The Issue The issues in Case No. 07-4376PL are whether Respondent violated Subsections 489.129(1)(i), 489.119(2), 489.126(2)(a), and 489.129(1)(j), (m), and (o), Florida Statutes (2004),1 and, if so, what discipline should be imposed. The issues in Case No. 07-4377PL are whether Respondent violated Subsections 489.1425(1), and 489.129(1)(i) and (o), Florida Statutes, and, if so, what discipline should be imposed.
Findings Of Fact Petitioner is the state agency charged with regulating the practice of contracting pursuant to Section 20.165 and Chapters 455 and 489, Florida Statutes. Mr. Roach is, and was at all times material to this action, a certified roofing contractor in the State of Florida having been issued License No. CCC1326005. Mr. Roach's Certified Roofing Contractor License No. CCC1326005 is current and active. Mr. Roach's current addresses of record are Post Office Box 345, Orange Springs, Florida, and 22204 U.S. Highway 301, Hawthorne, Florida. At all times material to this action, Mr. Roach was a licensed qualifier for All Florida Roofing Contractors, Inc. (All Florida). There is evidence in the record sufficient to establish that Mr. Roach has been previously disciplined for a violation under Chapter 489, Florida Statutes. Notably, Mr. Roach has been previously disciplined for, among other things, violations of Subsections 489.129(1)(m) and (o), Florida Statutes. Case No. 07-4376PL Mr. Roach failed to obtain a Certificate of Authority for All Florida, as required by Subsection 489.119(2), Florida Statutes. On or about August 23, 2004, Mr. Pang contracted with Mr. Roach, to remove and replace the hurricane-damaged roof of his hotel property located at 1620 West Vine Street, Kissimmee, Florida. The contract price for the aforementioned project was $40,000.00. Mr. Pang made an initial payment of $2,250.00 on August 22, 2004, and another payment of $20,000.00 on August 23, 2004. As part of the contract, All Florida was required to pull the building permits for the project, and Mr. Roach failed to do this. Mr. Roach commenced work on the project on or about September 7, 2004. On or about late September 2004, he ceased work on the project, and the project remained unfinished. Mr. Pang paid All Florida an additional $10,000.00 on September 16, 2004. On October 1, 2004, the City of Kissimmee issued a Notice of Violation against Mr. Pang for failure to have a building permit for the work that had been performed by Mr. Roach on the roof. Mr. Roach scheduled repairs on the project, but did not return to the project. Mr. Roach did not have any inspections performed on the roof. Later, another contractor hired by Mr. Pang finished the roofing project at a cost of an additional $32,975.00. Case No. 07-4377PL On or about September 15, 2004, Ms. Perez contracted with Mr. Roach to repair roof damage to her residence at 1502 Golden Poppy Court, Orlando, Florida. The contract price for the aforementioned project was $7,268.32, of which Mr. Roach was paid $3,634.16 on September 18, 2004. The contract entered into between Ms. Perez and Mr. Roach failed to inform the homeowner of the Construction Industry Recovery Fund. On or about October 27, 2004, the Orange County Building Department issued Mr. Roach a permit for the aforementioned project (Permit No. T04018050). Mr. Roach did not have any inspections performed on the roof. On September 25, 2004, Ms. Perez paid $3,614.16 to All Florida, which was the remaining amount of the contract. Another contractor was hired by Ms Perez to correct deficient aspects of Mr. Roach's work on the roof at a cost of $900.00.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered whose outcome is the following: That in Case No. 07-4376PL Respondent violated Subsections 489.129(1)(i), (j), (m) and (o), Florida Statutes; Dismiss Count II of the Administrative Complaint in Case No. 07-4376PL; In Case No. 07-4376PL, imposing an administrative fine of $1,000.00 for the violation of Subsection 489.129(1)(i), Florida Statutes; imposing an administrative fine of $5,000.00 for the violation of Subsection 489.129(1)(j), Florida Statutes; imposing an administrative fine of $2,500 for the violation of Subsection 489.129(1)(o), Florida Statutes; no administrative fine is recommended for the violation of 489.129(1)(m), Florida Statutes, because the violation is included in the violations of Subsections 489.129(1)(j) and (o), Florida Statutes; That in Case No. 07-4377PL, Respondent violated Subsections 489.129(1)(i) and (o), Florida Statutes; In Case No. 07-4377PL, imposing an administrative fine of $1,000 for the violation of Subsection 489.129(1)(i), Florida Statutes; imposing an administrative fine of $2,500 for the violation of Subsection 489.129(1)(o), Florida Statutes; Requiring Respondent to make Restitution to Mr. and Mrs. Pang in the amount of $25,000; Requiring Respondent to make Restitution to Ms. Perez in the amount of $900; and Revoking Respondent's contractor license. DONE AND ENTERED this 31st day of March, 2008, in Tallahassee, Leon County, Florida. S SUSAN B. HARRELL Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 31st day of March, 2008.
The Issue Whether Respondent, Glenn V. Curry, committed the offenses alleged in the Administrative Complaint and, if so, what discipline should be imposed against Respondent's roofing contractor's license.
Findings Of Fact At all times pertinent to this proceeding, Respondent, Glenn V. Curry, was a certified roofing contractor having been issued license C-3810. During times material hereto, Respondent was the qualifying contractor for Economic Roofing Company, 2538 Surinam Court, Holiday, Florida. On or about December 27, 1995, Connie Socash, an investigator with the Pinellas County Construction Licensing Board, observed two individuals performing roofing work on the structure located at 2024 Cleveland Street in Pinellas County, Florida. Adjacent to the Cleveland Street property was a truck from which the individuals were working. Affixed to the truck was a magnetic sign with the words "Economic Roofing" printed on it. When approached by Ms. Socash, the two people performing the roofing work stated that they were subcontractors for Economic Roofing. One of the individuals performing the roofing work identified herself as Bonnie Sargent. However, neither of the individuals provided Investigator Socash with a roofing contractor's license or license number. After determining that Petitioner had not issued a roofing contractor's license to Bonnie Sargent, Investigator Socash issued a citation to the person identifying herself as Bonnie Sargent. The citation was issued to Ms. Sargent for subcontracting and performing "roofing work without a competency license as required by law." The citation, which was signed by Ms. Sargent, listed the following two options that were available to her: (1) pay a fine of $125.00 within a specified time period; or (2) appear at the Pinellas County Misdemeanor Courthouse on January 19,1996. Ms. Sargent chose the first option and paid the fine of $125.00 on or about January 9, 1996. After issuing the citation to Bonnie Sargent, Investigator Socash contacted Respondent regarding the Cleveland Street roofing project. Respondent refused to cooperate with Investigator Socash and failed to provide her with any information regarding the relationship of Bonnie Sargent to Economic Roofing. Prior to this case, Respondent has not been the subject of any disciplinary action by the Pinellas County Construction Licensing Board.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Pinellas County Construction Licensing Board enter a Final Order: Finding Respondent, Glenn V. Curry, guilty of violating Section 489.129 (1) (e), Florida Statutes, and Chapter 89-504, Section 24 (2) (d), (e), (j), and (m), Laws of Florida as alleged in the Administrative Complaint. Imposing an administrative fine of $750.00. Suspending Respondent's roofing contractor's certificate for one year. Such suspension may be stayed subject to terms and conditions prescribed by the Pinellas County Construction Licensing Board. DONE and ENTERED this 27th day of August 1996, in Tallahassee, Florida. CAROLYN S. HOLIFIELD 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 27th day of August, 1996. COPIES FURNISHED: William J. Owens Executive Director Pinellas County Construction Licensing Board 11701 Ulmerton Road Largo, Florida 34643-5116 Glenn V. Curry 2538 Surinam Court Holiday, Florida 34691 Howard Bernstein, Esquire County Attorney's Office 315 Court Street Clearwater, Florida 34616-5165
The Issue Whether Mr. Masiero is guilty of gross negligence in reroofing work he performed, and misconduct by failing to honor a guarantee given in connection with that work?
Findings Of Fact Mark Masiero was the qualifying agent for All Florida Roofing Company. Mr. Masiero entered into a contract, on behalf of All Florida Roofing Company, with Cristobal Sotolongo of Miramar, Florida, on January 19, 1987 According to the contract Mr. Masiero would [r)emove the roof at the address above down to wood sheathing or smooth, workable surface and haul all debris away (Department Exhibit 1) and install a hot tar roof on a flat deck. The company further gave a guarantee which read: The company guararitees its workmanship for ten years. It will replace faulty materia1 or faulty workmanship within the period of the guarantee free of charge (Department Exhibit 1). Mr. Sotolongo paid $700 at the time the contract was executed. The total price was to be $2,500. Mr. Sotolongo thereafter paid All Florida Roofing Company an additional $1,600. Mr. Sotolongo received a job invoice from All Florida Roofing Company signed by Mark Masiero on March 14, 1987, showing payment in full for the roofing work. Two hundred dollars had been deducted from the contract price for damage done to a patio screen and popcorn ceiling at the Sotolongo residence during the roofing work. After the work was completed, Mr. Sotolongo had a leak in his bedroom. Mr. Masiero returned and put some tar on the roof, but it still leaked. As a result of the leak Mr. Sotolongo lost the ceiling in the bedroom. He called Mr. Masiero repeatedly in an attempt to have the leak repaired and ultimately retained a lawyer, Steven M. Rosen, who wrote to All Florida Roofing Company on Mr. Sotolongovs behalf to complain about the failure to honor the guarantee and perform remedial work. After he received no reply to his lawyer's letter from Mr. Masiero or All Florida Roofing Company, Mr. Sotolongo received estimates for roof repairs from a number of roofers, including Professional Roofing, Inc. of Hollywood, Florida, Pioneer Roofing Company, Inc. of Hollywood, Florida, Universal Roofing, Inc. of Hollywood, Florida, and Gory Roofing, Inc. of Hollywood, Florida. A roof inspection was also provided by Gory Roofing. The reroofing was done by Gory Roofing, Inc. at a cost of $1,500. The problem with the roofing work done by All Florida Roofing Company and Mr. Masiero was that the work did not conform to the contract, in that the old roof had not been removed down to the wood sheathing or to a smooth workable surface. The old roof had been a tar and gravel roof. Lengths of 2 x 4 lumber had been placed around the perimeter of that roof and 1 1/2" to 2" of concrete had been poured on that old roof; the old tar and gravel roof had been placed over the concrete. Mr. Masiero and All Florida Roofing Company had not removed the underlying concrete roof or an older tar and gravel roof below it. This caused the leaking. The repair work done by Gory Roofing, Inc. included removal of the old roofing system, and application of a new roof. After that work, there have been no leaks from the roof.
Recommendation It is recommended that Mr. Masiero be found guilty of violations of Section 489.129(1)(j) and (m), and that he be fined $2,250. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 23rd day of March, 1990. WILLIAM R. DORSEY, JR. 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 23rd day of March, 1990. COPIES FURNISHED: Robert G. Harris Department of Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792 Mark Masiero 6631 Southwest 26th Court Miramar, Florida 33023 Kenneth D. Easley, General Counsel Department of Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792 Fred Seely, Executive Director Construction Industry Licensing Board Department of Professional Regulation Post Office Box 2 Jacksonville, Florida 32202
Findings Of Fact At all times material to these proceedings, the Respondent LARRY DAVID COMES, was licensed by the State of Florida as a registered specialty contractor and held license number RX00400762. Mr. Comes is the qualifying agent for D & L Enterprises. At all times material to these proceedings, the Respondent CHARLES J. GOREE was licensed by the State of Florida as a certified general contractor and held license number CG C007621. Mr. Goree is the qualifying agent for CJC Incorporated. In the beginning of the year 1985, the Island Village Association decided to reroof all six buildings located in the condominium project. At the time of the decision, all of the roofs were leaking. The existing roofs had been repaired and patched numerous times since the condominiums were built in 1973. On February 27, 1985, the Respondents COMES and GOREE submitted a joint proposal to the association to remove the existing built-up roof, apply a Neoprene/Hypalon roof, and remove and reshingle the mansard roof for $19,865.00. On April 15, 1985, a written contract was entered into between Island Village Condominium Association and David L. Comes, d/b/a D & L Enterprises, as contractor for the reroofing of Building "C." The Contract required the contractor to furnish all materials and labor to remove the existing built-up roof. Rotten wood on the deck was to be replaced on a time and materials basis. Damaged scuppers were to be replaced and other scuppers were to be cleaned out by the contractor. The Neoprene/Hypalon system would then be applied to the flat roof and the parapet walls. The mansard roof was to be removed and reshingled. Although Charles J. Goree, d/b/a CJC Incorporated, was not named in the contract, the omission was an oversight. At all times during the course of the reroofing project, the Respondent GOREE was responsible for the removal of the existing built-up roof and the application of new shingles to the mansard roof. The Respondent COMES was responsible for the application of the Neoprene/Hypalon roofing system. The reroofing project was a joint undertaking in which Respondents GOREE and COMES exercised equal authority, joint control, or right of control. The Respondents had a community of interest in the performance of the contract with the association. Respondents GOREE and COMES were familiar with what was required of each of them under the verbal joint venture agreement as they had conducted business in the same manner over an extended period of time on several projects. On May 10, 1985, Respondent GOREE applied for and received a building permit for the reroofing of Building "C" at Island Condominiums. During the removal of the built-up roof, GOREE observed "an absolute mess and disaster." The roof had been patched in various ways on numerous occasions. GOREE observed a few "T nails" in a piece of metal stripping picked up with shovels on the roof. The "T nails" discovered were the type which are shot into materials from a nail gun. (See GOREE Exhibit #2) They are not used to secure plywood on a deck because of their short length. Another "T nail," such as GOREE's Exhibit 2, was found by GOREE lying on the area of the roof by the air conditioners. This area of the existing roof was not removed or disturbed during the reroofing process. In the application of his common sense and knowledge of good construction practices and in light of the material in which the "T nails' were located, Respondent GOREE was not put on notice that these "T nails" may have been used to fasten the plywood decking. The type of "T nail" which was used upon plywood roof decking a few years ago in Florida was longer, thicker, and shaped like an elongated wedge. (See GOREE Exhibit 4) None of the "T nails" formerly used for plywood decking were observed by GOREE on the roof. Once the built-up roof was removed, Respondent COMES acted within the terms of the joint venture agreement by applying the Neoprene/Hypalon roofing system in full compliance with the specifications as set forth in the contract with Island Village Condominium Association. During the application of the system, COMES and his crew did not observe any conditions on the plywood decking which would alert them to the possibility of any future problems with the system. On May 17, 1985, Mr. Jim Peaks, an Inspector for Brevard County, completed a "dry in" inspection of the roof on Building "C" which had been requested by Respondent GOREE. Mr. Peaks placed a stop order on the project because the Neoprene/Hypalon roofing system was not an approved product under the Southern Building Code which he believed was in effect in Brevard County on May 14, 1985. In actuality, the 1982 Standard Building Code was in effect at the time. Upon receipt of the stop order, Respondents COMES and GOREE went to the building department and met with Murray Schmidt, Mr. Peaks' supervisor. Mr. Schmidt had the authority to override Mr. Peaks' stop order. Mr. Schmidt, who was new to the county and his position, discussed the stop order with the Inspector. Mr. Peaks refused to remove his stop order because of the lack of code compliance. Mr. Schmidt verbally allowed the Respondents GORE and COMES to continue to work on the roof. Mr. Peaks was told to investigate the roofing system with the Southern Building Code Conference in Birmingham, Alabama. The Respondents were not notified again as to the status of the stop order, one way or the other. Because the Respondents had been told to continue the work on the roof by Mr. Schmidt, who had the authority to override stop orders, the Respondents reasonably assumed that a stop order was no longer in effect. In fact, the permit had the notation "See Murray" on it after the stop order notation. Upon completion of the project, Respondent COMES contacted the building department and requested a final inspection. In the usual course of dealing between contractors and the building department in Brevard County, a contractor is notified only if there is a problem with the project which needs correction before final approval. Neither COMES or GOREE received notification of a problem. Another recognized, usual course of dealing between a contractor and the building department is that the department notifies an owner or the contractor if a six month permit has expired and a final inspection has not been completed. GOREE was not notified of any permit expiration in this case. Again, the Respondents were given the impression by the inactivity in the building department that business was being conducted in the usual manner. The Respondents believed, based upon past and ongoing dealings with the department, that all of their obligations had been met on the reroofing project. On May 28, 1985, the final payment was received from Island Village Condominium Association and a limited warranty was issued in both Respondents' company names, pursuant to the contract with the association. Shortly after completing the job on Building "C," Respondent COMES was called to repair leaks in the new roof. COMES responded promptly and courteously, and placed the blame for the leakage on various factors such as: (1) The short "T" fasteners had begun popping through the Neoprene/Hypalon and destroyed its ability to prevent water penetration. (2) The roof had an inadequate drain system. (3) The plywood deck was bowed in a concave fashion due to the years of improper weight and excess water on the roof. During a meeting with the board of directors of the association requested by COMES, COMES offered to put on a new roof if the board would install sump pumps to remove standing water. The board rejected COMES offer and authorized the condominium property manager to seek other solutions. The Respondents were not contacted by the board again concerning alternative solutions to the problem. In June of 1986, Mr. Rex Lahr, the condominium property manager, began a review of the roof situation. After consulting with Mr. Tom Butler of the county building department, Mr. Lahr decided that an architect needed to be retained by the association to determine whether a structural deficiency or the new roofing system caused the leaks in the roof. An architect was not hired by the association. A traditional, built- up roof was applied over the Neoprene/Hypalon roofing system. In the application of the new roof, the drainage system was redone and the flat roof was given pitch, thereby redesigning the roof as well. Mr. Robert B. Hilson, who was tendered as an expert witness in the case, opined that the Respondents COMES and GOREE failed to properly determine whether the roof deck was in a condition to accept the Neoprene/Hypalon system. Mr. Robert H. Adams, who was tendered as an expert witness in the case, opined that the leaks which developed soon after the application of the Neoprene/Hypalon system indicated that the deck was not in a condition to accept the system. Although there is some basis in fact for the opinions rendered by the two experts, their opinions must be rejected for the following reasons: (1) The experts did not personally observe the building, nor was a determination made which would exclude the possibility that the roofing system failed as a result of structural or design defects. (2) There is ample evidence in the case to support a finding that the leaks were caused by structural or design defects, as well as latent defects not readily observable to the Respondents at the time the roofing system was applied, and outside the terms of the reroofing contract. Some examples of evidence which support a finding that the leaks were caused by structural or design defects are: (1) Mrs. Delores Hammels' testimony that all six buildings had to be reroofed as they all leaked periodically throughout their 12 years of existence; (2) the redesign of the drainage system and the placement of a pitch on the roof by Mr. Roush; (3) the testimony and sketch submitted by Respondent GOREE (GOREE Exhibit #5) which shows that an identical building with a pitch on the roof allows the drainage system, including the internal hidden piping system, to work correctly. The effective redesign of the roof by Mr. Roush confirms this theory as much as, or more than, Mr. Robert H. Adams' theory that the deck was not in a condition to accept the Neoprene/Hypalon system.
Findings Of Fact Based upon my observation of the witnesses and their demeanor while testifying, the documentary evidence received, and the entire record compiled herein, I hereby make the following relevant findings of fact: By its Administrative Complaint signed December 1, 1981, Petitioner, Construction Industry Licensing Board, herein sometimes referred to as the Board, seeks to suspend, revoke or take other disciplinary action against the Respondent as licensee and against his license as a certified roofing contractor. Respondent is a certified roofing contractor and has been issued license number CC C012016 (Petitioner's Exhibit #1) Pursuant to an application filed by Respondent during December, 1978, Respondent qualified Gold Coast Roofing as the entity through which he would perform his construction activities as a certified roofing contractor. Respondent incorporated Gold Coast Roofing, (sometimes called Gold Coast or the Company), in February, 1980 as Jesnoe Enterprises, Inc., with his father Albert and brother, Albert III, as the other corporate members/owners. On December 19, 1980, Respondent and the other corporate owners wanted to get out of the roofing business and sold it (Gold Coast Roofing) to John and Shirley Kelly, pursuant to a stock sale-purchase agreement dated December 19, 1980. Part of the sale-purchase agreement contained a provision for Respondent to remain on as qualifier for the company until Respondent's brother, Albert III, was licensed and eligible to qualify the entity. Respondent remained as qualifier for the company until March 6, 1981. Prior thereto, on February 24, 1981, Gold Coast Roofing entered into a contract with Mrs. G. Frieder to reroof her residence for the sum of seven thousand three hundred ($7300) dollars. Mrs. Frieder made a twenty four hundred ($2400) dollar deposit made payable to Gold Coast Roofing by check drawn on the Intercontinental Bank, Surfside Branch, Surfside, Florida dated February 24, 1901. Gold Coast Roofing did not perform any of the reroofing work it contracted to perform for Mrs. Frieder. The new aners of Gold Coast disappeared shortly after receiving the twenty four hundred ($2400) dollar deposit from Mrs. Frieder. Respondent has never met Mrs. Gertrude Frieder nor did he have any other contractual dealings with her other than an after-the-fact contact made when civil suit was initiated by Mrs. Frieder joining the Respondent as a party to the civil litigation. The new owners of Gold Coast Roofing have made no further contact with Mrs. Frieder since the deposit check was negotiated and the Respondent is unaware as to their whereabouts. Finally, Respondent has not been the subject of any prior disciplinary action by the Petitioner since he was first licensed in October, 1977. The Respondent's license is active through the 1981-83 licensing period (Petitioner's Exhibit Number 1)
Recommendation Based on the foregoing findings of fact and conclusions of law, it is hereby RECOMMENDED that the Petitioner issue a letter of public reprimand to the Respondent based on the facts and conclusions found herein above. RECOMMENDED this 4th day of October, 1983, in Tallahassee, Florida. JAMES E. BRADWELL, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 4th day of October, 1983.
The Issue The issues to be determined are whether Respondent violated the charged provisions of Section 489.129, Florida Statutes (2006), and if so, what penalty should be imposed for his conduct?
Findings Of Fact Respondent is and has been, at all times material to the allegations in the Administrative Complaint, a certified roofing contractor in the State of Florida, having been issued license number CCC 132557. At all times material to the allegations of the Administrative Complaint, Respondent was the primary qualifying agent for JCSI Certified Roofing Contractors (JCSI), which has been issued certificate of authority number QB 47568. On or about April 7, 2006, Respondent, doing business as JCSI, entered into a contract with Mr. and Mrs. John Shields to install a stone coated steel shingle roof at 518 Ponte Vedra Boulevard, in Ponte Vedra Beach, Florida. The contract amount was $50,850.00, and the contract included the following work: Scope of Work: Steel roof to be mechanically fastened on a single ply system and consist [sic] of the following: Peel & Stick base sheet (same as Ice and water Shield), stone coated drip edge. Mechanically fasten roof panels according to wind chart specifications. Matching stone coated trim. All flashing to be minimum 26 gauge. Vents, valley metals, and flashing as required. Stone coated steel roof, color selection by Client. Steel roof to be installed to manufacturers wind chart specifications. All work to be done in a workmanlike manner with complete job cleanup of roofing debris placed in on-site container provided by Owner/Contractor. The draw schedule in the contract was listed as follows: Deposit $5,000.00 at signing (dry- in);$15,000.00 order materials; $15,600.00 At beginning of production, Balance at completion. The contract did not contain Respondent's license number or the certificate of authority number of JCSI Certified Roofing Contractors. The Shields paid the initial deposit of $5,000.00 upon signing the contract. Within a couple of weeks, Respondent performed the dry-in for the roof. On August 17, 2006, the Shields paid an additional $15,000.00 with check number 1461, which was deposited into JCSI's account August 18, 2006. In total, the Shields paid $20,000.00 toward the contract price. Respondent also installed flashing for the project, although the timing of this part of the job is unclear from the record. However, from testimony presented, it is found that the flashing was installed sometime in August 2006, in the two weeks before or after the August 17, 2006 payment. No other work was performed on the job by Respondent or JCSI. Respondent ordered materials for the roof from Gerard Roofing in June 2006. However, he did not receive the materials from the company because his credit with Gerard was over- extended. He claims that he reported this to the Shields and suggested that they pay for the materials directly and deduct that amount from the contract price, and he would finish the job. The order form from Gerard Roofing Technologies indicates that the roofing materials ordered in June 2006 totaled $21,570.11. Assuming that the order form represented materials for the Shields job only, had the Shields agreed to Respondent's proposed alteration in the contract, they would have paid $41,570.11 toward the completion of the roof at a time when the only work performed was the initial dry-in and possibly the flashing installation. This would have represented 81.75% of the contract price. As it is, the Shields had paid 39.33% of the contract price already. The Shields did not agree with Respondent's proposed alteration of the contract. By February 2007, no additional work had been performed on the roof and Respondent did not re-order the roofing materials. At that point, Mr. Shields terminated the contract. The investigative costs incurred by the Department, not including those associated with an attorney's time, are $288.22.
Recommendation Upon consideration of the facts found and conclusions of law reached, it is RECOMMENDED that the Construction Industry Licensing Board enter a Final Order finding Respondent guilty of violating Subsections 489.129(1)(i), (j) and (m), Florida Statutes, as charged in Counts I, IV and VI of the Administrative Complaint; finding that Respondent did not violate Subsections 489.129(1)(g)2., (i) and (o), Florida Statutes, as charged in Counts II, III and V of the Administrative Complaint and dismissing those counts; imposing an administrative fine of $250 for Count I; imposing an administrative fine of $2,500 and placing Respondent's license on probation for a period of four years for Count IV; imposing an administrative fine of $2,500 for Count VI; requiring restitution in the amount of $15,000.00 to John and Christine Shields2/ in accordance with Florida Administrative Code Rule 61G4-17.001(5); and imposing costs in the amount of $288.22. DONE AND ENTERED this 28th day of August, 2009, in Tallahassee, Leon County, Florida. S LISA SHEARER NELSON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 28th day of August, 2009.
The Issue Whether the Respondent committed the violations alleged in the Second Amended Administrative Complaint dated June 13, 1997, and if so, the penalty which 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 ("Department") is the state agency responsible for regulating the practice of engineering in Florida and for investigating and prosecuting complaints against licensed engineers. Sections 455.201 and .225, Florida Statutes. The Board of Professional Engineers ("Board") is the state agency responsible for certifying candidates for licensure as engineers and for disciplining licensed engineers. Sections 471.007, .015, and .033, Florida Statutes. At the times material to this action, Alberto L. Ribas was licensed by the Department as a professional engineer, having been issued license number PE 0014452. Mr. Ribas has been a licensed professional engineer in Florida since 1970. On or about November 18, 1992, Mr. and Mrs. Alberto Costa entered into a contract with Miguel M. Cruz for the re-roofing of their home located in Miami, Florida, after it had been damaged by Hurricane Andrew. The job involved the installation of Venezuelan Clay "S" roofing tiles, and building permit number 93093185 was issued by the Metropolitan Dade County Building and Zoning Department on January 7, 1993. According to the building permit, the re-roofing job would require the installation of 3200 roofing tiles covering 3200 square feet. At some point during the installation of the roof, Mr. Costa noticed what he thought were problems with the way the tiles had been nailed to the roofing deck. He immediately telephoned the Metropolitan Dade County Building and Zoning Department and requested an inspection. On March 22, 1993, Mr. Frank Zuloaga, then a supervisor of roofing inspectors with the Metropolitan Dade County Building and Zoning Department, conducted an inspection of the work completed to date on the roof of Mr. Costa's residence. Mr. Zuloaga noted on the inspection tag that he left on the site that, among other things, "[t]iles must have 2 nails." He did not approve the installation of the roofing tiles he inspected and prepared a notice dated March 25, 1993, in which he advised Mr. Cruz that he was in violation of the South Florida Building Code. Mr. Zuloaga specifically stated in the notice that the roofing tiles were not installed according to manufacturer's specifications; that Mr. Cruz had failed to call for an earlier, mandatory inspection; and that the workmanship was not according to code. Mr. Zuloaga required in the notice that the work be corrected by April 21, 1993, by removing non-complying tiles and installing tiles in accordance with manufacturer's specifications and by ensuring that the workmanship on the job reflected installation in "accordance with SFBC [South Florida Building Code] and the mfr [manufacturer's] recommendation." At some point, Mr. Cruz asked Mr. Ribas to look at the roofing tiles he had installed on Mr. Costa's residence and to write a letter to the Metropolitan Dade County Building and Zoning Department expressing his opinion about the adequacy of the installation. After inspecting the installation of 600 of roofing the tiles, Mr. Ribas wrote a letter addressed to the "Metro Dade County Building Department" which stated in its entirety: Re: Residence at 10361 Sw 15th Terrace Permit No. 93-093185, Dated 1-7-93 Gentlemen: This is to certify that after having inspected the roof of the above listed residence, I have found about 600 roofing tiles properly installed and anchored with a common #10 hot dipped galvanized nail and RT600 adhesive applied to same, making for a stronger layout than the one specified for by the manufacturer. The letter was signed by Mr. Ribas, who identified himself as "Albert L. Ribas, P.E., Registration #14452." Mr. Ribas gave the letter to Mr. Cruz and had no other involvement with the Costa roofing project. The inspection of the roofing tiles was not undertaken by Mr. Ribas to determine if the tile installation conformed with the South Florida Building Code, and the letter he wrote expressing his opinion about the installation of the 600 roofing tiles did not, and was not intended to, certify that the installation was complete or that the installation was done in accordance with the South Florida Building Code. Mr. Ribas was not aware at the time he inspected the roof that Mr. Zuloaga had issued a notice of violations on March 25, 1993. During the times material to this proceeding, Metropolitan Dade County accepted building inspection reports from independent contractors under contract with the Building and Zoning Department for such services. These contractors were required to be certified by the Metropolitan Dade County Board of Rules and Appeals. In addition, final building inspection reports were accepted from special inspectors, who were hired by a property owner to inspection a particular project. The code in effect in 1993 required that a person be approved as a special inspector by the appropriate authorities. Mr. Ribas was not acting in the capacity of a special inspector when he inspected the 600 roofing tiles installed on the roof of Mr. Costa's residence. The permit history file maintained by the Metropolitan Dade County Department of Building and Zoning does not contain the April 30 letter written by Mr. Ribas, and there is no record that the letter was logged onto the computer as part of the permit history file nor that it was accepted by the Metropolitan Dade County Building and Zoning Department as the final inspection of the roof on Mr. Costa's residence. The letter does not appear in the microfilm copy of the permit file maintained Metropolitan Dade County Building and Zoning Department for the re-roofing project. There are a number of things which must be done correctly in order for roofing tiles to be properly installed: You look for several things. You look at the method of attachment, you look at head lap, you look at the side laps, you look how they're put together, you look whether they're installed on batons, if those batons are vertical or horizontal or they're installed directly to the sheathing itself. You look at the membranes beneath it and assure, that if it's required, that proper sealants have been used for nails to penetrate, so the roof won't leak later. That's the majority of the things. 1/ The actual tiles that had been installed on the roof of Mr. Costa's residence at the time Mr. Ribas looked at the roof were Lifetile's Espana S-Style Tile for Nail-on System. The Product Control Notice of Acceptance for these tiles was approved on April 13, 1992, by the Metropolitan Dade County Board of Rules and Appeals and was effective until April 13, 1995. The specific conditions of the acceptance permitted these tiles to be used for nail-on systems and provided in subsection (g): "All tiles shall be fastened with a minimum two ten penny corrosion resistant minimum hot dipped galvanized nails " The South Florida Building Code in effect in April 1993 required that the type of roofing tiles installed on Mr. Costa's residence be "nailed with two galvanized nails." At the time Mr. Ribas wrote the April 30, 1993, letter, all of the inspectors were aware that the South Florida Building Code required installation of the Espana "S" tiles with two galvanized nails, and, according to Mr. Zuloaga, it would have been obvious to the inspectors that the installation did not conform to the South Florida Building Code. Pro-Series RT-600 Roof Tile Adhesive was approved by the Metropolitan Dade County Board of Rules and Appeals, effective from October 21, 1991, through October 21, 1994. The specific conditions stated in the Notice of Acceptance provides: "This approves Pro-Series RT-600? a roof tile adhesive used for the repair of existing roofs. However, the application of this product may be used with new construction in addition to the requirements for a nail-on system." When used with a nail-on system, RT-600 adhesive is used to adhere the tiles to each other, not to the roof deck. At the time he inspected the roofing tiles, Mr. Ribas knew that the manufacturer's specifications and the South Florida Building Code required the tile to be installed with two nails. He also knew that RT-600 had been approved for some uses by the Metropolitan Dade County Board of Rules and Appeals. Mr. Ribas formed the opinion expressed in the April 30 letter that attaching the tile with one nail and TR-600 provided a stronger installation than the manufacturer's specifications on his experience with RT-600 adhesive, which was in general use in the area after Hurricane Andrew; on his knowledge of general engineering principles; and on his years of experience as an engineer. He did not arrange to have the tiles tested to determine if his opinion regarding the strength of the layout would be borne out by test results. In 1996, after the Department filed its initial Administrative Complaint against him, Mr. Ribas contacted Mohamad Salleh, a licensed professional engineer who is also certified to conduct nail pull and tile uplift tests on roofing materials. Mr. Ribas asked Mr. Salleh's opinion as to whether the installation of a tile with one nail and RT-600 adhesive provided a stronger layout than the installation of a tile with two nails and no adhesive. In Mr. Salleh's opinion, it is obvious to a trained and experienced engineer that the tile installed with one nail and adhesive would provide the stronger installation. However, at Mr. Ribas' request, Mr. Salleh conducted a test to measure the amount of uplift on tiles installed with the two systems, using Protocol PA-106, established by the Metropolitan Dade County Office of Building Code Compliance. Protocol PA-106 "is a product application control test to confirm either: 1) sufficient bonding by the mortar or adhesive to the tile and underlayment in a mortar or adhesive set tile system; or 2) effective mechanical attachment of components within a rigid, discontinuous roof system." Mr. Salleh used this test because it would be the most appropriate test for his purposes. Mr. Salleh concluded from the results of the test that the installation method using one nail and RT-600 adhesive produced a stronger installation than the method using two nails and no adhesive. On June 3, 1993, Mr. Zuloaga re-inspected the roof of Mr. Costa's residence both as a follow-up to the March 22 inspection and in response to a complaint. Mr. Zuloaga found that none of the violations included in the notice to Mr. Cruz dated March 25, 1993, had been corrected. At some point, Mr. Costa hired another roofing contractor to complete the re- roofing job. The evidence presented by the Department in this case is not sufficient to establish with the requisite degree of certainty that Mr. Ribas failed to adhere to acceptable standards of engineering principles or failed to use due care in formulating the opinion stated in his letter of April 30, 1993. 2/ Furthermore, there is no evidence in this case to support a finding that Mr. Ribas's April 30, 1993, letter was submitted to the Metropolitan Dade County Department of Building and Zoning in the normal course of its business; there is no evidence to support a finding that Mr. Ribas intended the Metropolitan Dade County Department of Building and Zoning to accept the letter as the final inspection of the roof; and, there is no evidence to support a finding that the Metropolitan Dade County Department of Building and Zoning accepted the letter as the final inspection. Finally, there is no credible evidence to support a finding that, considering the entire text of the April 30 letter, Mr. Ribas intended to certify that the installation of the roofing tiles he inspected was done in accordance with the South Florida Building Code simply because he stated that the tiles were "properly installed."
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Board of Engineering of the Department of Business and Professional Regulation enter a final order dismissing the Second Amended Administrative Complaint against Alberto L. Ribas. DONE AND ENTERED this 12th day of August, 1998, 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 Filed with the Clerk of the Division of Administrative Hearings this 12th day of August, 1998.
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
