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 The issue in this case is whether Respondent committed negligence in the practice of engineering as alleged in the amended administrative complaint filed by Petitioner and, if so, the penalty that should be imposed.
Findings Of Fact Based upon the oral and documentary evidence adduced at the hearing and the entire record in this proceeding, the following findings of fact are made: At all times pertinent to this proceeding, Respondent was duly licensed as a professional engineer in the State of Florida, having been issued license number PE 0023976. In September, 1992, Dade County passed and adopted an emergency ordinance amending the South Florida Building Code to handle the processing of construction permits and inspections created by the devastation of Hurricane Andrew. Section 6(e) of the Emergency Ordinance addressed roof repairs and required a minimum of six nails to be used for each shingle. By early 1993, Dade County Roofing Inspectors were severely overtaxed by the volume of work occasioned by Hurricane Andrew. To ensure more timely inspections, Dade County Officials approved the use of private practice architects and engineers to assist the county in making inspections and affirming code compliance. At all times pertinent to this case, Robert Brombach (the "Owner") was the owner of a residence (the "House") located at 8050 SW 92nd Avenue, Miami, Florida. In March 1993, the Owner hired Hytek Roofing to re-roof his residence because of damage from Hurricane Andrew. The re-roofing job was to begin on March 8, 1993 and was to be completed by March 23, 1993. At all times pertinent to this case, Respondent was employed by All State Engineering & Testing Consultants, Inc. Hytek Roofing hired Respondent in his capacity as a special inspector for Dade County to perform the shingle inspection/final inspection for the re- roofing of the House. The roof of the House had two separate systems. The front and back of the roof were pitched sufficient to hold shingles. There was also a flat deck portion of the roof that had very little pitch. Prior to the repair work at issue in this case, this flat portion was hot mopped and tarred. Pursuant to the 1988 South Florida Building Code which was in effect at the time of this re-roofing job, composition shingles were not to be applied to roofs having an incline of less than 2 1/2 inches per foot. After it completed re-roofing the shingled section of the roof, Hytek contacted Respondent to do an inspection. On March 23, 1993, Respondent conducted a "shingle inspection/final inspection" of the roof and prepared a Daily Field Inspection Form (the "Inspection Form".) Respondent's Inspection Form states, "JOB DESCRIPTION: The entire roof completed as per the codes and specifications...INSPECTION RESULTS: Placement of shingles comply [sic] with the New South Florida Building Codes [sic] and Requirement." Respondent submitted his Inspection Form to the Metropolitan Dade County Building & Zoning Department. Subsequent to Respondent's inspection, Hytek Roofing applied shingles to the flat deck portion of the roof. After applying the shingles on the flat roof, Hytek contacted Dade County building officials to conduct a roof inspection. At all times pertinent to this proceeding, Manuel Jimenez was a Metropolitan Dade County Building & Zoning Department Roofing Inspector. On March 31, 1993, Jimenez conducted an inspection of the House's roof. During his inspection, Inspector Jimenez performed a spot check of the roof on the front part of the House. All of the 20-30 shingles he examined in the selected area did not comply with the six nail Dade County code requirement. In fact, all of them were found to contain only three (3) nails a piece. In addition, some of the nails were above the tar strip. Jimenez also noted that the back of the roof did not appear to be properly laid. The back roof shingles were not laid in accordance with the manufacturer's recommendations nor were they straight. After spot checking the front and back of the roof, Inspector Jimenez noticed the shingles on the flat portion at the rear of the House. Using a level, Inspector Jimenez measured the "pitch" on the flat roof as "one and one- quarter to twelve" instead of the code required minimum of "two and one-half to twelve." He concluded that the roof was in violation of the code because shingles were used on the flat roof which did not have an adequate pitch. On April 1, 1993, Jimenez issued a Summons to Hytek Roofing noting the above violations and requiring corrections including the re-nailing of shingles below the tar strip with six (6) nails per shingle, and the removal of the shingles from the flat roof. The county also required that the back of the roof be replaced. The Metro Dade Building & Zoning Roofing Inspections Checklist requires a shingle inspection to include an inspection of the tie-in to any flat roof. Because the flat deck portion of this roof was in the back, Respondent should have looked at the back of the roof in order to inspect the tie-in to the flat deck. Respondent introduced a number of form documents which reflect language used in the industry by Special Inspectors when certifying the completion of construction work. The standard language on those documents provides that by filling in the designated blanks, the Special Inspector asserts that the work, to the best of his knowledge or belief and professional judgment, is in substantial accordance with the approved plans and the South Florida Building Code. Respondent's Daily Field Inspection report was prepared on his company's letterhead, not a form document and contained Respondent's statement that the entire roof had been completed as per the codes and specifications. Respondent's report did not contain the qualifying language set forth on the forms presented at the hearing. In other words, Respondent did not qualify his statement or state the extent of his investigation leading to that statement. After considering all the evidence, it is concluded that Respondent's inspection was insufficient and that the conclusions set forth in his report were inaccurate. Moreover, at least some of the Code Violations cited by the county should have been detected by a reasonable inspection. Consequently, it is concluded that Respondent failed to utilize due care in the performance of his engineering duties.
Recommendation Based upon the foregoing, it is RECOMMENDED: That the Board of Professional Engineers enter a Final Order finding Alberto Ramirez guilty of violating Section 471.033(1)(g), Florida Statutes, as alleged in the Amended Administrative Complaint. As a penalty for the violation, impose an administrative fine of one thousand ($1,000.00) dollars, issue a reprimand, and place the license of Alberto Ramirez on probation for a period of two (2) years with such reasonable terms as may be imposed by the Board. DONE AND RECOMMENDED this 24th day of July, 1995, in Tallahassee, Leon County, Florida. J. STEPHEN MENTON 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 24th day of July, 1995. APPENDIX TO RECOMMENDED ORDER, CASE NO. 94-4312 Rulings on the proposed findings of fact submitted by the Petitioner: Adopted in substance in findings of fact 1. Adopted in substance in findings of fact 4. Adopted in substance in findings of fact 8. Adopted in substance in findings of fact 5. Rejected as unnecessary. Adopted in substance in findings of fact 5. Adopted in substance in findings of fact 7. Adopted in substance in findings of fact 6. Adopted in substance in findings of fact 11. Adopted in substance in findings of fact 12. Adopted in substance in findings of fact 13. Adopted in substance in findings of fact 14. Adopted in substance in findings of fact 16. Adopted in substance in findings of fact 17. Adopted in substance in findings of fact 18. Adopted in substance in findings of fact 2. Adopted in substance in findings of fact 9. Adopted in substance in findings of fact 18. Rejected as unnecessary. Rejected as unnecessary. Adopted in substance in findings of fact 19. Adopted in substance in findings of fact 21. Adopted in substance in findings of fact 21. Subordinate to findings of fact 25. Adopted in substance in findings of fact 22. Adopted in substance in findings of fact 22. Adopted in substance in findings of fact 23. Adopted in substance in findings of fact 24. Rejected as a summary of testimony rather than a finding of fact. The subject matter is addressed in Findings of Fact 25 and in the Conclusions of Law. Rejected as a summary of testimony rather than a finding of fact. The subject matter is addressed in Findings of Fact 25 and in the Conclusions of Law. Rejected as a summary of testimony rather than a finding of fact. The subject matter is addressed in Findings of Fact 25 and in the Conclusions of Law. Adopted in substance in findings of fact 25. Rulings on the proposed findings of fact submitted by the Respondent: Adopted in substance in findings of fact 1. Rejected as unnecessary. Adopted in substance in findings of fact 2. Adopted in substance in findings of fact 3. Adopted in substance in findings of fact 4 and 5. Adopted in substance in findings of fact 8. Adopted in substance in findings of fact 5. Adopted in substance in findings of fact 10. Adopted in substance in findings of fact 11 and 12. Subordinate to findings of fact 25. Rejected as unnecessary and subordinate to findings of fact 25. Adopted in substance in findings of fact 12. Subordinate to findings of fact 25. Adopted in substance in findings of fact 14. Adopted in substance in findings of fact 15. Adopted in substance in findings of fact 16 and 17. Adopted in substance in findings of fact 18. Subordinate to findings of fact 19. Adopted in substance in findings of fact 20. Adopted in substance in findings of fact 20. Adopted in pertinent part in findings of fact 21. COPIES FURNISHED: Angel Gonzalez Executive Director Dept of Business and Professional Regulation Board of Professional Engineers 1940 North Monroe St, Suite 60 Tallahassee, FL 32399-0792 Lynda L. Goodgame General Counsel Dept of Business and Professional Regulation 1940 North Monroe Street, Suite 60 Tallahassee, FL 32399-0792 Charles F. Tunnicliff Chief Attorney Dept of Business and Professional Regulation 1940 North Monroe St, Suite 60 Tallahassee, FL 32399-0792 Reydel (Sonny) Santos, Esq. Inter-American Law Center 10753 SW 104th Street Miami, FL 33176-8842
The Issue The issues are based upon an administrative complaint brought by the State of Florida, Department of Professional Regulation against Phillip E. Sheffield, Respondent. In particular, Respondent is said to have violated the building code of the City of Jacksonville, Florida by failing to obtain a building permit before commencing construction work related to a roofing project and building the roof to a slope that was contrary to that local building code. For violations of the City of Jacksonville building code, Respondent is said to have violated Section 489.129(1)(d), Florida Statutes, by willful or deliberate violation and disregard for the applicable building code of the municipality. Finally, Respondent is said to have violated Section 489.113(3), Florida Statutes by failing to subcontract roofing work.
Findings Of Fact At all times here relevant Respondent was licensed as a roofing contractor and qualifying agent and owner of Handyman Service Company, Pinellas Park, Florida. In November or December 1982, representatives of Sandalwood Club Association contacted Richard Fabrizi, who was acting as sales agent for Handyman Service Company, about some repairs desired at their condominiums. Fabrizi advised Respondent and several meetings were held with Sandalwood representatives after which contract proposals for work desired by Sandalwood were presented by Respondent. It became apparent that complete reroofing of the Sandalwood condominiums was needed; however, the association did not have sufficient funds at that time for such a project. As a result of the negotiations a repair contract was entered into between Handyman and Sandalwood Club whereby Handyman contracted to perform certain work for $16,000 (Exhibit 1). At about the time this contract was entered into Pinellas Park became incorporated and established its own building department. Respondent was qualified to perform roofing contracting in Clearwater, in whose jurisdiction Sandalwood was placed before Pinellas Park, but he had not qualified to contract in Pinellas Park. When this was realized, Respondent engaged the services of Edgar Plumtree, a licensed contractor, to pull permits and supervise the roofing at Sandalwood. The permit for this work (Exhibit 2) was signed by Joseph A. Saturno, contractor, but no evidence was presented regarding Saturno or how his name came to appear on Exhibit 2. Expert testimony was presented that the work proposed to be performed in Exhibit 1 constituted much more than repair work; however, Respondent's witness's testimony that the contract was intended by all parties to be a temporary repair, guaranteed for three years, was unrebutted. Expert testimony that the use of 90# mineral-coated roofing material in valleys did not comply with the Southern Standard Building Codes, which has been made applicable to Pinellas Park, was modified on cross-examination by testimony that such material could be used for repairs if approved by the building inspector. The evidence was unrebutted that the building inspector approved the use of the 90# roofing in the valleys. The expert witness further found violation of codes when a coating material was placed over aggregate surface on a flat roof or aggregate was reused without cleaning; however, on cross-examination this witness acknowledged that rerocking was not a code violation if sold as a repair in lieu of new roof. He did not consider the scope of the work shown in Exhibit 1 to be compatible with a minor repair, despite the intent of the parties to so treat this work. The work on the Sandalwood project was completed in March 1983. Sandalwood was in the process of issuing a contract to replace the shingles on their sloping roofs and in May 1983 Respondent met with Sandalwood Condominium Association as one of the bidders was unhappy with the roofing repairs done by Handyman. Due to brittle shingles the tie-ins were unsatisfactory. An appointment was set up with representatives of the Pinellas Park Building Inspector, Sandalwood representatives, and Handyman representatives. Handyman was also bidding on the shingle replacement contract. On May 26, 1983, this meeting was held including the successful bidder (Baker) on the shingle roof replacement contract. The building inspector, Respondent, Baker, and Sandalwood representatives went on the roofs. The building inspector suggested Baker do the tie-ins from the work done by Handyman, for which the latter agreed to pay, but Baker declined. Thereafter, the flashing between the shingle roofs and the flat roofs was installed by Handyman and the shingles by Baker. Exhibit 6 indicates the shingles do not properly cover the flashing. Respondent's testimony that the work performed by Handyman was exactly what Sandalwood requested them to perform was not rebutted.
Recommendation It is RECOMMENDED that Franklin A. Marciano be issued a letter of reprimand for completing a roofing repair contract in a municipality in which he was not licensed. DONE AND ENTERED this 19th day of October 1984 at Tallahassee, Florida. K. N. AYERS 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 19th day of October 1984. COPIES FURNISHED: Charles Tunnicliff, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Frank A. Marciano 11327 43rd Street, North Clearwater, Florida 33520 Fred M. Roche, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 James Linnan, Executive Director Board of Construction Industry Licensing Board Department of Professional Regulation Post Office Box 2 Jacksonville, Florida 32202
The Issue The issues in Case No. 07-4376PL are whether Respondent violated Subsections 489.129(1)(i), 489.119(2), 489.126(2)(a), and 489.129(1)(j), (m), and (o), Florida Statutes (2004),1 and, if so, what discipline should be imposed. The issues in Case No. 07-4377PL are whether Respondent violated Subsections 489.1425(1), and 489.129(1)(i) and (o), Florida Statutes, and, if so, what discipline should be imposed.
Findings Of Fact Petitioner is the state agency charged with regulating the practice of contracting pursuant to Section 20.165 and Chapters 455 and 489, Florida Statutes. Mr. Roach is, and was at all times material to this action, a certified roofing contractor in the State of Florida having been issued License No. CCC1326005. Mr. Roach's Certified Roofing Contractor License No. CCC1326005 is current and active. Mr. Roach's current addresses of record are Post Office Box 345, Orange Springs, Florida, and 22204 U.S. Highway 301, Hawthorne, Florida. At all times material to this action, Mr. Roach was a licensed qualifier for All Florida Roofing Contractors, Inc. (All Florida). There is evidence in the record sufficient to establish that Mr. Roach has been previously disciplined for a violation under Chapter 489, Florida Statutes. Notably, Mr. Roach has been previously disciplined for, among other things, violations of Subsections 489.129(1)(m) and (o), Florida Statutes. Case No. 07-4376PL Mr. Roach failed to obtain a Certificate of Authority for All Florida, as required by Subsection 489.119(2), Florida Statutes. On or about August 23, 2004, Mr. Pang contracted with Mr. Roach, to remove and replace the hurricane-damaged roof of his hotel property located at 1620 West Vine Street, Kissimmee, Florida. The contract price for the aforementioned project was $40,000.00. Mr. Pang made an initial payment of $2,250.00 on August 22, 2004, and another payment of $20,000.00 on August 23, 2004. As part of the contract, All Florida was required to pull the building permits for the project, and Mr. Roach failed to do this. Mr. Roach commenced work on the project on or about September 7, 2004. On or about late September 2004, he ceased work on the project, and the project remained unfinished. Mr. Pang paid All Florida an additional $10,000.00 on September 16, 2004. On October 1, 2004, the City of Kissimmee issued a Notice of Violation against Mr. Pang for failure to have a building permit for the work that had been performed by Mr. Roach on the roof. Mr. Roach scheduled repairs on the project, but did not return to the project. Mr. Roach did not have any inspections performed on the roof. Later, another contractor hired by Mr. Pang finished the roofing project at a cost of an additional $32,975.00. Case No. 07-4377PL On or about September 15, 2004, Ms. Perez contracted with Mr. Roach to repair roof damage to her residence at 1502 Golden Poppy Court, Orlando, Florida. The contract price for the aforementioned project was $7,268.32, of which Mr. Roach was paid $3,634.16 on September 18, 2004. The contract entered into between Ms. Perez and Mr. Roach failed to inform the homeowner of the Construction Industry Recovery Fund. On or about October 27, 2004, the Orange County Building Department issued Mr. Roach a permit for the aforementioned project (Permit No. T04018050). Mr. Roach did not have any inspections performed on the roof. On September 25, 2004, Ms. Perez paid $3,614.16 to All Florida, which was the remaining amount of the contract. Another contractor was hired by Ms Perez to correct deficient aspects of Mr. Roach's work on the roof at a cost of $900.00.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered whose outcome is the following: That in Case No. 07-4376PL Respondent violated Subsections 489.129(1)(i), (j), (m) and (o), Florida Statutes; Dismiss Count II of the Administrative Complaint in Case No. 07-4376PL; In Case No. 07-4376PL, imposing an administrative fine of $1,000.00 for the violation of Subsection 489.129(1)(i), Florida Statutes; imposing an administrative fine of $5,000.00 for the violation of Subsection 489.129(1)(j), Florida Statutes; imposing an administrative fine of $2,500 for the violation of Subsection 489.129(1)(o), Florida Statutes; no administrative fine is recommended for the violation of 489.129(1)(m), Florida Statutes, because the violation is included in the violations of Subsections 489.129(1)(j) and (o), Florida Statutes; That in Case No. 07-4377PL, Respondent violated Subsections 489.129(1)(i) and (o), Florida Statutes; In Case No. 07-4377PL, imposing an administrative fine of $1,000 for the violation of Subsection 489.129(1)(i), Florida Statutes; imposing an administrative fine of $2,500 for the violation of Subsection 489.129(1)(o), Florida Statutes; Requiring Respondent to make Restitution to Mr. and Mrs. Pang in the amount of $25,000; Requiring Respondent to make Restitution to Ms. Perez in the amount of $900; and Revoking Respondent's contractor license. DONE AND ENTERED this 31st day of March, 2008, in Tallahassee, Leon County, Florida. S SUSAN B. HARRELL 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 31st day of March, 2008.
Findings Of Fact Based upon my observation of the witnesses and their demeanor while testifying, and the documentary evidence received, the following relevant facts are found. Respondent is a registered roofing contractor who has been issued License No. RC 0023750. During early 1981, Aleta Swygard and Thomas Garner contracted to purchase a residence located at 4814 SW 20th Street, Ft. Lauderdale, Florida. Pursuant to the terms of that purchase agreement, and the requirements of the FHA financing, it was necessary to obtain a report from a licensed roofer that the roof was in satisfactory condition. At the time the contract for purchase was executed, the roof was leaking and the ultimate condition of the roof was unknown by the purchaser. The purchaser's broker, Wise Realty, incident to the real estate transaction, retained Respondent to perform all necessary roof repairs on the subject residence and to file an FHA inspection report in accordance with the requirements of FDA. Respondent was instructed by Amerigo DiPietro, real estate broker, to only do what was facially necessary to allow the transaction to close. Respondent therefore prepared the report to show that the roof was in satisfactory condition. In this regard, Messenger DiPietro did not testify at the hearing herein. Respondent admits that the roof was in unsatisfactory condition and although he advised Wise Realty, through broker DiPietro, of the condition, he completed the FHA report indicating that the roof was in satisfactory condition. (TR 8, 45 and 46) It is undisputed that the Respondent charged, and was paid, approximately $425 to perform the repairs on the subject roof in question. It is also undisputed that the Respondent did not obtain a building permit although one was required) to perform work where the repairs exceed the sum of $300. (Testimony of Respondent and Susan Marchitello, TR 13) The purchasers relied upon the FHA inspection report prepared by Respondent to proceed to closing on that property. After closing, the purchaser discovered that the roof continued to leak and was in need of substantial repairs. In this regard, the purchasers expended approximately $2,200 to repair the roof in satisfactory condition. Respondent failed to honor his written guarantee issued to the purchasers shortly after his work was performed although he received notice that repairs were necessary. In mitigation, the Respondent points out that he was led down the "primrose path" by broker DiPietro and that this was the first disciplinary proceeding he had been involved in in his approximately 13 years of contracting. Further, Respondent avers to the fact that he had previously performed contracting repairs for broker DiPietro without any problems.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that the Respondent be ordered to pay an administrative fine of $500 and that his registered roofing contractor's license (No. RC 0023750) be placed on probation for a period of one (1) year. RECOMMENDED this 18th day of April, 1983, in Tallahassee, Florida. JAMES E. BRADWELL, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 18th day of April, 1983.
Findings Of Fact At all times relevant, the Respondent was licensed by the Construction Industry Licensing Board as follows: License No(s): RC 0021957 Licensed as: Registered roofing contractor Address of record is in: New Port Richey, Florida A certain contracting job was undertaken as follows: Customer: Stella Domas Approximate contract date: 6-85 Approximate price: $600 Job location: New Port Richey, Florida Job generally consisted of: Repair roof of Customer's house Said job was undertaken by the contracting business Respondent was associated with and responsible for in his capacity as a licensee. Respondent proceeded without a timely permit having been issued, violating local law, either deliberately or through improper supervision, in violation of 489.129(1)(d), (m), (j) 489.119; and 489.105(4), Florida Statutes. Respondent proceeded without timely obtaining all required inspections, violating local law, either deliberately or through improper supervision, in violation of 489.129(1)(d), (m), (j); 489.119; 489.105(4), Florida Statutes. Respondent gave a guarantee on said job to the Customer, and thereafter failed to reasonably honor said guarantee, in violation of 489.129(1)(m), (j); 489.119; 489.105(4), Florida Statutes. Respondent performed said work in a substantially deficient manner, therefore, violating 489.129(1)(m). Respondent previously has been disciplined by the State Construction Board. STIPULATED DISPOSITION Based on the Stipulated Findings Of Fact and Conclusions Of Law, the parties agree to the following disposition of the Amended Administrative Complaint: The Respondent shall pay a $1500 fine, payable within 60 days from entry of a final order approving this stipulated disposition; and The Respondent's registered roofing contractor license number RC 0021957 shall be suspended for 60 days, beginning 60 days from the entry of a final order approving this stipulated disposition.
Recommendation It is recommended that the Construction Industry Licensing Board enter a final order approving and incorporating the settlement stipulation between the parties. RECOMMENDED 28th day of July, 1988, in Tallahassee, Florida. J. LAWRENCE JOHNSTON 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 28th day of July, 1988. COPIES FURNISHED: Jack M. Larkin, Esquire 806 Jackson Street Tampa, Florida 33602 Lee Ellen Acevedo, Esquire 7716 Massachusetts Avenue New Port Richey, Florida 34653 Fred Seely, Executive Director Construction Industry Licensing Board Department of Professional Regulation 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
Findings Of Fact At all times relevant to this proceeding, Respondent held a registered roofing contractor's license Number RC 0030261 issued by Petitioner and did business under the name of Jim's Painting and Roof Repairs in Cocoa Beach, Florida. On or about May 22, 1984, Rick Callahan, d/b/a Rick Callahan Roofing (Callahan) contracted with Dan Risken to reroof his residence located at 1765 Sandbar Drive, Merritt Island, Florida. On May 23, 1984, Respondent obtained building permit No. 16543-C from the Brevard County Building Department for reroofing the Risken residence at 1765 Sandbar Drive, Merritt Island, Florida. Callahan performed the reroofing work on the Risken residence located at 1765 Sandbar Drive, Merritt Island, Florida, without any supervision by Respondent and received payments under the contract in the amount of $2,000.00, $1,000.00, and $735.00 on May 21, 25, and 26, 1984, respectively. No moneys were paid to Respondent by Dan Risken under the contract with Callahan for reroofing his residence. On or about September 10, 1984, Respondent contracted with A1 Notary for the construction of a roof on an office building located at 375 South Courtney Parkway, Merritt Island, Florida, for a contract price of approximately $2,500.00 and on September 10, 1984, obtained a permit No. 16867-C from the Brevard County Building Department for the roofing work at 375 South Courtney Parkway, Merritt Island, Florida. Respondent subcontracted the roofing work on the A1 Notary building at 375 South Courtney Parkway in Merritt Island to Callahan and on September 28, 1984, Callahan was paid the contract price of $2,500.00 by the A. C. Notary Company for the roofing work. At all times pertinent to this proceeding, Rick Callahan did not have a certificate of competency to do roofing work and was not qualified in Brevard County to obtain a permit to do roofing work himself. Additionally, during the period of time pertinent to this proceeding, Rick Callahan was not licensed by the Construction Industry Licensing Board (Board) as a roofing contractor. Subsequent to the time pertinent to this proceeding, Rick Callahan was issued a certificate of competency by Brevard County and was licensed as a roofing contractor by the Board. Respondent's only involvement in the Risken job was to obtain a permit to allow Callahan to do the roofing work. Although Respondent contracted with Notary for his roofing work, the more credible evidence shows that the only reason for Respondent's involvement with the Notary job was to obtain a permit to allow Callahan to do the roofing work. On or about November 28, 1984, Robert J. Connors, d/b/a Connors' Home Repair, Painting and Roofing, Inc. (Connors) contracted with Richard McLain to reroof his residence at 1080 South Orlando Avenue, Cocoa Beach, Florida, for a contract price of $2,535.10. On November 30, 1984, Respondent obtained building permit No. B7547 from the City of Cocoa Beach Building Department for reroofing the residence at 1080 South Orlando Avenue, Cocoa Beach. Connors performed the reroofing work at the McLain residence and received payments for work performed from Richard McLain in the amounts of $1,535.00 and 01,035.00 on November 29, 1984, and December 6, 1984, respectively. On or about December 31, 1984, Connors contracted with Tom Eddie to reroof his residence at 118 LaRiviere, Cocoa Beach, Florida, for a contract price of $3,795 74. On January 8, 1985, Respondent obtained building permit No. B-7592 from the City of Cocoa Beach Building Department for the reroofing work to be performed on the Eddie residence at 118 LaRiviere, Cocoa Beach, Florida. Connors performed the reroofing work on the Eddie residence. Although Connors testified that Respondent supervised the McLain and Eddie jobs, the more credible evidence is that he was not involved in the supervision of those jobs but was only involved in obtaining the permits for Connors and Connors reciprocated by helping Respondent on some of his roofing jobs. At no time relevant to this proceeding did Connors have a certificate of competency, nor was he qualified in Brevard County to obtain a permit to do roofing work himself. Additionally, at no time relevant to this proceeding was Connors licensed by the Board as a roofing contractor. On January 7, 1985, Art Arnone contracted with Jack Poe to perform roofing work at the Brentwood Apartments, located at 351 Woodland Avenue, Cocoa Beach, Florida, for a contract price of $6,575.00. Since Art Arnone did not have a State of Florida roofing contractor's license or a certificate of competency in Brevard County and was not qualified in Brevard County to obtain a permit to do roofing work, Respondent asked Art Arnone to get Jack Poe to sign a contract with Respondent instead of Art Arnone for the roofing work on the Brentwood Apartments. On January 4, 1985, Respondent contracted with Jack Poe for the roofing work on the Brentwood Apartments for a contract price of $6,500.00. On the request of Art Arnone, Jack Poe listed Art Arnone as the subcontractor on the job. On January 7, 1985, Respondent obtained a permit from the city of Cocoa Beach Building Department to do the roofing work on the Brentwood Apartments. Art Arnone performed the roofing work on the Brentwood Apartments and there is sufficient evidence that Respondent did supervise Art Arnone while performing this work. Jack Poe arranged for payment under the contract in two installments of $3,280.00 and $3,215.00. Although the first cashier's check of $3,280.00 was made payable to Art Arnone and dated January 4, 1985, it was not given to Art Arnone until January 11 or 12, 1985. Respondent not require the cashier's check to be reissued in his name because Art Arnone was to use the proceeds to pay for supplies used on the job. The second check of $3,215.00 was made payable to Respondent and delivered on January 16, 985. At all times pertinent to this proceeding, Respondent was aware that Rick Callahan, Robert J. Connors, and Art Arnone did not possess certificates of competency from Brevard County or possess roofing contractors' licenses issued by the Board and, therefore, were not qualified to obtain permits to perform roofing work in Brevard County, Florida. By ordinance, the City of Cocoa Beach requires that a person meet all the local requirements for certificate of competency and licensure by the state in order to be qualified to obtain a building permit. By ordinance, Brevard County requires that a person have a certificate of competency from Brevard County, unless certified by the state, and be licensed by the Board in order to be qualified to obtain a permit in Brevard County. Rick Callahan, Robert J. Connors, and Art Arnone were not certified roofing contractors. Although Respondent may have used Rick Callahan, Robert J. Connors, and Art Arnone on a job on occasion, they were not employees of Respondent. There were no complaints about the quality of the work performed by Rick Callahan, Robert J. Connors, or Art Arnone. In fact, Jack Poe was complimentary of the work performed by Art Arnone. Respondent was disciplined by the Board on October 29, 1984, for an earlier violation of Section 489.129(1)(e), Florida Statutes, in October 1983.
Recommendation Based on the findings of fact and conclusions of law recited herein, it is recommended that the Construction Industry Licensing Board enter a Final Order finding Respondent guilty of violating Section 489.129(1)(e), Florida Statutes, and for such violation it is recommended that the Board suspend Respondent's contracting license for a period of three (3) months. It is further recommended that all other charges be dismissed.. Respectfully submitted and entered this 4th day of April, 1986, in Tallahassee, Leon County, Florida. WILLIAM R. CAVE, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 4th day of April, 1986. COPIES FURNISHED: W. Douglas Beason, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Mr. James L. Muller 1520 Bayshore Drive Cocoa Beach, Florida 32931 Mr. Fred L. Seely Executive Director Department of Professional Regulation Construction Industry Licensing Board Suite 504 111 East Coast Line Drive Jacksonville, Florida 32202 Fred Roche, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 ================================================================= AGENCY FINAL ORDER ================================================================= STATE OF FLORIDA DEPARTMENT OF PROFESSIONAL REGULATION CONSTRUCTION INDUSTRY LICENSING BOARD DEPARTMENT OF PROFESSIONAL REGULATION, Petitioner, CASE no. 52999 DOAH CASE NO. 85-2195 JAMES L. MULLER, License No. RC 0030261 Respondent. /
Findings Of Fact Respondent has been continuously, actively licensed by the Construction Industry Licensing Board since May 1983, having been issued license number RE 0043386. Since then, he has been the qualifying agent for Bradley Roofing Co. Respondent's business address of record is 3067 N.W. 54th Street, Miami, Florida, 33142. Respondent's disciplinary record (P-14) refers to imposition of discipline by fine on two prior occasions and temporary suspension for failure to pay one fine, but only one of these disciplines is documented in the attachments. That discipline was imposed for pulling a permit for an unlicensed contractor and not qualifying that contractor's name. D.O.A.H. Case No. 86-4427 (Boca Entrada) On or about October 11, 1982, Respondent entered into a contract to perform a complete reroofing job for $17,700. The invoice/contract presented at hearing as P-1 shows the job location as "10110 West Boca Entrada Boulevard, Building No. 101 of Plat 1 of Boca Entrada Subdivision, Boca Raton, Florida." This building was referred to as "Boca Entrada One" by several witnesses. Another typewritten job location on the invoice/contract has been crossed out. This exhibit indicates the job was sold to "Clinton Construction Co.," but this line has also been altered. Neither alteration was initialed by anyone. The contract was executed on behalf of Bradley Roofing Co. by Robert Bradley, the Respondent herein. One signature on behalf of the owner is illegible. The other signature reads, "E. J. Pollock, agent." Respondent testified he made out the contract to "George Pollock," who is apparently one and the same as E. J. Pollock." Mrs. Miller, a longtime resident of the Boca Entrada premises which was previously a rental unit and is now organized as a condominium, is also Treasurer of the current condominium association. She testified that Pollock did not work for either Boca Entrada Enterprises nor Clinton Construction Co. but that he was project manager for either "Boca Entrada Two" or "Boca Entrada Two" and "Boca Entrada Three" (two buildings at the same location which were built after Boca Entrada One). Respondent conceded that he contracted to do a new roof on two of the three buildings located at the address on the contract and to reroof another building at that address and that he completed the work contracted-for. Respondent failed to obtain a permit to reroof any of the buildings at the address on the contract. Respondent relied first upon George Pollock and then upon someone named George Lopez, both of whom he thought were associated with Clinton Construction, to obtain a permit for roofing the other two buildings because he felt that he, Robert Bradley, and Bradley Roofing Co. were in the position of a subcontractor to Clinton Construction Co. for the two buildings being constructed from the ground up. No other person or firm obtained a permit for the building specifically named on the contract. The three Boca Entrada buildings are located in Palm Beach County, Florida. Although no Palm Beach County ordinance was introduced to this effect, George Froehlich, an investigator for the Palm Beach County Construction Industry Licensing Board, testified that Palm Beach County requires that all roofing contractors working within the county limits be either locally certified or state certified. Respondent is not a state certified roofing contractor. See Section 489.105(6) and (7), Florida Statutes. Rather, he is a state registered roofing contractor. See Section 489.105(3)(e), Florida Statutes. The licensing package (P-14) shows he was not even a registered roofing contractor until May 1983, some seven months after contracting at Boca Entrada. He is not charged with operating without a state license, but it is clear that Respondent was not at any time relevant to the administrative complaint certified by either the State of Florida or the County of Palm Beach, nor was he even registered (licensed) in Florida. The Standard Building Code is in force in Palm Beach County. Section thereof requires that a permit be obtained before commencing the type of work Respondent did at Boca Entrada. It provides: Any individual, partnership, firm, corporation or other business organization that is the owner or lessee of property, who desires that work as described below be per- formed on said owned or leased property, shall make provisions for an applicant, properly qualified under the ordinances regulating the certification and licensing of contractors, owner-builder and lessee-builder, to file an application for and obtain the required permit from the building official prior to commencing work for the following: 2. Install, replace or resurface roofing, or make repairs. Had Respondent been a state-licensed contractor and qualifier for his company, it would have clearly been his responsibility to assure himself that all necessary permits were obtained in a timely fashion, but as it was, Respondent was simply operating outside the law by performing contracting work on the Boca Entrada job without being licensed and without obtaining or determining whether anyone else had obtained a permit for said job. Respondent gave a 10 year warranty on his work in 1982 and despite some haphazard and unsupported hearsay testimony of his failure to respond to individual tenants calls and condominium association letters, it was established that he honored his warranty by fixing or having someone fix leaks on one occasion in 1985 and one occasion in 1986. D.O.A.H. Case No. 86-4428 (Polsky Home) On or about June 11, 1985, Respondent entered into a contract with Edward Polsky to reroof Polsky's home at 10070 East Calusa Club Drive, Coral Gables, Dade County, Florida. Respondent failed to obtain a county permit to reroof the above residence before beginning work on Polsky's home. No other person or firm obtained a permit for the Polsky job during any period relevant to the administrative complaint. Respondent did obtain a county permit on February 19, 1987, long after the original reroofing project had been completed. Due to contrary testimony by others and the date of this permit in relation to the administrative complaint and hearing in this cause, Respondent's excuse that his obtaining this permit was done to replace a former lost permit for the Polsky job is rejected as absolutely without credibility. The South Florida Building Code is in force in Dade County. Section thereof requires that a permit must be obtained before commencing the type of work Respondent engaged in at the Polsky home. It provides: Permits, to be issued by the building official, shall be required for the following operations: k. The application, construction or repair on any roof covering as provided in Chapter 34, exceeding three hundred dollars ($300.00) in value of labor and materials, as determined by the building official, or for work exceeding in roofing squares in extent. It was Respondent's responsibility, as a licensed contractor and as qualifier for his company, to assure himself that all permits were obtained in a timely fashion, but Respondent performed contracting work on the Polsky job without obtaining or determining whether anyone else had obtained a permit for said job. Respondent issued a ten year warranty on his job for the Polskys. Although Respondent honored his warranty to some extent by appearing to do some repairs in response to complaints by Mrs. Polsky he did not coordinate his work to her schedule as promised. His explanation is that he could not come out to do repair work when it was raining. Although Respondent proved that he provides his home telephone number on his contract papers so that customers can reach him, it is unrefuted that Mrs. Polsky knew both numbers and called Respondent at either home or office numbers daily over a period of six months to report the problems with her roof, including persistent leaks, which she believed to be under warranty. No adequate response was made by Respondent to her requests. Charles H. Walton was accepted to give expert testimony in roofing contracting. He testified that the work Respondent did on the Polsky roof involved putting a whole new roof over the old roof. This method is not contrary to the applicable codes but it does not meet the terms of the contact which Respondent entered into with the Polskys. That contract called for the old roof to be torn off and done new. He opined that Respondent's work on the Polsky roof constituted gross negligence for the foregoing reason, because there was no insulation at all in the roof as required by the contract, because proper precautions were not taken with the details of flashings, (especially at change of elevations), and because of insufficient precautions with installation of the drain system. As mitigation, Walton noted that Respondent actually upgraded the Polsky contract specifications by installing 3/4-inch urethane which is better than the fiberboard rigid installation called for by the contract. The suggestion that the ornamental wood of the house prevented the flashings being made secure is an insufficient excuse for the poor quality of work done.
Recommendation Upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED: That Petitioner enter a final order in its case 0066199 (Boca Entrada) dismissing that cause for lack of jurisdiction, and a final order in its case 71433 (Polsky Home) finding Respondent guilty of one violation of Section 489.129(1)(d) and fining him $1,000.00 therefor, and finding Respondent guilty of misconduct/gross negligence in the practice of contracting and suspending his license for one year therefor. DONE AND ORDERED this 13th day of July 1987, in Tallahassee, Florida. ELLA JANE P. DAVIS, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 13th day of July 1987.
