Findings Of Fact At all times material hereto, the Respondent was licensed as a certified building contractor, having been issued license number CB C012964 by the State of Florida. At all times material hereto, the Respondent was licensed as an individual only. On or about April 14, 1982, Cedar Homes of Pinellas, Inc., entered into a contract with Mary Fedico to enclose the carport on her home, which was located at 2085 Victory Avenue, Largo, Florida. The contract price was $5,000.00. Mike Fredricks acted as the saleman for this contract on behalf of Cedar Homes of Pinellas, Inc. At all times material hereto, Cedar Homes of Pinellas, Inc., was owned by Kenneth Larrow. The only employees of this corporation were Kenneth Larrow and his son. Cedar Homes of Pinellas, Inc., was formed in January of 1982 for the purpose of performing room additions and other types of construction. On April 14, 1982, the sole officer of Cedar Homes of Pinellas, Inc., was Kenneth Larrow, who also served as a director. An attorney John L. Riley, was the registered agent. At all times pertinent hereto, Kenneth Larrow was not licensed to engage in the business of contracting in the State of Florida. On or about April 16, 1982, Kenneth Larrow and his salesman, Mike Fredricks, went to the City of Largo Building Department to obtain a construction permit for the enclosure of Mary Fedico's carport. Neither of these persons wash qualified, or licensed, to engage in the business of contracting in the City of Largo. Therefore, the Largo Building Department refused to issue a permit for this construction. When Kenneth Larrow and Mike Fredricks were unable to obtain a permit for the construction of the addition to Mary Fedico's home, they informed the Largo Building Department that the qualifier for Cedar Homes of Pinellas, Inc., was Barry L. Critoph, the Respondent. The Largo Building Department informed Mr. Larrow and Mr. Fredricks that the Respondent had to sign the permit application in order for a permit to be issued for the construction to be performed on Mary Fedico's home. On or about April 16, 1982, the Respondent applied for and obtained a construction permit for the enclosure of Mary Fedico's carport. This permit was issued to Cedar Homes of Pinellas, Inc., with the Respondent as the qualifying contractor. At all times relevant hereto, the Respondent did not qualify Cedar Homes of Pinellas, Inc., with the Construction Industry Licensing Board. At all pertinent times, the Respondent did not have in his possession a certificate issued by the Construction Industry Licensing Board with the notation "Cedar Homes of Pinellas Inc." thereon. Moreover, the Respondent admitted he was not positive that he had properly qualified Cedar Homes of Pinellas Inc., when he obtained the permit for the enclosure of Mary Fedico's carport. On or about May 5, 1982, Cedar Homes of Pinellas, Inc., entered into a second contract with Mary Fedico to finish the interior of the carport which was to be enclosed by Cedar Homes of Pinellas, Inc., pursuant to the prior contract, for a price of $710. Kenneth Larrow began to perform the work required under the terms of the two contracts. Mary Fedico never saw the Respondent at the project site. Mr. Larrow hired all subcontractors and was responsible for paying them. He was also responsible for supervision of the construction of the carport enclosure. The Respondent did not know that there was a second contract for interior work in Mary Fedico's carport enclosure, and the Respondent performed no work on the project. He did drive his car by the site three times, but he never entered onto the project, and he simply viewed the construction being performed from the street. The Respondent had no knowledge as to who the subcontractors were on the Fedico project, and he had no responsibility for hiring them. He had no knowledge of the money that was being obtained from this project, and he did not know whether or not the subcontractors were being paid. At a time uncertain, construction of the carport enclosure addition to the Fedico home began to slow down. When Mary Fedico began to receive notices from subcontractors that they were not being paid, she contacted Kenneth Larrow about problems with the construction. However, when Mr. Larrow was unable to satisfactorily respond to Mary Fedico's questions regarding the work, she and her son-in-law took over the project, completed it, and paid all the subcontractors. The cost of completion was between $2,000 and $2,500 more than the contract price had been. As a result of the Fedico contracts noted above, Kenneth Larrow was charged with using the designation of "contractor" without a license, in two counts. Kenneth Larrow plead nolo contendere to these charges, and he was sentenced to pay a fine of $250 plus court costs. Mary Fedico first became aware that the Respondent had some involvement with the construction of the addition to her home when she was subpoenaed to appear at this court proceeding. Prior thereto, she had not been notified by either the Respondent or Mr. Larrow, that the Respondent had any connection with her carport project. The Respondent's involvement with Cedar Homes of Pinellas Inc., was limited to obtaining permits and "supervision". As compensation therefor, the Respondent was to received two percent of the gross sales of the company. He was supposed to check jobs and verify construction, but this supervision was to consist of checking the projects contracted for by Cedar Homes of Pinellas Inc., at his own convenience, to determine if these projects were "okay". The Respondent was not connected with the financial operation of Cedar Homes of Pinellas Inc., he had no financial control over the operations of the corporation, and he could not sign checks. All subcontractors were hired and paid by Kenneth Larrow. Mr. Larrow and his salesmen actually entered into the contracts, and the Respondent had no involvement with the contracts except to determine if work contracted for was structurally sound. Kenneth Larrow actually supervised all of the construction projects of Cedar Homes of Pinellas Inc., on a daily basis, and the Respondent was not aware of all the projects entered into by the corporation. Kenneth Larrow eventually made restitution to Mary Fedico in the amount of $1,250 for the problems which occurred in connection with the carport enclosure work on her home.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that license number CB C012964 held by the Respondent, Barry L. Critoph, be suspended for two years. THIS RECOMMENDED ORDER entered this 2nd day of December, 1983. WILLIAM B. THOMAS, 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 2nd day of December, 1983. COPIES FURNISHED: Stephanie A. Daniel, Esquire 130 North Monroe Street Tallahassee, Florida 32301 John J. Fogarty, Esquire 327 South Garden Avenue Clearwater, Florida 33517 Fred Roche, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Mr. J. K. Linnan Executive Director Florida Construction Industry Licensing Board Post Office Box 2 Jacksonville, Florida 32201
The Issue Whether the Respondent's license as a registered general contractor should be disciplined?
Findings Of Fact The Respondent is a registered general contractor in the State of Florida. His license is number RG 0001015. At all times material to this case, the Respondent has held license number RG 0001015. The Respondent has been in the construction business for 51 to 52 years. During the Fall of 1985, Mr. Edward J. Ashley discussed a construction project at Mr. and Mrs. Ashley's residence with the Respondent. The Ashley's residence is located at 2353 Hampshire Way, Tallahassee, Florida. The Ashleys and the Respondent, on behalf of Big Bend Builders Corp., Inc., agreed on the construction work to be performed and the price to be paid for the work. The agreement was memorialized on October 7, 1985, (hereinafter referred to as the "Proposal"), by the Respondent and presented to the Ashleys. Pursuant to the agreement between the Ashleys and the Respondent, Big Bend Builders Corp., Inc., was to construct a room addition to be used as a porch in the back of the existing residence, extend a master bedroom and bathroom, replace the tile in the bathroom, remove a partition between the kitchen and the living room and replace the existing roof with fiberglass shingles with a 20-year warranty. The Ashleys agreed to pay the Respondent's corporation $28,300.00 in consideration of the work to be performed. The Proposal presented to the Ashleys by the Respondent was never signed by the Ashleys but they did agree verbally to the work to be performed. The Ashleys and the Respondent agreed verbally that the construction price would be paid in two installments. One installment was to be made when half the construction was completed and the other half was to be paid when the construction was completed. The Ashleys made the first payment on December 5, 1985. The payment was for $14,000.00. Although the project was not completed, the Ashley's made a partial payment of $6,000.00 on January 10, 1986. The second payment was made earlier than agreed upon at the request of the Respondent. The Respondent told the Ashleys that the payment was needed so that the project, which was already late, could be completed. The Ashleys and the Respondent agreed verbally that the construction would be completed by December 15, 1985. Construction began at the Ashleys on November 14, 1985. On November 22, 1985, the concrete slab for the addition to the Ashley's home was poured in the morning. That afternoon a hurricane struck and rain associated with the hurricane washed away the top layer of concrete. The loss of the top layer of concrete caused the slab to be rough and uneven. It was especially unsightly in the area where the new room was being added as a porch. The Ashleys planned to leave this area uncovered. When they complained to the Respondent he told them not to worry, that he would take care of it. It was not repaired, however. The slab was also uneven in the bathroom and approximately 1 and 1/2 inches higher than the existing slab in the master bedroom. These problems were also not corrected. The area where the new slab joined the existing slab in the master bedroom was ground down but a bump still remains. The trusses of the addition to the residence were higher than the existing trusses. Although some of the problems associated with this problem were corrected, there remains a bump on the roof of the addition. The wall between the bathroom and the master bedroom did not match the existing wall. This problem was not corrected and is still visible. The Respondent filed an application for a building permit with the City of Tallahassee on November 12, 1985. The permit was issued on November 13, 1985. The Respondent was required to arrange slab, framing, and insulation inspections and a final inspection of the construction at the Ashley's residence. The Respondent had the slab inspection completed on November 19, 1985. The framing inspection was conducted on December 11, 1985, by Mr. Rackley. The construction did not pass this inspection because there was no "header" over one door and the ceiling joists were not adequately attached. It was the Respondent's responsibility to correct the problems found as a result of the framing inspection before proceeding with construction. The fact that the construction failed the framing inspection was noted on the copy of the building permit which is displayed at the construction site. Ms. Ashley was the only person present during the inspection other than the inspector. On December 17, 1985, Mr. Rackley saw the Respondent at a party and mentioned the door header and the failure of the residence to pass the framing inspection. The ceiling joists were not mentioned. At the time the framing inspection was completed, the construction was 40 to 50 percent complete. By letter dated February 12, 1986, Mr. Rackley asked the Respondent why the Respondent had not requested a re-inspection. The Respondent proceeded with construction without passing a framing inspection. Therefore, in the February 12, 1986 letter from Mr. Rackley the Respondent was directed to uncover the areas which had failed the inspection so that they could be re-inspected. The Respondent did not respond to Mr. Rackley's letter of February 12, 1986. Therefore, on February 24, 1986, the Respondent was contacted by Mr. Rackley by telephone. The Respondent agreed to open the areas necessary to complete the framing inspection. On February 26, 1986, the framing inspection was completed. An opening had to be cut in the existing roof for the inspection to be completed. The Respondent did not fail to arrange a re-inspection of the property in order to hide anything or cover-up improper work. The construction passed the insulation inspection. No final inspection of the construction has ever been requested or completed. As a part of the Respondent's agreement with the Ashleys, the Respondent was to remove the roof on the existing structure and cover it and the new roof with fiberglass shingles with a 20-year life. The shingles used by the Respondent were Temko shingles. Manufacturers of roofing materials generally recommend how to apply their products in writing. Therefore, Temko included instructions for the application of the shingles used by the Respondent. The instructions were written on the paper used to wrap the bundles of shingles. In order for the manufacturer's guarantee of the Temko shingles to be effective, the shingles must be installed according to the manufacturer's instructions. The Southern Building Code, which applies in Leon County, also requires that manufacturer's instructions be complied with. The following pertinent instruction, among others, was included with the shingles used on the Ashley's residence: LOW SLOPE APPLICATION: On pitches of 2" per foot to 4" per foot, provide a double underlayment of asphalt saturated felt by applying a 19" wide felt strip along the eaves and over this apply a full 36" wide sheet. Continue with full 36" wide sheets, lapping each 19" over the preceding course. If winter temperatures average 25 F or less, thoroughly cement the felt to each other with Temko plastic cement from eaves and rakes to a point a [sic] least 24" inside the inside wall line of the building. This instruction is consistent with roofing industry standards. The roof of the Ashley's residence pitches at 2" to 2 1/2" per foot. Therefore, the Respondent should have applied two layers of felt to the roof as specified in the "Low Slope Application" instruction. The Respondent's crew, however, only applied one layer of felt to the Ashley's roof. The instructions for the shingles also specified that each shingle be attached with four nails placed in a particular pattern. The Respondent's crew did not follow these instructions. Along the edges of the roof, the felt should have been cemented to the roof. It was not, however. Shingles placed in the valleys on the roof were not attached in any manner to the roof. The manner in which the roof was installed was incompetent. After the roof was placed on the Ashley's residence, water leaked in at several locations. The Respondent did not return the Ashley's telephone call. One of the Respondent's work crew when informed about the leaks told Mr. Ashley that the roof was not leaking; that it was blowing in from outside. Some of the problems with the roof were corrected by the Respondent. They were corrected, however, only after a building inspector was called in by the Ashleys. Even then, the leaks did not stop. The Ashleys subsequently paid another contractor $560.00 to correct problems with the roof. Throughout the period of time that the Respondent's crew worked at the Ashley's residence, whenever a problem arose, the Ashleys would be told not to worry about the problem; that it would be taken care of. Many of the problems, however, were not taken care of by the Respondent. Throughout the period of time that work was being performed at the Ashley's residence, there were numerous times when no one would perform any work at the Ashley's. Weeks would often go by without the Ashley's seeing the Respondent and without the Respondent's presence at the Ashley's. During the period that work was being performed at the Ashley's residence, there was a great deal of rain and the temperature dropped below 40 degrees. These weather conditions slowed progress on completing the job. These weather condition were not unique, however, and the Respondent admitted that he knew it rains and gets cold often during the period of time involved in this proceeding. One weather problem that the Respondent could not have reasonably foreseen was the hurricane which struck Tallahassee on November 22, 1985. As a result of damage to property caused by the hurricane, roofing and other materials were more difficult to obtain. Rain associated with the hurricane washed away the top layer of the concrete from the slab that was poured the day the hurricane struck. The Respondent checked with the weather service that morning. Based upon the projected weather, the hurricane was headed away from Tallahassee and rain was not expected until that afternoon. The concrete was poured in the morning and would have been dry before the afternoon. The weather forecast was incorrect, however, and the rain struck earlier than expected. After work had commenced on the Ashley's residence, the agreement was modified. The Respondent indicated that he could not do the tile work in the bathroom. Therefore, the agreed upon price for the project was reduced by $2,000.00. The Ashleys also had the Respondent perform other work not originally agreed upon; 2 skylights and a door were added and additional brick work was performed. These changes caused some delay in completion of the project. The evidence did not prove, however, that all of the delay was attributable to the changes in the work to be performed. Much of the delay was caused by the fact that the Respondent's crew simply did not show up to work at the Ashley's residence. The delays in completing construction at the Ashley's residence were on the whole not reasonable. Although days were lost because of weather conditions, including the hurricane, and changes in the work to be performed, the days that no work was performed were not reasonable or caused by these factors. The Respondent failed to properly supervise the work performed at the Ashley's residence. Although the Respondent indicated that he relied upon the men who worked for him, he was ultimately responsible for the proper completion of the project. The project was not completed and some of the work performed was not performed in a satisfactory manner. The Respondent was not allowed to complete the project. The Ashleys eventually got so fed up with the Respondent's failure to correct problems and to complete the project that they would not allow the Respondents onto the property. Sometime after 1981, the Respondent received forms from the Petitioner which could be used to register his contracting license in the name of Big Bend Builders Corp., Inc. He asked his former attorney to complete the forms for him. The forms were completed and placed in the Petitioner's mail. The Respondent's license has not been registered in the name of Big Bend Builders Corp., Inc. The Respondent believed that his license was being switched to the corporate name. He knew or should have known that the change had not been completed because he did not receive a copy of a license with the corporate name. The Respondent's license had previously been held in a corporate name. The heading of the Proposal indicates that it is a proposal of "Big Bend Builders Corp., Inc." The Proposal was signed by the Respondent and was also signed "Big Bend Builders Corp., Inc. by Welton Smith." Mr. Ashley understood that the agreement he was entering into was with Big Bend Builders Corp., Inc. The two payments made by the Ashleys were made by checks. The checks were made out to Big Bend Builders Corp., Inc. The building permit on the Ashley's residence was applied for and issued in the name of Big Bend Builders Corp., Inc. Big Bend Builders Corp., Inc., was not qualified with the Petitioner.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That the Respondent be found guilty of violating Sections 489.129(1)(d), (g), (j) and (m) and 489.119, Florida Statutes (1985). It is further RECOMMENDED: That the Respondent be required to pay an administrative fine of $2,000.00. DONE and ENTERED this 2nd day of September, 1987, in Tallahassee, Florida. LARRY J. SARTIN Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 2nd day of September, 1987. APPENDIX TO RECOMMENDED ORDER, CASE NO. 87-2641 The parties have submitted proposed findings of fact. It has been generally noted below which proposed findings of fact have been generally accepted and the paragraph number(s) in the Recommended Order where they have been accepted, if any. Those proposed findings of fact which have been rejected and the reason for their rejection have also been noted. Petitioner's Proposed Findings of Fact Proposed Finding Paragraph Number in Recommended Order of Fact Number of Acceptance or Reason for Rejection 1 1 and 2. 2 56. 3 4. 4 5. 5-6 6. 7 7. 8 18. 9-10 18 and 61. 11-12 10. 13 39 and 41. 13 The first sentence is hereby accepted. The second sentence is not supported by the weight of the evidence. This state- ment was made to the Ashleys but in regard to the problems they had with their roof. 14 43. 15-16 44. 17 21. 18 21, 23 and 25. The building inspector informed the Respondent of the failed framing inspection on December 17, 1985, and not December 7, 1985. 19 28. 20 26. 21 33 and 34. 22 Hereby accepted. 23 37 and 38. 24-25 Hereby accepted. 26 38. 27 37. 28-29 39. 30 38-39 and 42. 31-35 Cummulative. 36-37 57. Respondent's Proposed Findings of Fact 1 Hereby accepted. 2 2. 3 28 and 29. There was no "final inspection" performed on the project. There was a final framing inspection, however, that indicated that the work that originally failed the inspection had been performed correctly. 4-7 These proposed findings of fact are not supported by the weight of the evidence. 47-48 and 50. The last sentence is not supported by the weight of the evidence. Not supported by the weight of the evidence. 10-11 Hereby accepted. 12 62. The last sentence is not supported by the weight of the evidence. COPIES FURNISHED: Fred Seely, Executive Director Construction Industry Licensing Board Post Office Box 2 Jacksonville, Florida 32201 Van Poole, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 Joseph Sole, Esquire General Counsel Department of Professional Regulation Tallahassee, Florida 32399-0750 W. Douglas Beason, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 Elwin Thrasher, Jr., Esquire 908 North Gadsden Street Tallahassee, Florida 32303
