The Issue The issue is whether Respondent should have an administrative fine or other disciplinary action imposed for allegedly acting as a contractor without a license.
Findings Of Fact Based upon all of the evidence, the following findings of fact are determined: When the events herein occurred, Respondent, Edsel Mathews, operated a business under the name of Home Repair Roofing in Monticello, Florida. Records of Petitioner, Department of Business and Professional Regulation, Construction Industry Licensing Board (Board), establish that Respondent holds no licenses from that Board and thus he is not authorized to engage in any professions regulated by the Board. Gessie Lee Choice owns a residence at 1701 South Campbell Street, Perry, Florida. In 1995, her home was partially destroyed in a fire. Based on a recommendation by her lender, who was refinancing the repair work, Choice selected Respondent to repair her home. Relevant portions of the City Code of the City of Perry (City) were not made a part of this record. However, testimony established that under the licensing scheme for the City, an individual who has a specialty contractor license from the City may perform residential carpentry work if he works under the supervision of a licensed contractor. Alternatively, the same work may be performed by the license holder if the property owner obtains a building permit and signs an affidavit that he or she will be supervising the work. The license does not, however, authorize the holder to perform air-conditioning, electrical, or plumbing work even if the owner supervises the project. In addition, roofing work involving structural changes can only be performed under the auspices of a licensed roofing contractor. Respondent held a valid specialty contractor license from the City. On August 7, 1995, Choice obtained a building permit from the City and executed an affidavit stating that she would be supervising the work. Under these circumstances, Respondent was authorized to perform all work on the house except that relating to the plumbing, electrical, and air-conditioning systems. Also, he could not perform any structural work on her roof. The evidence is conflicting as to the representations Respondent made to Choice regarding his qualifications before the two parties executed a contract. The more persuasive evidence supports a finding that he represented he was a "subcontractor," but was not a licensed contractor within the Board's purview. While there is a conflict as to representations regarding his ability to perform plumbing and electrical work, it is found that Respondent simply agreed to procure for Choice a licensed plumber and electrician to do that type of work. Under the agreement executed by Choice, Respondent agreed to "furnish and perform the labor necessary for the completion" of a wide array of work. The items to be completed are listed on Petitioner's exhibit 3 and include removing asbestos from the outside of her house, enlarging three bedrooms and bath, removing an existing tin roof, installing new rafters, reroofing the home, building new cabinets and installing new plumbing and wiring for the kitchen, remodeling the existing bathrooms, building a utility room, installing new windows, insulating walls and ceilings, drywalling all ceilings, installing new carpet and vinyl, and placing vinyl siding on outside of home. Respondent established that even though the contract lists a number of items outside the scope of his authority, he intended to get licensed contractors to perform all work for which he held no authority under his city license. Choice agreed with this assertion. Despite Respondent's offer to obtain other contractors to perform the electrical and plumbing work, Choice selected her own licensed contractors to do that work. She also hired another individual to remove the asbestos from her home. Respondent performed a part of the remaining work, including the installation of a new roof. This latter work involved structural changes upon the house. Respondent made two draws totaling $13,200.00 from the escrowed funds. Also, in September 1995, Choice paid Respondent $446.00 in personal funds to purchase plywood to be placed on the floor and walls of the house. There is no allegation, however, that he failed to perform an equivalent amount of work before he was told by a Board inspector to stop working on the project. A short time after Respondent terminated work, a City building inspector, David Parker, inspected the roofing work performed by Respondent. Parker found that the truss system did not meet building code requirements. Because of numerous code violations, which are enumerated in Petitioner's Exhibit 9, the entire roof system had to be removed and reinstalled. Parker also noted that Respondent's work involved structural changes not authorized under his license. In mitigation, however, it is found that Respondent believed that he was authorized to do this work under his local license. Choice was forced to hire a licensed roofing contractor to reroof her home. That contractor described Respondent's workmanship as "not good." In order to correct the deficiencies and complete the remodeling project, Choice expended another $12,000.00 over and above her original contract price of $33,490.00. Except for this incident, there is no evidence of Respondent violating Board rules and statutes relating to contracting.
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 Section 489.127(1)(f), Florida Statutes, and that a fine in the amount of $1,000.00 be imposed, to be paid within such time as the Board deems appropriate. A decision on Petitioner's request for the assessment of costs against Respondent under Section 455.227(3), Florida Statutes, is deferred to the Board. Finally, Counts I and II should be dismissed. DONE AND ENTERED this 4th day of November, 1997, in Tallahassee, Leon County, Florida. DONALD R. ALEXANDER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 4th day of November, 1997. COPIES FURNISHED: John O. Williams, Esquire Post Office Box 14267 Tallahassee, Florida 32317 Clifford L. Davis, Esquire Post Office Box 1057 Monticello, Florida 32345 Rodney Hurst, Executive Director Construction Industry Licensing Board 7960 Arlington Expressway, Suite 300 Jacksonville, Florida 32211-7467 Lynda L. Goodgame, Esquire Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792
Findings Of Fact Respondent has been a registered roofing contractor at all times material hereto. His license number is RC-0035594. On or about April 26, 1985 Respondent, doing business as Pinellas Roofing Service, contracted with Bausch and Lomb to reroof their plant in Manatee County, at a contract price of $31,150. Respondent admits that at no time material hereto was he licensed to engage in contracting in Manatee County. Pinellas Roofing thereafter began, and partially performed, this job for which it was paid a total of $28,035. Petitioner alleges, and Respondent denies, that Respondent diverted funds received from this job for other purposes, and was thereafter unable to fulfill the terms of the contract with Bausch and Lomb. Petitioner did not present competent substantial evidence in support of this charge. Respondent never completed this job and took no steps to inform Bausch and Lomb that he would not complete the contract or make other arrangements for its completion. He left several thousand dollars worth of material on the roof, exposed, when he walked off this job, and this resulted in these materials being substantially destroyed. During the job, he did not take precautions to assure that the roof did not leak during heavy rainstorms. In fact, on at least three occasions, leaks caused damage to the interior of the plant and Respondent could not be reached. Therefore, Bausch and Lomb had to have another roofing contractor make emergency repairs on June 25, July 15 and September 3, 1985, at a total additional cost of $4,150. Since Respondent did not complete the contract, and left the roof unfinished, Bausch and Lomb contracted on September 17, 1985 with Bernard J. Lozon, Inc., to complete the job, and make certain additional repairs, at a cost of $24,000. In the opinion of Bernard J. Lozon, who was accepted as an expert in roofing contracting, the actual work that was done by Pinellas Roofing was satisfactory. However, Respondent's actions in walking off the job and leaving the roof unattended without completing the job is an unacceptable practice in roofing contracting, and constitutes incompetence and misconduct. Respondent failed to properly supervise this job. He relied upon his son to hire the necessary crews, pay them, handle financial aspects of the job, and assure its completion. His testimony indicates he fails to understand his own responsibility for supervising and completing the work for which he contracted, and which was performed under his license. At no time material hereto did Respondent qualify Pinellas Roofing Service with Petitioner. Respondent failed to apply for and obtain a Manatee County building permit for the roofing job in question, and also failed to request the county building department to perform inspections of the work performed. The Board of County Commissioners of Manatee County has adopted and follows the 1979 edition of the Standard for Installation of Roof Coverings, Southern Building Code, as amended in 1981. This Code requires all contractors performing work in Manatee County to be registered in Manatee County, and to obtain permits for all roof replacements and repairs in excess of $200, as well as obtain inspections of all such work to insure compliance with the Code. Respondent failed to comply with these requirements of the local building code. When Respondent submitted his proposal on April 16, 1985 for the Bausch and Lomb job, he specifically acknowledged, in writing, that "all work (is) to be done according to owner specifications sheet." (Emphasis supplied). At hearing, Respondent contended that when he submitted his proposal he never saw the project specification sheet which was thereafter attached to his contract with Bausch and Lomb and made a part thereof. Rather, he testified that his proposal referred to certain specifications that appeared on project drawings which he reviewed prior to submitting his proposal. After considering the demeanor of the witnesses and all of the evidence presented, and particularly the fact that Respondent referred to the "specifications sheet" and not "drawings" in his proposal, it is specifically found that Respondent had knowledge of, and did in fact submit his proposal based upon the "specifications sheet" which ultimately became a part of his contract. As such, he was bound thereby in the performance of work under this contract. In pertinent part, the "specifications sheet" requires that the contractor obtain all necessary permits from Manatee County, that notice be given to the owner in advance of work that will produce excessive amounts of dust or tar fumes so proper precautions could be taken, that roofing materials be stored in a manner that protects them from damage or adverse weather conditions during construction, and that the contractor provide a two year written guarantee at the conclusion of the job. Respondent failed to comply with these requirements of the specifications.
Recommendation Based upon the foregoing, it is recommended that Petitioner enter a Final Order suspending Respondent's registration for a period of ninety (90) days and imposing an administrative fine in the amount of $1,500. DONE AND ENTERED this 22nd day of April, 1987 in Tallahassee, Florida. DONALD D. CONN Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 22nd day of April, 1987. APPENDIX TO RECOMMENDED ORDER, CASE NO. 86-3698 Rulings on Petitioner's Proposed Findings of Fact: Adopted in Finding of Fact 1. Adopted in Finding of Fact 8. 3,4 Adopted in Finding of Fact 2. 5,6 Adopted in Finding of Fact 3, but otherwise rejected as irrelevant and unnecessary. 7,8 Adopted in Finding of Fact 9. Adopted in Finding of Fact 6. Adopted in Findings of Fact 5, 6. Rulings on Respondent's Proposed Findings of Fact: Adopted in part in Findings of Fact 3, 5. Rejected as not based upon competent substantial evidence. Adopted in part in Finding of Fact 3. Adopted in part in Findings of Fact 2, 3. 5-7 Addressed in Findings of Fact 2, 3 and 5. 8,9 Rejected as irrelevant and unnecessary. 10. Adopted in part in Finding of Fact 5. 11,12 Adopted in part in Finding of Fact 6. Rejected as not based upon competent substantial evidence. Adopted in Findings of Fact 5, 6. Adopted in Finding of Fact 6. COPIES FURNISHED: W. Douglas Beason, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Fl 32399-0750 Michael Schlesinger, Esquire 655 Ulmerton Road Building 11-A Large, Fl 33541 Fred Seely Construction Industry Licensing Board Post Office Box 2 Jacksonville, Fl 32201 Van Poole Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Fl 32399-0750 Joseph A. Sole, Esquire General Counsel Department of Professional Regulation 130 North Monroe Street Tallahassee, Fl 32399-0750
The Issue Whether or not Respondent engaged in gross negligence, incompetence, misconduct, and/or deceit in connection with the installation of a roof on a customer's home, either personally or by his failure to properly supervise the construction project and, if so, what, if any, administrative penalty should be imposed.
Findings Of Fact Petitioner, Construction Industry Licensing Board, is the state agency charged with the responsibility to regulate construction activities in Florida to include prosecuting administrative complaints filed pursuant to Chapters 489, 455 and 120, Florida Statutes, and the rules and regulations promulgated pursuant thereto. During times material hereto, Respondent, Norman Levinski, was licensed as a registered roofing contractor in the State of Florida, having been issued license number RC 0047656. At all times material hereto, Respondent was the licensed qualifying agent for All Bay Enterprises, Inc. On September 17, 1987, Respondent through the entity All Bay Enterprises, contracted with Opie and Elizabeth Tittle to remove and replace a built-up roofing system and shingle roof on the Tittle's residence located at 810 Audubon Drive, Clearwater, Florida. Respondent was paid the total contract price of $3280.00. Respondent completed the above roofing work on September 22, 1987. During the course of the work and after its completion, the Tittles continually expressed concern that the job was being done improperly and that they were not satisfied. Respondent made one attempt to correct the problems without success. Respondent dispatched a crew to the Tittle's home to try to remediate some problems on the roof; however, their efforts were unsatisfactory. Jack Hurlston, an expert in roofing, was retained by Petitioner to render an opinion on March 22, 1989. Hurlston visited the Tittle home and found numerous deficiencies in the roof. Specifically, Respondent failed to erect the Tittles' roof in conformity with the minimum standards of the Southern Building Code and usual industry standards in that there was insufficient lap at the joints in the eave drip, the starter course was nailed too high above the eave, shingles did not lay flat due to the use of improper asphalt, underlying felt was wrinkled and "telegraphed" through shingles, shingles were improperly nailed and three nails were used in each shingle as opposed to the customary four, as required by the manufacturer. No base flashing was used where shingles abutted, no plastic roof cement was placed around the electric riser to form a seal, the valley metal was cut too short and nailed too far from the center, the roof edges on the gable ends were nailed too far from the edge, exposed nails and cutout areas were observed. In the built-up roof, the aluminum coating was applied too soon after the base roof was installed and was therefore insufficient to provide either weather protection or heat reflection. W.L. Albritton, who was received as an expert in roofing, was retained by the Tittles to inspect the roofing job completed by Respondent. Albritton's inspection revealed the following deficiencies: Starter course shingles were uneven, in that they were nailed from 1 3/4" to 3" inches to the edge of the eave drip. Additionally, some nails in the starter course were found at the cutout (water course) of the first weather course of shingles at the eave. Discoloration was noted along the top edge of the fascia, but below the bottom of the drip edge, suggesting that a 1" x 2" wood drip strip was removed by Respondent and was not replaced. The metal drip edges were nailed at approximately 18" on center and 8" to 10" nail spacing is usual and customary in the roofing industry. The horizontal alignment of the shingles was uneven. The shingle roof was not installed according to the manufacturer's specifications and therefore did not conform with the Southern Standard Building Code. The specific deviations from the manufacturer's specifications are as follows: The manufacturer requires that two layers of number 15 asphalt saturated felt be installed in shingle fashion on roofs below 4:12, such as the Tittle's roof. Respondent here installed one layer of number 30 felt on the Tittle's roof. Next, the manufacturer requires the drip edge metal to be installed under the felt at the eaves of the roof or if installed on top of the felt at the eaves, that roof cement and felt stripping be applied over the roof end of the drip edge metal. Respondent installed the drip edge on the top of the felt at the eaves and did not strip, the roof over the roof end. The manufacturer recommends nail spacing of 8" to 10" for anchoring drip edge metal, whereas Respondent anchored the drip edge metal at 18" on center. The Standard Building Code requires an end overlap of 1 1/2" on metal edge flashing, whereas Respondent overlapped the end joist 1/2" at most end joints. The manufacturer specifies that close cut valleys should be nailed no closer than 6" to the center life of the valley and that the cut side shall be trimmed a minimum of 2" above valley center lines, whereas Respondent nailed to within 4" of the valley center line and the cut shingle edge was made at the valley's center line. The manufacturer requires four nails in each shingle, whereas Respondent nailed some shingles with only three nails and placed nails too close to water cutouts and placed some nails as high as seven inches above the bottom edge of the shingle. Next, the manufacturer requires that sufficient shingles be installed at pipe penetrations so that it will be necessary to cut a hole in one shingle to fit over or around the pipe before installing the pipe flashing, whereas Respondent failed to install sufficient shingles before installing the pipe flashings, and the flashings, as installed, are more susceptible to water leakage. Respondent slit the face of the metal drip edge and failed to provide backup protection for the fascia creating a situation that will promote rotting of the fascia. Respondent installed the shingles over wrinkled felt, underlayment and the wrinkles in the underlayment are "broadcasting" through the shingles, which creates a rough appearance to the entire roof and cannot be corrected without complete removal of the roof. The ply sheets on the flat roof specified by Respondent was to be of a 3-ply application, whereas it measures between 11" and 12" between edges of the sheets. Respondent therefore did not apply a full three plies on the flat roof. The Standard Building Code requires 1 1/2" overlap on edge joints of drip metal, whereas Respondent installed the drip edge metal with overlap and joints ranging from 3/4" to 3 1/4". Respondent failed to provide sufficient felt stripping over the roof flange of the metal drip edge at the rake edge of the flat roof. Respondent did not install the ply sheets using full moppings of asphalt and pi' is occurring at the edges of the ply sheets. Respondent installed shingles too low onto the flat roof, did not use a starter course of shingles, the felt underlayment is exposed between the cutouts and solar radiation is likely to degrade the felt underlayment. Additionally, the roof will be prone to leakage at such locations. Respondent failed to install flashing where required, used old flashing when new flashing was promised and failed to close openings that would allow wind-driven water to leak into the interior of the Tittles residence and/or the roof.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that: 1. Petitioner, Department of Professional Regulation, Construction Industry Licensing Board, enter a Final Order imposing an administrative fine against Respondent in the amount of $500.00 and suspending his license for a period of six (6) months. 1/ DONE and ENTERED this 15th day of February, 1990, in Tallahassee, Leon County, Florida. JAMES E. BRADWELL Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 15th day of February, 1990.
The Issue Whether Respondent's registered roofing contractor's license should he revoked, suspended or otherwise disciplined based on charges that he violated Ch. 455, Florida Statutes (1979), by (1) abandoning a construction project; making a misleading, deceptive or untrue representation in the practice of his profession; (3) violating local building codes in two instances; and (4) engaging in the business of contracting in a county or municipality without first complying with local licensing requirements.
Findings Of Fact At all times material hereto, respondent held registered roofing contractor's license, number RC 0033215, issued by the State of Florida. The license has been in a delinquent status since July 1, 1981. (Petitioner's Exhibit 1). Between October 1, 1979, and September 30, 1980, respondent held an occupational license issued by the County of Indian River, Florida, which enabled him to engage in the business of roofing contracting in that county. However, this occupational license expired on September 30, 1980. (Petitioner's Composite Exhibit 9). In February, 1981, respondent entered into a verbal agreement with Ezra Grant to repair, for compensation, all leaks in the front and rear sections of the roof on Grant's home, which was located in Sebastian, Florida. (Testimony of Grant). When respondent and Grant entered into this verbal agreement, respondent gave Grant one of his calling cards. On the face of the calling card, in the lower right corner, was written "licensed and insured." (Petitioner's Exhibit 4; Testimony of Grant). At all time material hereto, respondent was not licensed to engage in the business of roofing contracting in the City of Sebastian, Florida. (Petitioner's Exhibit 5). Pursuant to the agreement, respondent performed roof repairs on Grant's home. (Testimony of Grant). Respondent failed to obtain a permit to perform such roof repairs in violation of Section 105.1, Standard Building Code, as adopted by the City of Sebastian, Florida in Section 7-16, Article II, Sebastian Code of Ordinances. (Petitioner's Exhibits 6 and 8a and b). On February 19, 1981, respondent submitted a bill in the amount of $800.00 to Grant for the roof repairs. The bill described the work performed and stated that the "work is guaranteed for 1 year." (Petitioner's Exhibit 2; Testimony of Grant). On February 20, 1981, Grant paid respondent, in full, for the described roof repairs. (Petitioner's Exhibit 3). Approximately two weeks after respondent performed the roof repairs, the roof over the rear portion of Grant's home began to leak, again, in the area where it was repaired. (Testimony of Grant). Respondent returned to Grant's home, on two occasions1 after the discovery of continuing leakage in the roof over the rear portion of Grant's home. However, respondent did not perform roof repairs on either occasion. On the first occasion, he merely removed equipment which he had left at Grant's home. (Testimony of Grant). After Grant complained to petitioner Department of Professional Regulation, respondent returned a second time. He inspected the rear portion of Grant's roof, removed two layers of slate from the roof, and tested it by pouring water over it. Although this test revealed that Grant's roof still leaked, Grant made no effort to repair the leakage. (Testimony of Grant). Arthur Mayer, then the Building Official for the City of Sebastian, observed respondent removing the slate from the roof. He instructed respondent that, upon finishing the work, he should go to the Sebastian City Hall and apply for a roofer's license and a permit for the roof repairs already performed on Grant's home. Respondent promised to comply. (Testimony of Mayer). But, despite his promise, he failed to apply for and obtain a license to engage in the business of roofing contracting in the City of Sebastian, Florida. He also failed to apply for and obtain a roof permit, and pay the proper late fees, as required by Section 107.2, Standard Building Code, as adopted by the City of Sebastian, Florida, in Section 7-16, Article II, Sebastian Code of Ordinances. (Testimony of Mayer; Petitioner's Exhibits 6, 8a and c). Grant, eventually, had his roof repaired by another contractor at a cost of $150.00. (Testimony of Grant).
Recommendation Based on the foregoing, it is RECOMMENDED: That respondent's registered roofing contractor's license be revoked. DONE AND ORDERED this 28th day of February, 1983, in Tallahassee, Florida. R. L. CALEEN, JR. 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 28th day of February, 1983. COPIES FURNISHED: Stephanie A. Daniel, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Jerry E. Smith Route 1, Box 111B Fellsmere, Florida 32948 James Linnan, Executive Director Construction Industry Licensing Board P. O. Box 2 Jacksonville, Florida 32202
The Issue The issues in this case are whether Respondent engaged in the unlicensed practice of contracting, and, if so, what penalty should be imposed.
Findings Of Fact The Department is the state agency responsible for, inter alia, licensing and monitoring general contractors. Department headquarters are in Tallahassee, Florida. Part and parcel of the Department's duties is the sanctioning of persons who practice general contracting without a license. Respondent is an individual living in Tampa, Florida. Respondent did not appear at final hearing and has not filed any post-hearing motions concerning his failure to appear. The Administrative Complaint filed by the Department makes the following allegations: Respondent was not registered or certified to engage in the practice of contracting. Respondent, doing business as J.D.S. Roofing, contracted with Vivian Virgil to perform certain roofing work, specifically, to remove and replace shingles and related work to reconstruct the roof on Virgil's home. A contract between the parties dated April 21, 2006, was signed by Virgil and Respondent (or his authorized representative). Virgil made two payments to Respondent in the amounts of $2,500.00 (via check number 1037) and $1,564.46 (via check number 1040). She also made a payment of $2,860.54 to The Home Depot to pay for materials ordered by Respondent for Virgil's roofing repairs. Respondent then made the contracted-for repairs and replacement of Virgil's roof pursuant to the contract.2 Virgil, however, was not pleased with the quality of the work. She is unable to get a warranty on the roof because Respondent's work was inferior. Virgil must have another contractor re-do the roof in order to get a warranty. Neither Respondent nor his company, J.D.S. Roofing, is or has ever been licensed by the State of Florida as a contractor. However, Respondent held himself out as a general contractor in his dealings with Virgil.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered by the Department of Business and Professional Regulation finding that Respondent, James Delaughter, is guilty of the unlicensed practice of contracting and imposing a fine of $5,000.00. DONE AND ENTERED this 8th day of April, 2008, in Tallahassee, Leon County, Florida. R. BRUCE MCKIBBEN 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 8th day of April, 2008.
The Issue Whether Respondent's contractor license should be disciplined for alleged violations of Chapters 489 and 455, Florida Statutes.
Findings Of Fact Respondent, James Cooper, was at all times material to this action licensed by the State of Florida as a registered roofing contractor, having been issued license number RC0066905. Mr. Cooper's license is currently classified "Inactive, Issued (09/05/97)." Around March 1, 1996, Marshall Moran was contacted by Julia Jones regarding repairs to the leaky roof on her home located at 209 Cresent Drive, DeFuniak Springs Walton County, Florida. Ms. Jones' home was over one hundred years old with a steep metal roof. The roof she wished repaired was over the enclosed sleeping porch of her house. Over the last ten years, she had various contractors attempt to fix the leak in the sleeping porch roof. These attempts occurred, on average, more than one time per year. The leak always returned. Marshall Moran is an unlicensed and unregistered roofing contractor. Mr. Moran has been a roofing contractor since before the licensure requirements for contractors became law. He elected not to become licensed under those statutes. However, he did have the experience and skills necessary to repair Ms. Jones' roof. Marshall Moran discussed the job with Ms. Jones. Mr. Moran recommended the entire section of the roof be rebuilt and described the anticipated repairs. Ms. Jones would not allow the entire section of roof to be repaired. She thought only the small section where the leak was apparent needed repair. Unknown to Ms. Jones and prior to beginning the work, Mr. Moran contacted Respondent to tell him of Ms. Jones' job and to see if Respondent wanted to do the job. Respondent couldn't do the job with his crew but offered to allow Mr. Moran to "work under his license." Respondent was pursuing a large commercial roofing contract around the same time as the events at issue here. He wanted to keep Moran's crew together in order to be able to complete the large commercial job. He held the crew together by enabling Moran to do the construction at Julia Jones' residence in consideration for taking legal responsibility for the Jones' job. Respondent did not hire Mr. Moran as his employee. Respondent knew Mr. Moran was not registered or certified to practice contracting. He also knew Mr. Moran was well qualified to perform the work on the Jones' job. Respondent admits that he knew that he should not pull permits for anyone, but that he did it just this one time in order to keep the crew together. On March 15, 1996, Respondent obtained City of DeFuniak Springs, Florida, building permit number 1379 for the roof repairs to Ms. Jones' residence. On the application for said building permit, Respondent represented himself (doing business as Cooper Roofing and Repair) as the contractor of record on the aforesaid project. Respondent intended to and did eventually take legal responsibility for the Jones' job. However, he did not supervise Mr. Moran or his crew. Additionally, Ms. Jones was never informed of Respondent's involvement. More importantly, Ms. Jones never contracted with Respondent for either Respondent or his company to perform roof repairs on her home. On March 21, 1996, Mr. Moran provided an estimate for repair of the portion of Ms. Jones' roof she felt needed repair. The estimate bears the name of "AAA Metal Works" and "Marshall Moran." AAA Metal Works was Mr. Moran's company. The estimate does not reference either Respondent or his company. The estimated cost to repair Ms. Jones roof was $2,785. Based on the estimate, Ms. Jones entered into a contract with Mr. Moran and AAA Metal Works to perform the repairs to her roof discussed above. Moran and his crew substantially completed the repairs to Ms. Jones' roof in a few days. However, the roof continued to leak after Moran and his crew ended their work. The continuing leak was not due to any incompetence on the part of Respondent or Moran. Ms. Jones paid for the repairs with two checks made out to AAA Metal Works. The checks were in the amounts of $3,500 and $4,350. Respondent did not receive any of the money for the Jones' job. His only expense was the fee for the building permit. All other expenses were paid for by Mr. Moran. At no time during the formation or performance of the contract with Marshall Moran did Julia Jones have any contact with or knowledge of involvement by Respondent. In fact, Respondent only drove by the job site one time. As indicated, the roof continued to leak. Ms. Jones contacted Mr. Moran on approximately 5-6 occasions notifying him of the continued leaks. Mr. Moran would return to Ms. Jones' home and inspect the problems, but was unable to stop the leaks to Jones' satisfaction. It is not clear whether Mr. Moran kept Respondent informed of these continued service calls. Approximately one year after completion of the initial repairs on Ms. Jones' roof, Respondent received a call from Ms. Jones' tenant and friend, Sharon Jenks, who called posing as a potential new client. Ms. Jenks had gotten Respondent's name from the building permit. Ms. Jenks called Respondent because the house was still leaking approximately one year after the repair was done and intervening visits by Marshall Moran had not fixed the problem. Ms. Jenks arranged for Respondent to visit Ms. Jones' home. Respondent did not recognize the house when he arrived and drove past it. When Ms. Jenks showed Respondent the building permit bearing his name, Respondent showed surprise. He returned the next day with Mr. Moran. Respondent, Mr. Moran, Ms. Jenks and Ms. Jones all met regarding the continued leaking. Respondent and Mr. Moran told Ms. Jones that the metal on the roof was "bad" and needed to be replaced to stop the leaks on the "sleeping porch." Understandably, Ms. Jones did not want to deal any further with Mr. Moran or Respondent and would not permit them to make the recommended necessary repairs. Ms. Jones sued both Respondent and Mr. Moran in a civil action styled: Julia R. Jones v. James K. Cooper and Marshall Moran, Case Number 97-0040-CC, in the County Court of the First Judicial Circuit in and for Walton County, Florida. Following a judge trial, a Final Judgment was entered in favor of Respondent and Mr. Moran on December 9, 1997. Mr. Moran was charged with contracting without a license in violation of Section 489.127, Florida Statutes (1995), in State of Florida v. Marshall Moran, Case Number 97-0549-CF, in the Circuit Court of the First Judicial Circuit in and for Walton County, Florida. That charge was dismissed by Circuit Judge Lewis Lindsey on February 3, 1998.
Recommendation Based upon the findings of fact and conclusions of law, it is, RECOMMENDED: That the Board should find Respondent guilty of violating Chapters 489 and 455, Florida Statutes, and impose an administrative fine of $500.00 on Respondent DONE AND ENTERED this 3rd day of August, 1998, in Tallahassee, Leon County, Florida. DIANE CLEAVINGER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 3rd day of August, 1998. COPIES FURNISHED: John O. Williams, Esquire Maureen L. Holz, Esquire Willams and Holz, P.A. 458 West Tennessee Street Tallahassee, Florida 32301 J. LaDon Dewrell, Esquire 207 Florida Place, Southeast Ft. Walton Beach, Florida 32549 Rodney Hurst, Executive Director Construction Industry Licensing Board Department of Business and Professional Regulation 7960 Arlington Expressway, Suite 300 Jacksonville, Florida 32211-7467 Lynda L. Goodgame, General Counsel Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792
Findings Of Fact At all times pertinent to the allegations obtained herein, Respondent was a registered building contractor holding license number RV0010136 issued by the State of Florida. His address was Route 4, Box 48-M, Lake City, Florida. On April 4, 1982, Respondent entered into a contract with Michael D. Allen of Route I, Box 453, Live Oak, Florida, for the construction of a single- family residence on the Allen property for a contract price of $75,476. The contract was finished sometime in January 1983, and the Allens moved in that month. During some high winds shortly after they moved in, several shingles blew off the roof, exposing the underlying tar paper. The next day after the storm, Allen went out and saw approximately three or four shingles on the ground. When he picked them up and looked at them, he saw that they had no nail holes or staple holes in them. Allen immediately pulled his tractor up to the house and stood on the seat so he could take a close look at the roof. When he did so, he found that he could not see a nail, staple or hole in the roof where these particular shingles had come from. In addition to that area denuded of shingles by the storm, Allen also lifted up a few other shingles and found what to him was evidence of improper installation. As a result, Allen went to a building supply house in the area and bought a package of the same shingles previously installed on his house by the Respondent in order to get the nailing instructions that came with them. Allen bought the shingles from the same supply house where Respondent had purchased the ones installed on his property. After examining the instructions which came with the shingles he purchased, Allen then called the office of the building inspector and spoke with the Chief Building Inspector, Mr. Pat Sura, who came out to inspect the roof. Allen went up on the roof with Sura and lifted several shingles in different places to see how they were affixed. In most cases, he found two staples in each shingle, but in some cases he found none. Of the 20 or so tabs he lifted (each shingle having three tabs), he found that some, but not many, were nailed in three places. Sura confirms the fact that he was called by Allen. After the call, Sura checked his files and found that the permit for construction of the house was issued to Allen with Respondent listed as the contractor. When the complaint came in from Allen, Sura asked Mr. Cherry, a Department investigator, to go out and look at it with him, as is his standard practice. Sura does not recall exactly when this was done, but it was shortly after the call from Allen. Sura went up on the Allens roof with Cherry and pulled up a few tabs to look for the nailing pattern. He found that the nailing pattern was misaligned, that a stapling gun was used, and that both staples and nails were, in his opinion, too short. Based on this viewing, Sura called a Mr. Canepa, who was a representative of the shingle manufacturer at the time, and asked him to inspect the roof himself. Canepa also found both nails and staples and pulled at least one of each out of the roof. He did not take many, however, because most of the shingles had only one or two fasteners per shingle. The ones that were pulled, however, were pulled from shingles that had four nails or staples in them. Sura also went into the attic on the first visit with Cherry and examined the roof from the inside. He found very few staples or nails protruding through the inside of the subroof. Approximately 40 percent of the nails were not showing through. Based on his examination, Sura concluded that approximately 70 percent of the shingles were not properly fixed, having three or less fasteners per shingle. Only 30 percent had four. These figures were based on spot samples from different sections of the roof. In Sura's opinion, it appeared to him that the staple gun used to apply the staples was out of order. The top of the staple is supposed to be horizontal to and flush with the top surface of the top shingle. Many of the staples and nails which he observed were not horizontal. In some cases, the cross piece on top of the staple extended as much as an eighth of an inch above the tab and had not been hammered down. In Sura's opinion, at least 70 percent of the staples he examined were in that condition. Unless the staple is flush with the roof, the result is that the staple does not go in far enough and also makes a raised area on the shingle. According to the standards of the National Asbestos Roofing Manufacturer's Association (NARA), either nails or staples are supposed to be inserted below the glue tab on the shingle approximately five-eights inch above the top of the cut-out. A fastener is supposed to be above the top of the cutout and on each end. This would result in four fasteners per shingle. Sura found that in most cases the fasteners were on the glue tab or above it, very few were below it. An examination of 24 separate shingles revealed that those which had four fasteners were either crooked, raised or in the wrong place and, of these, 40 percent were in the wrong place. The building code of Suwannee County does not contain detailed specifications of how shingles are to be installed. The code refers to other specifications, such as the NARA standards, and incorporates them by reference. On one of the visits Sura made to the Allen home, the Respondent was also present with at least one of his sons. At Sura's request, Respondent or his son gave Sura some staples which he said are the type used on this job. However, Sura's examination revealed that these staples are not like the ones he took out of the roof. The staples used in the roof were three- quarter inch staples. Sura contends the ones given him by the Respondent were one-inch staples. At the hearing, Respondent and both his sons testified that they used three-quarter inch staples and did not give Sura one inch staples. The likelihood is that the proper sized staples were used. The roofing of the Allen house was accomplished by using a one-half inch plywood decking (actually 15/32 inch). A sheet of felt is laid over the decking and the shingles laid over the felt. In some cases, the fastener is driven through all of that plus an additional tab as well. As a result, the fact that no staple or other fastener was protruding through into the attic is not necessarily pertinent, and the use of a three-quarter inch staple could be acceptable if it was installed properly. As to the flush nature of the staple, a slight variance is accepted. It was recognized that it is impossible to get an exactly flush installation. The degree of acceptable variance is a subjective call, however. The staple that was removed by either Sura or Canepa (there is some uncertainty as to who pulled the staple but no uncertainty that one of the two actually accomplished that task) was protruding approximately one-eighth inch above the surface of the shingle. Gordon K. Perry, Respondent's son and employee, worked on the Allen house as the roofer. He, another brother, and a third employee worked as a team to install the roof, with his brother on the lower line, himself in the middle, and the other employee-on the upper line. As he and his associates laid the shingles, Perry, as the man in the middle, affixed them to the roof with a stapling gun. Perry indicates that he installed the shingles exactly as called for in the instructions contained on the wrapper around the shingles as they come from the manufacturer. Perry contends he used four staples to each shingle, and always does, but admits he might have missed one once in a while. Perry tried to affix the staples so they are flush with the shingles, but admits he might have missed one once in a while. If the gun misfires and leaves it protruding above the shingle, he and his team members all had hammers with which they would hammer the protruding staple down flush with the shingle. He contends he had no trouble installing this roof and that the gun he used was working properly. This testimony was confirmed by that of the other son, Frederick L. Perry, who also indicated that the crew followed the instructions on the wrapper for the installation of the shingles with one exception at the corner a staple was driven through two shingles instead of one. This procedure would however, in his opinion, at least meet the requirements and he feels even exceed them. He observed the way his brother was stapling the shingles on the Allen roof and could see nothing wrong with the procedure followed. His father, the Respondent, came to the job site frequently during the three days it took to install the Allen's roof and actually came up on the roof to observe but did not do any of the actual installation work. He explains the reason for the four or five loose shingles dislodged by the wind as being the result of the air hose for the staple gun getting caught under the tabs of these several shingles while the crew was working with the gun on the other side of the roof. When Mr. Perry observed what had happened he told the employee to go back to that area, put the tabs down and tack them down. Unfortunately, he did not check to see if that was done. He subsequently found out that the employee put the tabs back down but did not affix them as instructed. When he, on this later occasion, checked this area, he saw that where the shingles had broken loose, the nails were still in the roof and the felt was still there. Finding some broken shingle pieces on the lawn, he used them to make a temporary patch for the roof fully intending to report this situation to his father immediately. He did not have an opportunity to make the permanent repair did not feel he should do so without his father's instructions. Not withstanding his father's knowledge of the situation, he received no instructions from his father to make the repairs. The final and permanent repair was accomplished approximately a week prior to the hearing after the granting of the first continuance. On that occasion when he checked the other shingles, Perry found four staples in every shingle that he checked and they were, for the most part, properly flushed. Ron W. Williams, a building contractor registered in Lake City and coincidently a member of the Board of County Commissioners, also examined the Allen's roof on June 19, 1984. Independently he went up on the roof, pulled back tabs and looked at the shingles and their method of affixing in five different locations on the roof. He could see nothing wrong with how the shingles were installed and attempted to pull several staples using a pair of pliers and screwdriver. The difficulty he experienced in extracting the shingles is, in his opinion, an indication of how well they were installed. None that he saw were raised up. Some were at a permissible angle. Mr. Williams found anywhere from 7 to 8 staples in each shingle consisting of 3 or 4 staples across the top of each shingle plus fasteners from the higher shingle as well. In his opinion the roof looked good. The lines were straight, there was no waving. He could see no indication of any problem with the shingles or of weakness or that the shingles would be subject to wind removal. Another contractor who made his inspection at the same time was D. B. Espenship, a 35 year building contractor in Lake City, who has during his career constructed in excess of 500 homes. Mr. Espenship also independently went to 5 or 6 different areas on the Allen roof and pulled up the shingle tabs. He saw nothing to indicate any problems with the way the shingles were applied. The roof looked good, the lines were straight, staples flush and the angles not bad. David Morgan, a licensed roofing contractor in Lake City for more than 15 years does mostly residential roofing including shingles. On the same date as the others described, supra, he also went up on the roof .and watched Mr. Williams do his inspection. He also did his own inspection as well. When Mr. Morgan lifted the tabs he saw the staples and could see nothing to indicate that they were improperly installed. He could see no code violations nor could he see any potential problems. The roof was in excellent shape. In fact, "about as good as you could get." Mr. Perry, Respondent, first learned of the problems with the Allen roof when he was contracted by Mr. Cherry to go out and look at it. This was shortly after the storm which removed the shingles. Cherry asked Respondent to meet with Mr. Allen and Mr. Sura at the premises. When he arrived, no one showed up. However, at approximately a half hour later, Mr. Sura came up without Mr. Cherry. Mr. Sura would not go up on the roof. He said that at that time it was "out of his hands". The matter was in the hands of Mr. Allen and Mr. Cherry. In any case, Respondent went up on the roof as requested and lifted several shingles, but could find no problem. Thereafter, when Respondent called Mr. Cherry, Cherry said he would have to talk to Mr. Sura about it. Mr. Sura indicated he would ;nail respondent a copy of Mr. Canepa's report, but he never received it. In fact until he got the administrative complaint through the mail, he contends he could never get a straight complaint from anyone. He tried to get together with Mr. Allen on several occasions, but in his opinion, could not seem to satisfy him. Respondent also went up on the roof June 19 to make another inspection. At this late date, even in light of the administrative complaint he can still find nothing wrong with the roof. The lines are straight, the proper number of staples are installed and they are installed properly. The roof is in his opinion good and he, on the record, guaranteed to replace it if, with the exception of tornado damage, the roof blows off within the next 18-20 years. Mr. Perry has been a building contractor since 1966. He does all types of construction including the construction of between 300 and 400 homes over the years. Normally he does all the work within the firm. If they are very busy however, he subcontracts some. In this case, the Allen home was built "in-house" and he, himself, worked along with his workmen. He is, in addition to being a contractor, an ordained minister in the Baptist church in Lake City and has been so for the past 20 years. He does not know Mr. Canepa and knows of no reason Mr. Canepa would have to lie. The same is true of Mr. Sura. He feels that both individuals just did not examine the roof closely enough. He contends they are mistaken in their description of the roof's condition. Mr. Sura contends that the building code in this case was violated by respondent in the following particulars; violation of the provisions of the Southern Standard Building Codes: The use of 3 or less fasteners; Placing the nails or fasteners either on or above the glue tab, Failure to have the tops of the fasteners flush with the surface of the shingle; and Failure to have the top of the staple parallel to the shingle line. All these defects were brought to the attention of the Respondent in August, 1983. No corrective action was taken until one week prior to the hearing. On balance, considering the relative probabilities and improbabilities of the testimony of the witnesses and their interest in the outcome of the proceedings, or their lack thereof, it is found that Respondent, through his roofing crew, improperly installed a large number of shingles on the Allen roof.
Recommendation Based on the foregoing, it is, therefore. RECOMMENDED That Respondent, Fred Perry, be reprimanded and pay an administrative fine of $1,000.90 which fine shall be remitted up a positive showing by affidavit of the owner or County Building Inspector that the roof defects have been corrected. DONE and RECOMMENDED THIS 10th day of August, 1984, in Tallahassee, Leon County, Florida. ARNOLD H. POLLOCK Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 10th day of August, 1984. COPIES FURNISHED: Douglas A. Shropshire Staff Attorney Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 (904) 488-0062 Terry McDavid Post Office Box 1328 Lake City, Florida 32056 Fred Roche, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 James Linnan, Executive Director Department of Professional Regulation Construction Industry Licensing Post Office Box 2 Jacksonville, Florida 32202 =================================================================
