Findings Of Fact Joseph Barrass is a registered roofing contractor holding State of Florida license number RC0026890. Respondent was so licensed at all times relevant to this proceeding. Respondent began doing business as a registered roofing contractor through his corporation, J. B. Roofing and Repairs, Inc., about six years ago. This corporation was dissolved and he continued as a roofing contractor through a corporation known as Roofing Services, Inc. He next did business through a third corporation, C. B. Roofing, Inc. Most recently he has done business as C. B. Roofing, a sole proprietorship. Respondent failed to register any of these entities with Petitioner, and is still licensed under his original fictitious name, J. B. Roofing and Repairs. Respondent contracted with Green Glades Construction Co. in early 1979, to install roofs on some 28 new houses. A dispute arose between the parties regarding several unfinished and leaking roofs. Respondent contends he refused to complete the roofs at issue due to nonpayment in accordance with the oral contract. He also argues that he was unable to repair the leaks while the roofs were wet, as demanded by Green Glades. The dispute was settled through civil proceedings. Another matter which culminated in civil action concerned the installation and repair of a patio roof pursuant to an oral contract between Respondent and Marvin Berkowitz, at the latter's Coral Springs residence. Berkowitz complained that Respondent failed to correct a leak in this roof as required by their agreement. Respondent claims the leak was the result of an improperly installed ceiling fan and the flat roof design demanded by Berkowitz. Respondent completed the job and received final payment on October 9, 1979. However, the roof leaked and Berkowitz thereafter contacted Respondent on numerous occasions requesting repairs. It was not until Berkowitz retained counsel and threatened legal action that Respondent made any effort to repair the leak. He returned on February 14, 1980, and did limited repair work. The roof continued to leak and Berkowitz sought damages through civil action. The evidence is conflicting as to whether or not the ceiling fan had been removed when Respondent returned in February, 1980. Berkowitz testified that it had been removed, and Respondent testified that it had not. The evidence is also in conflict with respect to the caveats and/or assurances Respondent gave Berkowitz regarding this installation. The recollections of both witnesses were self-serving and their testimony was generally lacking in credibility. The City of Coral Springs' building code requires a contractor to obtain a permit prior to roof installation. Respondent knew he was required to obtain such a permit for the Berkowitz project, but failed to do so.
Recommendation From the foregoing, it is RECOMMENDED: That Respondent be found guilty of violating Sections 489.119, 489.129(1)(g) and 489.129(1)(j), F.S., in failing to register his business entities and contracting without requisite qualification. It is further RECOMMENDED: That Respondent be found guilty of violating Subsection 489.129(1)(d), F.S., for wilful disregard of the Coral Springs building code pertaining to building permits. It is further RECOMMENDED: That all other charges against Respondent be dismissed. It is further RECOMMENDED: That Petitioner suspend Respondent's roofing contractor's license for a period of six months. DONE AND ENTERED this 17th day of February, 1982, in Tallahassee, Florida. R. T. CARPENTER, 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 17th day of February, 1982.
Findings Of Fact At all times material hereto Respondent was a registered roofing contractor with license number RC-0021643 and was acting as the qualifying agent for Poe Roof Company, Inc. The City of Coral Gables has adopted the South Florida Building Code which requires that a contractor obtain a building permit prior to commencing roof construction or repair. However, no permits is required when such work does not exceed $300 in value. If a roofing contractor fails to apply for a building permit the City is unable to conduct required inspections and is unaware of ongoing construction unless it is discovered by the City's code enforcement section. A Notice of Violation is issued when unpermitted construction activity is discovered, and the contractor is asked to "dry the roof in" to avoid the possibility of damage due to bad weather. All work is then stopped and the contractor must apply for a permit. On July 28, 1983 Poe Roof Company, Inc., submitted a proposal to reroof St. Mark's Lutheran Church which was accepted in March 1984 and work was begun. Construction was completed in June, 1984. Respondent did not apply for a permit for this job prior to the work commencing, and therefore required inspections were not made by the City. Respondent subsequently did apply for a permit on June 4, 1984. When a complaint from the church was received by the City about the work being performed, the City required Respondent to cut a "roof plug" so that it could be determined if the roof was being properly installed. No defects in the roof installation were discovered. The Church's representative had complained that Respondent did not properly supervise the installation and that the wrong roof tiles were used. The evidence presented does not establish that the wrong tiles were used, but it is evident that Respondent visited the job site infrequently, if at all. An investigator for the Department of Professional Regulation interviewed Respondent on July 5, 1984 and testified that Respondent admitted that he had never visited the job but simply supervised the reroofing from his office. The City of Coral Gables issued Notices of Violation against Poe Roof Company, Inc. on May 2, May 21 and July 11, 1984 for performing other roof work and repairs without the required permit. In these instances the value of each job exceeded $300, Respondent had not applied for a permit prior to the issuance of the Notice of Violation, and he was therefore assessed a double fee when he did submit applications on June 4, 1984 for the jobs associated with the Notices issued on May 2 and 21. He was also assessed a $100 fine by the City as a result of the Notice of Violation issued on July 11, 1984 for which he subsequently applied for a permit on September 26, 1984. In November, 1983 Respondent submitted a change of status application to the Construction Industry Licensing Board to change his license from inactive to active. Although he was designated as the applicants the license number for Roger Miller, owner of Poe Roof Company was shown on the application as well as on the check that accompanied the application. As a result of this error, Respondent's license was not changed to active status until July 9, 1984 when he was issued a 60 day temporary license to serve as qualifier for Poe Roof Company. Thus, when the work at St. Mark's Lutheran Church was taking place and two Notices of Violation were being issued on May 2 and 21, Respondent did not have an active license. His license was inactive when he subsequently applied for permits for these three jobs on June 4, 1984. Respondent knew his license was inactive since in defense he contends the City would not have issued permits to him if he had timely applied for them because he did not have an active license. The parties were given an opportunity to submit posthearing proposed findings of fact pursuant to Section 120.57(1)(b)4., F.S. A ruling on each proposed finding of fact has been made either directly or indirectly in this Recommended Order, except where such proposed findings of fact have been rejected as subordinate, cumulative immaterial or unnecessary.
Recommendation Based upon the foregoing findings of fact and conclusions of law it is recommended that a Final Order issue imposing an administrative fine of $750 against Respondent. DONE and ENTERED this 10th day of June, 1985 at Tallahassee, Florida. DONALD D. CONN 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 10th day of June, 1985. COPIES FURNISHED: W. Douglas Beason, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Bruce M. Cease, Esquire 2720 West Flagler Street Miami, Florida 33135 James Linnan, Executive Director Construction Industry Licensing Board Post Office Box 2 Jacksonville, Florida 32202 Fred Roche Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Salvatore A. Carpino Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301
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.
The Issue Whether Respondent committed the offenses set forth in the administrative complaint and, if so, the penalty which should be imposed.
Findings Of Fact At all times material to this case, the Respondent, Harry Bradshaw, was licensed as a registered roofing contractor in the State of Florida, holding license number RC 0033812. On August 26, 1986, Respondent's license as a registered roofing contractor was suspended by Petitioner. Respondent's license remained suspended at all times material to this case. On December 16, 1987, Respondent contracted with the Moose Lodge located in Hialeah, Florida, to reroof the Moose Lodge building. The proposal submitted by Respondent contained representations that Respondent was licensed as a registered roofing contractor and that he was insured. Respondent knew that his license as a registered roofing contractor was under suspension. Respondent had no insurance. The contract between Respondent and the Moose Lodge provided that Respondent would perform the work and supply the materials for the sum of $6,200.00. The sum of $3,200.00 was paid to Respondent in advance of his beginning the job. Respondent used the sums advanced to purchase materials and supplies. The remaining $3,000.00 was to have been paid upon Respondent's completion of the job. During the negotiations that resulted in the contract between Respondent and the Moose Lodge, Respondent represented that the job should be completed in time for the functions scheduled for New Year's Eve. While Respondent had purchased the materials needed for the job and had done a substantial amount of work on a portion of the roof, he was unable to complete the work by the New Year. Respondent was ordered to stop work on the job on January 26, 1988. Respondent did not abandon the job. Although he was slow in performing the work, a part of Respondent's delay in performance was caused by rain. There was no evidence as to what would have been a reasonable period of time for Respondent to have completed the job. On January 26, 1988, the administrator for the Moose Lodge complained to the Building Inspection Department for the City of Hialeah, Florida, because the administrator was not pleased with the progress that Respondent was making toward completion of the job. The administrator was told by a representative of the Building Inspection Department on January 26, 1988, that Respondent had no license and that the required permit had not been pulled. The administrator was told to prohibit Respondent from working on the roof. Immediately thereafter, the administrator instructed Respondent to do no further work on the roof. The members of the Noose Lodge completed the job started by Respondent for less than $3,000.00, the balance of the amount that would have been owed Respondent if he had finished the job. Respondent knew that a permit was required for this work. Respondent also knew that only a licensed roofing contractor could pull the required permit. Respondent proceeded with the job when he was unable to persuade a licensed roofing contractor to pull the permit for him. Petitioner filed an administrative complaint against Respondent alleging that at the time he contracted with the Moose Lodge, Respondent's license was suspended, thus violating the provisions of Section 489.129(1)(j), Florida Statutes, and the provisions of Section 489.127(1)(e), Florida Statutes. The administrative complaint also alleged that Respondent failed to perform in a reasonably timely manner and/or abandoned the job in violation of Section 489.129(1)(m), Florida Statutes, and Section 489.129(1)(k), Florida Statutes. Respondent denied the allegations of the administrative complaint and timely requested a formal hearing. This proceeding followed. Respondent was previously disciplined by the Construction Industry Licensing Board, and his license remained under suspension at the time of the final hearing.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that a final order be entered finding Respondent guilty of having violated Section 489.127(1)(e), Florida Statutes, and Section 489.129(1)(j), Florida Statutes. It is further recommended that the final order revoke Harry Bradshaw's license in the State of Florida as a registered roofing contractor. DONE and ENTERED this 31st day of October, 1989, in Tallahassee, Florida. CLAUDE B. ARRINGTON 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 31st day of October, 1989. COPIES FURNISHED: Harry Bradshaw 5590 East Seventh Avenue Hialeah, Florida 33013 David M. Gaspari, Esquire Adams, Coogler, Watson & Merkel, P.A Suite 1600 NCNB Tower 1555 Palm Beach Lakes Boulevard West Palm Beach, Florida 33402-2069 Kenneth E. Easley, General Counsel Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 Fred Seely, Executive Director Department of Professional Regulation Construction Industry Licensing Board Post Office Box 2 Jacksonville, Florida 32201
The Issue Whether the Respondent committed the violations alleged in the Amended Administrative Complaint dated July 15, 1998, and, if so, the penalty that should be imposed.
Findings Of Fact Based on the oral and documentary evidence presented at the final hearing and on the entire record of this proceeding, the following findings of fact are made: The Department of Business and Professional Regulation is the state agency responsible for investigating and prosecuting complaints made to the Department for violations of Chapter 489, Part I, Florida Statutes. Sections 489.131(7)(e) and 455.225, Florida Statutes. Pursuant to Section 489.129(1), the Construction Industry Licensing Board ("Board") is the entity responsible for imposing discipline for any of the violations set forth in that section. At all times material to this proceeding, Mr. Peters was licensed by the Board as a certified roofing contractor, having been issued license number CC C029551. This license authorized him to engage in business as a roofing contractor as an individual and not as the qualifying agent of any business entity. Victor Sher owned and resided in a home located at East Tropical Way in Plantation, Broward County, Florida. On or about June 9, 1993, and July 1, 1993, Mr. Sher accepted two written proposals to replace the roof on his home, which proposals were submitted to him by R. J. Bonneau on behalf of RJB International. The proposals were signed by Mr. Sher and by "R. J. Bonneau, P.E., for the firm." Pursuant to these contracts, Mr. Sher paid a deposit in the amount of $5,500 to RJB International by check dated June 7, 1993; and, by check dated July 1, 1993, Mr. Sher paid RJB International an additional $800. Also, by check dated July 1, 1993, Mr. Sher paid Monier, a roof tile supplier, $5,738.35 for materials. At some point after the first contract between Mr. Sher and RJB International was executed, Mr. Bonneau asked Mr. Peters to submit an estimate of the cost of re-roofing Mr. Sher's house. Mr. Peters submitted an estimate of $16,520 based on specifications provided by Mr. Bonneau,1 and Mr. Bonneau accepted the estimate. It was Mr. Peters' understanding that RJB International was the general contractor for the project, operating under a contract with Mr. Sher, and that he was the roofing subcontractor for the project, operating under a "contract" with RJB International based on Mr. Bonneau's acceptance of his estimate for the re-roofing work. He expected to be paid by RJB International. On or about June 22, 1993, Mr. Peters obtained a building permit from the City of Plantation for the roof replacement project on Mr. Sher's residence. Mr. Peters began working on the Sher re-roofing project on or about June 23, 1993. By checks dated July 23, August 16, August 19, and August 23, 1993, Mr. Sher paid Mr. Peters $800, $2,432, $2,000, and $1,000, respectively, totaling $6,232. Mr. Peters was surprised to receive payment directly from Mr. Sher, but he assumed that that was the arrangement between Mr. Sher and RJB International. He never received any of the $6,200 Mr. Sher paid to RJB International. Mr. Peters worked on the project until late August or early September 1993, when he stopped working on the project because he had not received payment for the work completed to date. Mr. Peters requested payment from Mr. Sher, only to be referred to RJB International, which in turn, referred him to Mr. Sher. When Mr. Peters stopped working on the Sher residence, he advised Mr. Sher that he would complete the work as soon as he received the payments he considered due. Mr. Peters estimated that, when he left the job, $1,000 to $1,500 worth of work remained to complete the re-roofing project. He did not hear anything more from Mr. Sher or RJB International, and, in 1995, he moved to Ohio. After Mr. Peters stopped work on Mr. Sher's roof, Mr. Sher obtained an owner's building permit and completed the project. In September 1994, Mr. Sher filed a five-count complaint against Mr. Peters and Rosaire J. Bonneau d/b/a RJB International in the Circuit Court of the Seventeenth Judicial Circuit in Broward County, Florida, in which he sought to recover damages he allegedly suffered as a result of re-roofing project; three counts of the complaint, breach of contract, negligence, and conversion, named only Mr. Peters as defendant. A default was entered against Mr. Peters, and, in a final judgment entered on the default on May 19, 1995, Mr. Peters was ordered to pay to Mr. Sher $28,142.70 in damages, plus $1,740.00 in attorney's fees and costs, for a total of $29,882.70, with interest accruing on this sum at the rate of eight percent per year. In addition, Mr. Peters was assessed $4,447.45 in prejudgment interest. Mr. Peters was listed on the judgment as a person to whom a copy was furnished, but he did not receive the copy. Mr. Peters first learned of the existence of the judgment in October 1997, when he received a copy of the Department's Administrative Complaint dated May 31, 1996. In late 1997 or early 1998, Mr. Peters received notification of the judgment from another source, and he also received a letter from Mr. Sher's insurance company advising him that they had paid Mr. Sher approximately $30,000 in damages and were looking to Mr. Peters for reimbursement. Mr. Peters subsequently retained an attorney to try to negotiate with Mr. Sher. Mr. Peters was willing to pay $1,000 to satisfy the judgment because he believed that the roof could have been finished for that amount. Mr. Sher did not accept the offer. In a letter to Mr. Peter's attorney dated August 26, 1998, Mr. Sher's attorney enclosed a copy of the judgment against Mr. Peters and indicated that his client would be willing to negotiate a payment arrangement with Mr. Peters. At the time of the final hearing, Mr. Peters had not satisfied the judgment in whole or in part or made any arrangements with Mr. Sher for payment of the award; Mr. Peters had not moved to set aside, vacate, or discharge the judgment in bankruptcy; and he had not appealed the judgment.2 Mr. Peters has been subject to two previous disciplinary actions relating to his state certification as a roofing contractor. The first disciplinary action against Mr. Peters resulted in entry of a final order in January 1988, in which he was found guilty of contracting in a name not on his license and of failing to qualify a business organization; an administrative fine of $1,000 was imposed. The second disciplinary action resulted in entry of a final order in January 1994, in which he was found guilty of failing to have his license number on a contract and imposing an administrative fine of $100. The Department provided an affidavit at the hearing in which it claimed that it had incurred costs of investigating and prosecuting this case totaling $879.35, excluding legal costs.
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: Dismissing Counts I through VI of the Amended Administrative Complaint against Steve G. Peters; Finding Mr. Peters guilty of having violated Section 489.129(1)(r), Florida Statutes, as alleged in Count VII of the Amended Administrative Complaint; Imposing an administrative fine on Mr. Peters in the amount of $2,000; Requiring that Mr. Peters pay all reasonable costs of investigation and prosecution associated with the Department of Business and Professional Regulation's investigation and prosecution of the charges set forth in the Amended Administrative Complaint; and Requiring that Mr. Peters either pay restitution to Victor Sher in the amount of $28,142.70 or, in the alternative, provide proof of satisfaction of the May 9, 1995, civil judgment. DONE AND ENTERED this 16th day of August, 1999, in Tallahassee, Leon County, Florida. PATRICIA HART MALONO 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 16th day of August, 1999.
Findings Of Fact Based upon all of the evidence, the following findings of fact are determined: At all times relevant hereto, respondent, John W. Hull, held certified building contractor license number CB CO28961 issued by petitioner, Department of Business and Professional Regulation, Construction Industry Licensing Board (Board). When the events herein occurred, respondent was qualifying agent for, and doing business as, John W. Hull Construction in Inverness, Florida. On September 15, 1990, respondent entered into a contract with Robert and Mary E. Griggs to construct a single-family residence at 7118 East Gospel Island Road, Inverness, Florida, for an estimated cost of $130,000. The contract called for respondent to be responsbile for all materials and work on the project and to build the residence in compliance with the county building code. In this regard, respondent pulled the permit for the job and was the supervising contractor. The project was completed around mid-May 1991 and a certificate of occupancy was issued by Citrus County (County). After the Griggs paid for the work in full, they took occupancy of the premises on May 17, 1991. On September 21, 1993, the Griggs noticed a water leak in the guest bathroom. Mary Griggs immediately contacted respondent and was told to call the subcontractor who installed the roof, Lloyd Vann. She did so and Vann came to the house the next morning and acknowledged the shingles were installed "incorrectly." He returned on October 4, 1993, and placed some tar under the shingles. While doing so, Griggs says that Vann "ripped a lot of the shingles." When the leaks persisted, including at least seven separate leaks during a single rain storm, Mary Griggs requested two other roofers to inspect her roof. They corroborated Vann's acknowledgment that the roof was "incorrectly" installed. On January 18, 1994, Griggs again contacted respondent and told him she needed a new roof since it violated building code requirements. He responded that there were no building code standards applicable to the roof. Mary Griggs persisted with her complaint and eventually arranged a meeting with a County building inspector, Henry Pann, respondent and Vann on September 30, 1994. However, Griggs was told not to speak at the meeting but rather to listen to the other participants. As a result of that meeting, Mary Griggs was contacted by respondent just after a heavy rain on October 3, 1994, to see if she still had any roof leaks. Not surprisingly, she responded in the affirmative and respondent visited the premises the next day. After concluding that the leaks were caused by water seeping through the sides of the chimney, respondent sealed and repainted the chimney area the following day. On November 15, 1994, the Griggs again experienced "heavy leaks" in their home during a heavy rain storm. After unsucessfully attempting to contact respondent, Mary Griggs finally reached Vann, who eventually replaced some shingles on November 23, 1994. However, as of the time of hearing in late July 1995, the Griggs still had water leaks in their home every time it rained, some of which were "worse" than before any repairs were made. Photographs received in evidence, and deposition testimony by inspector Pann, confirm numerous water stains throughout the house. Inspector Pann established that the roof violated the County's building code in at least four respects. First, the roof was in violation of section 103.2.4 by having inadequate fastener lengths, that is, respondent's agent had used staples instead of large head galvanized nails as required by the code. Thus, the fasteners could not penetrate through the shingle and into the lumber deck. Second, section 103.2.3 was contravened because the rakes and eaves were not cemented. Third, section 100 was violated because the drip edge was applied over the felt topping, a procedure which also contravened the manufacturer's specifications. Finally, the roof workmanship violated sections 100 and 100.1 by having an improper staple installation. The manufacturer of the asphalt shingles used on the Griggs' roof, Georgia-Pacific, has published a brochure containing easily understood instructions on how to install asphalt shingles. Even so, Vann ignored these plain instructions in a number of respects when he installed the Griggs' roof. For this reason, it can be reasonably inferred that respondent, through his agent Vann, deliberately violated local building codes. To correct the code violations and eliminate the leaks, and to make the roof comparable to that which the Griggs contracted for, it will be necessary for the Griggs to replace the roof, which will cost $7,020.00. In addition, it will cost the Griggs $500.00 to seal and paint the ceiling areas discolored by the leaking water. Respondent says that when the roof was installed in 1991, he followed applicable building codes "as much as they were being followed" at the time. While he defended his roofing subcontractor as being "a very reputable roofer," respondent nonetheless took the position that the roof was Vann's responsibility "to make good," and not his. He does not deny that the Griggs' roof is leaking, but says the leaks are "very small" and suggests that the Griggs' claims are exaggerated. At hearing, respondent suggested that the problem could be resolved by Mary Griggs calling Vann, who would "be there within a day or two" to make the repairs, a claim belied by the record. In any event, respondent is unwilling to replace the entire roof, a measure deemed to be necessary by the County inspector and other contractors. In light of respondent's continued failure to take appropriate measures to fix the roof, it is found that respondent is guilty of misconduct in the practice of contracting. Through a late-filed affidavit, petitioner established that it incurred $3,012.18 in costs in prosecuting this action. This amount was not challenged. By law, the Board is entitled to recover this amount from respondent should it prevail in this proceeding.
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 finding respondent guilty of violating Sections 489.129(1)(d) and (m), Florida Statutes (Supp. 1990), imposing an administrative fine of $2,250.00, requiring that he pay restitution in the amount of $7,520.00, and requiring that he pay $3,012.18 for costs incurred by the Board in investigating and prosecuting this action. The fine, restitution and costs shall be repaid by a date certain to be established by the Board. DONE AND ENTERED this 8th day of September, 1995, 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 8th day of September, 1995. APPENDIX TO RECOMMENDED ORDER, CASE NO. 95-0541 Petitioner: The proposed findings submitted by petitioner have generally been adopted in substance in this Recommended Order. COPIES FURNISHED: Gary L. Asbell, Esquire Dept. of Business and Professional Regulation 1940 North Monroe Street, Suite 60 Tallahassee, Florida 32399-0792 Mr. John W. Hull 95495 Berkshire Avenue Inverness, Florida 34452-9005 Richard Hickok, Executive Director Construction Industry Licensing Board 7960 Arlington Expressway, Suite 300 Jacksonville, Florida 32211-7467 Lynda L. Goodgame, Esquire Dept. of Business and Professional Regulation 1940 North Monroe Street, Suite 60 Tallahassee, Florida 32399-0792
The Issue The ultimate issues to be resolved in this proceeding are whether the Respondent has committed violations of statutes relating to licensed contractors and, if so, the appropriate penalty that should be imposed. The Administrative Complaint is in six counts. The first five counts basically allege that the Respondent aided and abetted unlicensed persons to practice contracting by allowing these persons to use his license in order to obtain building permits to do roofing work. In Count Six, it is charged that the Respondent has engaged in continuing acts of misconduct. At the hearing, the Department dismissed allegations that the Respondent violated provisions of local building codes. The Respondent denies all of the allegations.
Findings Of Fact The Respondent has been certified by the Construction Industry Licensing Board as a general contractor (License No. CG C011050) and as a roofing contractor (License No. CC C001794). The Respondent also holds a real estate broker's license and a mortgage broker's license. The Respondent has developed apartment complexes, and housing and business developments. The Respondent is not presently active in roofing contracting, but he was during the period from 1979 through 1981. Be has been in business in Florida since 1967. The Respondent had qualified Kirk, Inc., with the Construction Industry Licensing Board to do general and roofing contracting. The Respondent is president of Kirk, Inc. The Respondent did not qualify any other entities to do contracting work under either of his licenses during the times material to this proceeding. For approximately eighteen months during 1979 and 1980, the Respondent had a business relationship with Edward G. Tindall. Tindall had worked for the Respondent'5 father and was having financial difficulties. Tindall had some experience in the roofing business, and the Respondent sought to use Tindall to manage Respondent's roofing contracting business. Tindall was to be paid a supervisory rate plus other fees. Tindall was to solicit roofing jobs; enter into contracts with customers on behalf of Kirk, Inc.; and perform the roofing jobs. Tindall was not licensed in any capacity by the Construction Industry Licensing Board, and he was therefore not authorized to obtain building permits from the City of Titusville, where most of the jobs were located. Tindall did not perform work in accordance with the agreement with Respondent. Instead, Tindall had stationery and business cards printed which were labeled "Tindall Roofing Company, a division of Kirk, Inc." When Tindall got a roofing job, he did not reduce it to contract on a Kirk, Inc., form as he was supposed to do. Rather, he operated on the basis of oral contracts. He advised personnel at Kirk, Inc., who were qualified to obtain building permits, that he had obtained the jobs, and building permits were secured. Thereafter, Tindall would typically tell Kirk, Inc., employees that the job had fallen through. In the meantime, Tindall completed the work, often using Kirk, Inc., equipment, supplies and workers, and kept the proceeds for himself. The Respondent did not become aware of Tindall's activities until sometime late in 1980. When he learned what Tindall was doing, the Respondent fired Tindall and another employee. In August, 1979, Tindall contracted to repair a roof at the Florida Power and Light Building in Titusville, Florida. Be advised Kirk, Inc., of the contract, and the qualified person at Kirk, Inc., obtained a permit from the City of Titusville to complete the work. Tindall then advised that the project had been cancelled and completed the work himself. The roof was not completed in accordance with Tindall's agreement with Florida Power and Light and was constructed in a manner contrary to the City of Titusville building code. The Respondent was unaware that this had occurred until sometime late in 1980. During September, 1979, Tindall contracted with Donald Klongerbo to reroof Klongerbo's home in Titusville, Florida. Tindall obtained a building permit by utilizing Kirk, Inc., employees, then advised that the contract had fallen through. Tindall then completed the work himself. The Respondent did not know that this had occurred until sometime late in 1980. During approximately October, 1979, Tindall contracted to repair a roof on a warehouse in Titusville, Florida, that was owned by B. S. Brown. The Respondent authorized Tindall to obtain a building permit from the City of Titusville for this one project in accordance with the City of Titusville code. Tindall then advised that the contract had fallen through and completed the work himself. The work was completed in a substandard manner, and the roof leaked. The Respondent did not learn that this had occurred until sometime late in 1980. He endeavored to repair the poor work that Tindall had performed. During June, 1980, Tindall contracted to repair the roof on a residence owned by Gwen O. Mills in Titusville, Florida. Tindall obtained a building permit from the City of Titusville by utilizing personnel at Kirk, Inc. After obtaining the permit, Tindall advised that the contract had fallen through and completed the work himself. The work was completed in a substandard manner and eventually needed to be completely redone. Respondent did not learn of this incident until late in 1980. During the investigation of this matter, Tindall gave a written statement which was reduced to writing and which he signed. The statement supports the version of the facts alleged in the Administrative Complaint. At the final hearing, Tindall gave testimony consistent with that version of the facts. On two other occasions, Tindall signed affidavits to a totally different effect. In one of them, he admitted that he obtained the building permits by making untrue statements to the Respondent and other personnel at Kirk, Inc. At the hearing, Tindall gave testimony which supports this version of the facts. In evaluating Tindall's testimony, due regard has been given to the conflicting affidavits that he signed, to the conflicting testimony that he gave at the hearing, and to his demeanor as a witness. It has been concluded that his testimony is utterly incredible and not worthy of being believed. During May, 1981, Vernon Crosby, who did business as Crosby Painting and Decorating, was performing work at an apartment complex owned by Hewitt Properties, Inc. The apartments are located in Titusville, Florida. Roofing repairs were necessary for several of the buildings. Crosby talked with David Lawhorn, an experienced roofing worker, about the project and, based on that discussion, gave an estimate of the expense to Hewitt Properties. Crosby was asked to perform the work. He hired Lawhorn to accomplish it. Neither Crosby nor Lawhorn is a licensed contractor, and neither was authorized to obtain building permits from the City of Titusville. Lawhorn commenced work without obtaining a permit. Upon learning that work was being undertaken without a permit, personnel of the City of Titusville promptly and properly stopped the work from proceeding further. After work was stopped by the City, Crosby contacted the Respondent about the problem. The Respondent agreed to obtain a building permit for the work. The permit was obtained, and Lawhorn completed the work as he had agreed with Crosby to do. The Respondent was never in contact with Lawhorn about this project. Lawhorn's work was not supervised either by the Respondent or by Crosby. The only input that the Respondent gave to the project was obtaining the building permit. Due to ambiguities in the testimony, it is impossible to glean how much the Respondent was paid, but it is apparent that he was compensated and that he did nothing to earn compensation except obtain a building permit. The Respondent testified that he considered Crosby the agent of the apartment owner. Be testified that he viewed himself as the contractor and Crosby as his super visor. He testified that Crosby was to supervise Lawhorn's work on Respondent's behalf. This version of the relationship has not been credited because it is not supported by she testimony of either Crosby or Lawhorn. Crosby and the Respondent had had business dealings in the past, and it appears that the Respondent obtained the permit in part as a helpful gesture to Crosby. It does not appear that the Respondent ever anticipated performing a roofing job at the apartment far complex. His motivation, instead, was to obtain a building permit to allow persons who could not otherwise obtain a permit (Crosby and Lawhorn) to perform the work. There is insufficient evidence to support a finding that the Respondent has been guilty of any continuing course of misconduct in the practice of contracting. The only misconduct that has been established is in connection with the obtaining of a single building permit.
