallahassee, Florida. ARNOLD H. POLLOCK 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 9th day of May 1984. COPIES FURNISHED: Douglas A. Shropshire, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Mr. John G. Gordon Post Office Box 498 Destine, Florida 32541 James Linnan, Executive Director Construction Industry Licensing Board Post Office Box 2 Jacksonville, Florida 32202 Fred M. Roche, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301
The Issue The issue is whether respondent's license as a registered roofing contractor should be disciplined for the reasons set forth in the administrative complaint.
Findings Of Fact Based upon the entire record, the following findings of fact are determined: At all times relevant hereto, respondent, Raymond D. Simmons, was licensed as a registered roofing contractor having been issued license number RC 0055320 by petitioner, Department of Professional Regulation, Construction Industry Licensing Board (Board). He has been licensed as a roofing contractor since November 1987. The Board's official records reflect that on July 1, 1991, the license was placed on the delinquent status for non-renewal and is now considered "invalid." 1/ When the events herein occurred, respondent was the qualifying agent for Simmons and Sons Plumbing and Roofing, Route 1, Box 191 (County Road 225), Waldo, Florida. Except for this action, there is no evidence that respondent has ever been disciplined by the Board. On May 3, 1988, respondent submitted a proposal to Charles and Thea Ansman to repair the roof on their home located at 5132 N. W. 29th Street, Gainesville, Florida. With minor modifications, the proposal was accepted by the Ansmans on May 10, 1988. According to the agreement, respondent was to perform the following services: Tear off old shingles dry-in with 15 lb. felt and replace with Corning Owens 20 year fungus resistant shingles. Replace all plumbing stacks and ease drips. Will replace back porch with 3-ply build-up roof will coat it with roof coating 10 year warranty on workmanship 20 year manufactor [sic] on shingles and build-up roof. Will replace all wood that needs to be replaced. Although the agreement does not specifically refer to ridge vents, the parties also agreed that respondent would install a ridge vent on the home. On May 16, 1988, respondent made application for a building permit from the City of Gainesville to "reroof" the Ansman's home. The permit was issued on May 20, 1988, in the name of Simmons & Sons Plumbing and Roofing. Respondent commenced work on the project on May 16 and continued the work over a period of several days. During this period of time, respondent was frequently on the job site overseeing the work. Indeed, Thea Ansman said respondent was at her home approximately half of the time while the repairs were being made. Thus, while respondent undoubtedly supervised the job, for the reasons stated in findings of fact 6 and 7, he nonetheless failed to "properly" supervise the work. On May 20, 1988, Thea Ansman paid respondent in full for the work. Although the job was not finished, respondent told Mrs. Ansman he would return the next day to complete the work. When respondent failed to return, the Ansmans repeatedly telephoned him during the next few months, but respondent either refused to speak with the Ansmans or told them he would return within a few days. However, the work was never finished and respondent never returned to the job site. While inspecting the roof one day, Charles Ansman noted that the roof trusses, an intregal part of the load bearing capacity of the structure, were cut at their peaks. The depth of the cuts was between one and two inches and was apparently the result of a saw-blade not set at the proper height when the ridge vent was installed. Sometime in July or August 1988 Charles Ansman discussed the damage with respondent and requested that respondent repair the same. Respondent refused to do so on the ground he was not responsible for the damage. Ansman then filed a complaint with the City of Gainesville Building Department. On September 9, 1988, a city building inspector inspected the home and confirmed that virtually every truss was cut and that the integrity of the roof was in jeopardy. He also observed that the soffits were improperly installed in some cases, and in others, were missing altogether. A notice of violation was then issued by the city on October 3, 1988, charging respondent with violating the Standard Building Code in two respects. More specifically, it was charged that respondent's workmanship violated sections 1701.1.1 and 1708.2.1 of the 1985 Standard Building Code, as amended through 1987. These sections pertain to the quality and design of wood trusses and the design of trussed rafters, respectively. At a hearing before the city's Trade Qualifying Board, respondent admitted his workers had violated the cited sections and caused the damage to the trusses. However, respondent denied liability on the theory that the workers, and not he personally, had negligently damaged the house. Respondent was thereafter issued a letter of reprimand for his actions. In order to recover their damages, which included the replacement of all damaged trusses, the Ansmans filed suit against respondent in Alachua County small claims court. On April 18, 1989, they received a judgment in the amount of $1,050. The judgment was eventually satisfied but only after the Ansmans threatened to levy on respondent's real property located in Alachua County. In preparation for the suit, the Ansmans obtained an engineering report which corroborates the findings made by the city building inspector concerning the damage and negligence on the part of respondent's work crew. By allowing the work to be performed in that manner, respondent was incompetent and committed misconduct in his practice of contracting. However, there is no evidence that respondent was grossly negligent during his supervision of the job. Respondent did not appear at hearing. However, prior to hearing he spoke to the city building inspector and acknowledged that the roof trusses were damaged as the result of negligence on the part of his crew. He also admitted this during the final hearing on the small claims action. At the same time, he denied that his workers had ever touched the soffits. This assertion, however, is rejected as not being credible.
Recommendation Based upon the foregoing findings of facts and conclusions of law, it is, recommended that respondent be found guilty of violating Subsection 489.129(1)(m), Florida Statutes (1987), and that he pay a $1000 fine and his license be suspended for one year. RECOMMENDED this 16th day of December, 1991, in Tallahassee, Florida. DONALD R. ALEXANDER 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 16th day of December, 1991.
The Issue The issue is whether respondent's license as a certified building contractor should be disciplined for the reasons stated in the administrative complaint.
Findings Of Fact Based upon all of the evidence, the following findings of fact are determined: At all times relevant hereto, respondent, Leroy A. Decker, Jr., held certified building contractor license number CB CO40724 issued by petitioner, Department of Professional Regulation, Construction Industry Licensing Board (Board). When the events herein occurred, respondent was doing business as Aladdin Homes, Inc. (Aladdin) located at 921 S.EA. 15th Avenue, Cape Coral, Florida, and was its registered qualifying agent. In 1987 respondent, acting as qualifying agent for Aladdin, began a business relationship with Designers Showcase of Cape Coral, Inc. (DSCC), a firm specializing in the sale and installation of furniture, carpeting and draperies. Under that relationship, DSCC acted as a subcontractor and installed various floor coverings in new homes constructed by respondent. Under a typical contract for the construction of a new home, the builder agrees to include within the sales price an allowance for floor coverings such as carpet. If a home buyer decides to purchase floor coverings that exceed the allowance, the buyer is responsible for any overage. Under this arrangement, the contractor normally pays the supplier for the amount of allowance prescribed in the contract while the buyer pays the supplier for any overage. From the outset of respondent's relationship with DSCC until it ended, the specifications in respondent's contracts, with certain exceptions, generally called for a floor covering allowance in the range of $1,500. Beginning in March 1988 several of respondent's new home customers became dissatisfied with the quality of floor furnishings provided by DSCC. Because of this, some buyers refused to pay respondent for the value of the floor furnishings provided by that subcontractor. This In turn engendered a dispute between respondent and DSCC and culminated in respondent, with a few exceptions, refusing to pay any moneys owed to DSCC after March 1988. In early 1988 respondent entered into a contract with one Joseph Cernlglia to construct a new home for Cerniglia in Cape Coral, Florida. Pursuant to the contract specifications, respondent gave Cerniglia a $1,500 allowance for floor coverings. Cerniglia opted to use DSCC as the carpet vendor and was well satisfied with the quality of DSCC's workmanship and materials. After the carpet was installed, respondent requested that Cerniglia sign an affidavit (letter of acceptance) so that respondent could receive his final draw from the bank. However, respondent did not advise Cerniglia that DSCC had not yet been paid for its services. Shortly thereafter, respondent signed an affidavit swearing that all suppliers on the Cerniglia project had been paid. Cerniglia later discovered that a $1,500 lien had been filed against his property by DSCC on June 30, 1988. The lien still remains outstanding. In early 1988 respondent entered into a contract to construct a new home for Buddy H. Dennis in Cape Coral, Florida. The contract specifications called for a $2,500 allowance for floor coverings. Before DSCC would install the floor coverings, it demanded payment from respondent for what it believed was the normal $1,500 builder's allowance. After this amount was paid, DSCC furnished, pursuant to the owner's request, $2,500 worth of labor and materials. DSCC attempted to collect the other $1,000 from Dennis but learned that the contract allowance was $2,500 rather than $1,500. Although DSCC invoiced respondent for the additional $1,000, and made numerous oral and written requests for payment to respondent, the remaining $1,000 was never paid. On September 12, 1988, a lien was placed on the property by DSCC. Prior to the lien being recorded, respondent executed a final affidavit and release of lien on August 22, 1988 in which he swore that all subcontractors had been paid. Dennis eventually paid the $1,000 himself in order to obtain clear title to his property. In addition to the Dennis and Cerniglia properties, respondent still owes DSCC $11,654.14 (without interest) for goods and services rendered on other projects. These bills were incurred for goods and services provided after March 1988, when the dispute between respondent and DSCC arose. Whether respondent executed affidavits in connection with those debts is not of record. Because of those and the two above debts, DSCC filed with the Board a complaint against respondent. Respondent justified his actions on the ground he was advised to do so by his attorney and not pay DSCC any money while his complaints regarding poor quality and workmanship were unresolved. As to the Cerniglia property, respondent contends that, just prior to completing the home, he determined that it was necessary to add (a) a stem wall and (b) extra fill dirt to raise the septic tank drainfield. According to respondent, these two items cost around $1,500. Because the dispute with DSCC was then ongoing, respondent did not pay DSCC the $1,500 owed as an allowance and instead, based upon his attorney's advice, decided to use that amount as leverage in his dispute with DSCC. However, respondent did not advise Cerniglia that $1,500 was added to the contract price and that it was Cerniglia's responsibility to pay DSCC for the builder's allowance still owed. Moreover, Cerniglia denied that the additions were ever satisfactorily completed or that their value equated to $1,500. As to the Dennis property, respondent contended, without corroboration, that the real estate office which sold the home increased the builder's allowance on the specifications from $1,500 to $2,500 without advising him. Even if this was true, respondent refused to pay the additional $1,000 after he learned of his increased allowance responsibility under the specifications.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that respondent be found guilty of violating Subsections 489.129(1)(1) and (m), Florida Statutes (1987) and that he be fined $3,000, to be paid within thirty days after the Board enters its final order. DONE and ENTERED this 20th day of August, 1990, in Tallahassee, Florida. DONALD R. ALEXANDER 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 August, 1990. APPENDIX TO THE RECOMMENDED ORDER IN CASE NO. 90-1710 Petitioner: 1-3. Partially adopted in finding of fact 1. Partially adopted in findings of fact 2 and 3. Partially adopted in finding of fact 6. Partially adopted in finding of fact 5. Note - Where a proposed finding has been partially used, the remainder has been rejected as being irrelevant, unnecessary, subordinate, not supported by the evidence, or a conclusion of law. COPIES FURNISHED: Robert B. Jurand, Esquire 1940 North Monroe Street, Suite 60 Tallahassee, FL 32399-0792 Mr. Leroy A. Decker, Jr. 618 S.W. 57th Street Cape Coral, FL 33914 Kenneth E. Easley, Esquire 1940 North Monroe Street, Suite 60 Tallahassee, FL 32399-0792 Fred Seely Executive Director Post Office Box 2 Jacksonville, FL 32202
Findings Of Fact These proceedings were set for final hearing by a Notice of Hearing dated July 8, 1983 addressed to the parties, including Respondent at 488 Esther Lane, Altamonte Springs, Florida, 33596. 2/ The Notice of Hearing was not returned to the Division of Administrative Hearings as undelivered. At the time and place noticed for the final hearing the Hearing Officer waited until 9:16 a.m., to commence the proceedings, which concluded at 11:08 a.m. At no time has the Respondent contacted the Hearing Officer concerning a continuance or explained his failure to appear as noticed. At all times material to this proceeding Mr. McIntee has been licensed as a certified building contractor under license number CB C015923. He was also the qualifying agent pursuant to Section 489.119, Florida Statutes, for Delco, Incorporated. At no time has he ever attempted to qualify or otherwise notify the Construction Industry Licensing Board that he intended to affiliate with or do business as Earth Shelter Corporation of Florida, Inc. On July 30, 1980 Earth Shelter Corporation of Florida, Inc. (Earth Shelter) entered into a contract with Mr. and Mrs. William Sweet to construct an earth shelter single family residence in Lake County, Florida. The estimated cost of the project was to be $57,000 and was guaranteed not to exceed $60,000. The contract was negotiated by Respondent acting as president of Earth Shelter. Mr. McIntee was the contractor who pulled the building permit on behalf of Earth Shelter. The project was financed by First Family Federal Savings and Loan Association of Eustis, Florida. In order to obtain payments from the Association, Respondent periodically executed affidavits which stated in part: Affiant says further that all the subcon- tractors, materialmen or any other persons performing labor and furnishing materials used in the construction of the building, or improvements to the premises or appur- tenances thereof, have been fully paid in- cluding all extras. As the result of executing these affidavits Respondent received draws totaling $49,079.26 on the dates of September 30, 1980, October 31, 1980, December 3, 1980, February 4, 1981 and July 10, 1981. These affidavits were false. At the time the affidavits were executed all the subcontractors had not been paid by Respondent. As an example, Frank Wagner Excavating, Inc. performed subcontracting services at the Sweet project on June 4 and 5, 1981 at a cost of $1,451. This was billed to Respondent on June 6, 1981. He sent Wagner Excavating a check dated June 6, 1981, in the amount of the invoice, but the check was returned to Wagner for lack of sufficient funds at Respondent's bank. Before Respondent's check bounced, but subsequent to invoicing the work done on June 4 and 5, 1981, Mr. Wagner performed additional earth moving work at the Sweet project on July 3, 8, 9 and 10, 1981. That work was invoiced on July 10, 1981 for $1,378.75. No attempt was made by Respondent to pay for the second invoice. Eventually Wagner Excavating was paid by Mr. Sweet personally and by an additional payment directly to Wagner Excavating by First Family Federal Savings and Loan Association in order to satisfy Wagner's lien. In order to protect himself, Wagner had filed a lien against the Sweet property on August 17, 1981. Because of structural defects in the construction of Mr. Sweet's home performed by Respondent, Mr. Sweet filed a complaint with the Lake County Board of Examiners against Respondent. Notice of that complaint was given to Respondent on August 18, 1981. He was informed that on September 1, 1981 the Lake County Board of Building Examiners would take testimony concerning the allegations contained in the complaint. Respondent was urged to attend the meeting and to be represented by counsel if he so desired. Mr. McIntee did appear at that meeting. An investigation of the complaint followed. Respondent was subsequently noticed for a second meeting of the Board of Examiners to be held on October 6, 1981 concerning the Sweet complaint, but he failed to appear. At that time the results of the investigation were reviewed and the Lake County Board of Examiners revoked Respondent's license as a contractor in Lake County for abandonment and code violations related to his work on Mr. Sweet's residence. On September 19, 1980 Earth Shelter through Respondent entered into a contract with James V. Migliorato to construct a residence in Seminole County, Florida. The contract price was $48,500. During the course of the work performed by Mr. McIntee, liens in the amount of approximately $9,500 were filed by third parties who provided materials and services under subcontract to Earth Shelter in the construction of Mr. Migliorato's residence. By March of 1981 Respondent had abandoned the project without cause. Mr. Migliorato later met with him at which time Respondent explained that he had run out of money and was not going to finish the job. In August of 1981 Mr. Migliorato and his counsel met with Respondent and his counsel. During their discussions Respondent stated that the money which he had been paid for work on the Migliorato home had been diverted by him for use on the Sweet residence mentioned above. The liens outstanding against Mr. Migliorato's property were never satisfied by Respondent and had to be paid by the homeowner. An example of the outstanding liens was that filed by Superior Distributors, Inc. which supplied and installed a kitchen and bathroom cabinet at the Migliorato residence. The work was completed on June 30, 1981 and invoiced on the same date for $2,128. This invoice has never been paid by Respondent.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That the Construction Industry Licensing Board enter a Final Order revoking Respondent's license as a certified building contractor in the State of Florida. DONE and RECOMMENDED this 14th day of October, 1983, in Tallahassee, Florida. MICHAEL P. DODSON 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 14th day of October, 1983.
The Issue Whether Petitioner should be granted additional credit for one or more examination questions answered by him during the June 1990 Certified Building Contractor Examination.
Findings Of Fact Petitioner sat for the June 1990 certified building contractor examination. On Part II, he received a score of 68.0. A minimum passing score is 69.01. On Part III, he received a score of 71.00. Minimum passing score is 69.01. Petitioner had previously passed Part I of the exam. Petitioner initially challenged question numbers 6, 13 and 14. Upon completion of the testimony, Petitioner withdrew his challenges to question numbers 13 and 14. The National Assessment Institute prepares licensure examinations for building contractors in the State of Florida under authority of the Office of Examination Services, Department of Professional Regulation. The Institute prepared question number 6 for the certified building contractor examination administered on June 26 and 27, 1990. Question number 6 tested the candidate's ability to calculate the time necessary for a crew to excavate, form and pour concrete for a reinforced concrete curb and gutter in a parking area and have it inspected. The candidate was asked to select the earliest date that concrete can be scheduled to be poured. Four dates were given: (A) June 11, (B) June 13, (C) June 15, and (D) June 18, 1990. The Institute determined that the only correct answer was: (D) June 18, 1990. The Petitioner selected: (C) June 15, 1990. Part of the instructions to the examination candidates stated: "The inspection request will NOT be called in the day the work is completed." The evidence was undisputed that preliminary calculations indicate with regard to question 6 the mathematical approach to the solution demonstrates that the work will take nine days (rounded up), starting June 1 and completed on June 13, and, therefore, the inspection is to be called in on Thursday, June 14, 1990. The third paragraph of the question states: Inspections have been taking one day from the time the inspection is called in until the time the inspection is completed. Inspections can NOT be called in or performed on Saturdays or Sundays." The first sentence of the fourth paragraph states: "The concrete is to be placed the day after the inspection is completed." (Emphasis supplied) The Department's position is that the plain language of the question indicates that it would take one day or 24 hours from the date the request for inspection was called in (June 14) until the inspection was completed which would be June 15. Since the instructions were clear that the concrete cannot be poured on the same day the inspection is completed or on Saturdays or Sundays, then the earliest date that the concrete can be scheduled is Monday, June 18, 1990, or answer (D). The Petitioner argues that it is not uncommon in the construction industry to "call in" an inspection in the morning and have it completed on the same date (in one day). Therefore, since it is undisputed that the inspection is to be "called in" on Thursday, June 14, that it was reasonable and logical for him to conclude that the inspection would also be completed the same date. Since the question instructed that the concrete is to be placed the day after the inspection is completed, he selected answer (C), June 15, 1990 (a Friday) as the correct answer. The Department does not dispute that it is common practice in the construction industry for an inspection to be called for and completed in one day. The Department's determination that answer (D) was the only appropriate answer was arbitrary and unreasonable.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that: Petitioner be awarded four points for his answer to question number 6 of Part II of the Certified Building Contractor examination for June, 1990. Petitioner be awarded a passing grade for Parts II and III of the examination. DONE AND ENTERED this 28th day of March, 1991, in Tallahassee, Leon County, Florida. DANIEL M. KILBRIDE 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 28th day of March, 1991. APPENDIX The following constitutes my specific rulings, in accordance with section 120.59, Florida Statutes, on findings of fact submitted by the parties. Petitioner's proposed findings of fact. Accepted in substance: paragraphs 1,2,3,4,5,6,7,10 Rejected as argument: paragraphs 8,9 Respondent's proposed findings of fact. Accepted in substance: paragraphs 1,2,3(included in Preliminary Statement), 4(in part),5. Rejected: paragraph 4(in part, as against the greater weight of the evidence and argument), 5 and 6(challenge withdrawn) Copies furnished: George Solar 1302 West Adalee Street Tampa, Florida Vytas J. Urba, Esquire Senior Attorney Department of Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792 Daniel O'Brien, Executive Director Construction Industry Licensing Board Post Office Box 2 Jacksonville, Florida 32202 Jack McRay, Esquire General Counsel Department of Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792
Findings Of Fact At all times material hereto, Respondent was licensed by the Construction Industry Licensing Board as a registered roofing contractor (RC- 0034055), building contractor (CB-C033206), and certified roofing contractor (CC-C035625). At the time of hearing, license RC-0034055 had expired and was no longer in effect. Although Petitioner introduced a "certification of licensure", executed by its custodian of records which purports to establish prior disciplinary action by the Construction Industry Licensing Board against Respondent, said certification references license number CG-C024378. There is no documentation in the record to establish that Respondent has license number CG-C024378, and in any event if this is, in fact, his license, this case does not involve license number CG-C024378. The records' custodian was not present to testify or to be cross-examined, and therefore this apparent discrepancy in the certification is unexplained. Further, the only documentation introduced to support prior disciplinary action by the Board against one of Respondent's licenses, is a certified copy of an order dated August 7, 1985 (Case No. 0051210), but this case involves license RC-0034055, which expired in July 1987 and is no longer in effect. Therefore, it has not been established by evidence in this record that Respondent has previously been subject to disciplinary action by the Construction Industry Licensing Board concerning his current valid licenses, CB- C033206 and CC-C035625. Respondent was the qualifying agent at all times material hereto, of Unique Construction, Inc., 1302 North Clearview Avenue, Tampa, Florida. On February 25, 1986, George Katsarelis entered into a sales contract with Unique Construction, Inc., to reroof his entire house at 6 Venetian Court, Tarpon Springs, Florida. Respondent was not present when the contract was executed, and had not met Katsarelis at the time work commenced on the job. Katsarelis specified to the salesman representing Unique Construction, Inc., that he wanted to be sure all required local permits were pulled for this job. Work on the Katsarelis roof began within only a few days of the execution of the sales contact. Crews from Unique Construction tore off approximately 80% of the Katsarelis roof before a City of Tarpon Springs building inspector stopped work on the job because no permit had been obtained. Thereafter, it took two days for Unique to put a temporary cover over Katsarelis' uncovered roof while a permit was being obtained. A permit was finally obtained on March 19, 1986, and the work was completed. Katsarelis paid Unique Construction, Inc., $7,000, the full contract amount, for reroofing of his home. Between February 25, 1986, and December 1987, Katsarelis had to repeatedly call Unique Construction since his roof leaked every time it rained. A ten foot ceiling section in his Florida room eventually caved in due to these leaks. In December 1987, Respondent came to Katsarelis' home for the first time and decided to reroof the whole house for a second time. No additional payment was required or made by Katsarelis for this second reroofing job. After a hard rain in April 1988 his roof again leaked, and within a week prior to hearing, Respondent made a third attempt to correct Katsarelis' leak problem. According to expert testimony and evidence offered at hearing by Owen Baynard, who was accepted as an expert in roofing, work performed by Unique Construction on the Katsarelis roof was incompetent and the result of a lack of proper supervision of the work crews by the qualifying agent, Respondent. The job fails to meet the standards of local building practices. There was improper and insufficient preparation of the roof surface, a lack of adequate adhesive, nailing, and mopping to meet Sections 101, 107, 109 and 113 of the Southern Standard Building Code Roof Coverings standards, applicable in this case. The only way to remedy Katsarelis' continuing leak problem is to completely redo all work done by Unique Construction on his roof, and completely reroof his house in a workmanlike manner. As qualifying agent for Unique, Respondent was responsible for beginning work on Katsarelis' roof without obtaining or assuring that someone else had obtained a local permit for the job. A permit was not posted on the site when this work began, in violation of local building code requirements. Respondent failed to obtain required local building department inspections on the job. Respondent's actions on the Katsarelis job, as qualifying agent and in actions taken personally on two occasions to correct continued leakage, were incompetent and of substandard quality. On December 17, 1986, Lawrence E. Burkett entered into a sales contract with Unique Construction, Inc., to reroof his home on 62nd Avenue, N.E., in St. Petersburg, Florida. Work commenced shortly after this contract was executed, and upon completion Burkett paid Unique $3,657, the contract amount. Respondent admits that leaks continued to exist in Burkett's roof for nine or ten months after Unique's crews worked on his roof. Finally, on September 16, 1986, Unique's crew replaced a section of roof and this corrected the leaking. In an attempt to correct or prevent damage from leakage, Unique's crews installed pans between Burkett's drop ceiling and the roof to catch water which was leaking into his Florida room. A permit was not posted on the Burkett job, but the record does not establish whether a local permit for this job was required to be posted. On or about February 23, 1987, Respondent was issued a letter of reprimand by the United Construction Trades Board of the City of Tampa. However, no action was taken against his local certificate. This reprimand resulted from a roofing job performed by Respondent on the home of Gerald T. Minnick in late 1986. Repeated attempts by Respondent to correct leakage in the Minnick roof failed.
Recommendation Based upon the foregoing, it is recommended that the Construction Industry Licensing Board enter a Final Order suspending Respondent's licenses numbered CB-C033206 and CC-C035625 for a period of six (6) months and imposing an administrative fine of $2,500; provided that after the expiration of thirty (30) days from the issuance of the Final Order if Respondent pays said fine in full, his license shall be immediately reinstated. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 5th day of August, 1988. DONALD D. CONN Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1050 Filed with the Clerk of the Division of Administrative Hearings this 5th day of August, 1988. COPIES FURNISHED: David Bryant, Esquire 220 East Madison Street Tampa, Florida 33602 William E. Whitlock, III, Esquire 116 East 3rd Avenue Tallahassee, Florida 32303 Fred Seely, Executive Director Department of Professional Regulation Construction Industry Licensing Board Post Office Box 2 Jacksonville, Florida 32201 William O'Neil, Esquire General Counsel Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 =================================================================
