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 Based upon my observation of the witnesses and their demeanor while testifying, the documentary evidence received and the entire record compiled herein, the following relevant facts are found. Jesse Bruce, Respondent herein, is a registered roofing contractor and has been issued license No. RC0022948. On September 2, 1981, Respondent entered into a contract to repair a roof at 3684 NW 29th Street, Lauderdale Lakes, Florida, for Ms. Beryl Babb for the sum of $485.00. Respondent admits that he commenced construction under the above-referenced contract without first having obtained a building permit. Respondent was paid in full under the contract by Ms. Babb on September 4, 1981. Pursuant to the terms of the construction contract, Respondent provided for a two-year warranty on the roof repairs. Within an approximate two-month period following the repairs by Respondent, Ms. Babb made repeated phone calls to Respondent's construction company to report complaints that she was having in that the roof and garage appeared to "leak more than it had leaked prior to the repairs." Ms. Babb made at least six telephone calls to Respondent's construction company to no avail. During November, 1981, Ms. Babb filed a civil complaint in small claims court and during January, 1982, Ms. Babb received a judgment against the Respondent for $300.00. 1/ Respondent ahs been a licensed and registered roofing contractor since October, 1974. Respondent acknowledged that he received complaints from Ms. Babb as was testified herein; however, he states that he was busy during the times in which the complaints were made, an further that he did not want to make repairs inasmuch as Ms. Babb had elected to file a civil complaint against him in small claims court. Finally, Respondent acknowledged that he was obliged to return tot he Babb residence to make the repairs inasmuch as the complaints from Ms. Babb came during the two-year period in which the warranty for the roof repairs was in effect.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that the Respondent be placed on probation for a period of six (6) months. 3/ RECOMMENDED this 3rd day of February, 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 3rd day of February, 1983. COPIES FURNISHED: Michael J. Cohen, Esquire Suite 101, Kristin Building 2715 E. Oakland Park Blvd. Ft. Lauderdale, Florida 33306 Jesse Bruce 721 NW 20th Ave. Ft. Lauderdale, Florida 33311 Mr. James Linnan Executive Director Construction Industry Licensing Board Post Office Box 2 Jacksonville, Florida 32202 Mr. Fred Roche, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301
Findings Of Fact At all times pertinent to the issues herein, Graciela Zara was a registered roofing contractor in the State of Florida having license number RC 0035417. Respondent qualified Rolando Lopez Roofing Corp. at all times material to the complaint. Roofing work was done on the building located at 8413 8415 Hardin Avenue; however, the roofing work was not done by Rolando Lopez Roofing, but rather by Chungo, an employee of M. G. Construction Company, the owner of the building. Certain materials for the roofing work were delivered to 8413-8415 Harding Avenue by Tops All Roofing & Building Products, Inc., and those materials were ordered by Rolando Lopez and/or Renee Garcia. Rolando Lopez Roofing performed roofing work at the the bank at Las Americas Shopping Plaza, 8500 N.W. 85th Street; however, there was no evidence presented that Rolando Lopez Roofing failed to obtain a permit for the work it performed. Tropical Roofing entered into a contract for roofing work at the home of Mr. Sosa, 3001 S.W. 96th Avenue, Miami, Florida. 2/ The work was subcontracted to and done by Rolando Lopez Roofing. Although a permit for the work was required, respondent failed to obtain a permit. The respondent was responsible for obtaining the permit because the contractor that performs the work is responsible for obtaining the permit. Leon Gomez entered into a contract with Rene Garcia for roofing work at 309 Pinecrest Drive. Rene Garcia performed the roofing work on the house and was paid for the work by Mr. Gomez. However, the permit for the roofing work was obtained by the respondent. Roofing work was performed at the home of Felipe Acosta, 401 Flagami Boulevard, Miami, Florida. The permit for the roofing work was obtained by respondent. The contract for the work was with Rolando Lopez Roofing. The roofing work was performed by Rene Garcia and other workers that Mr. Acosta did not know. Mr. Acosta does not know Rulando Lopez. The contract negotiations and the payment for the job were handled by Mr. Acosta's brother. Mr. Acosta did not know whether Rene Garcia or Rolando Lopez received payment for she roofing work, but he knows his brother paid one of them. The roofing work was performed pursuant to the contract with Rolando Lopez Roofing. On June 1, 1983, Rolando Lopez Roofing Corp. issued a check for $11,667.86 to Tops All Roofing & Building Products. The check was returned by the bank stamped "Account Closed." On September 16, 1983, Rolando Lopez was adjudicated guilty of issuing a worthless check in violation of Section 832.05. Mr. Lopez paid $5,000 in restitution to Tops All Roofing & Building Products, but he was unable to pay the remaining amount because he has been unable to get any work. There was no evidence that Rolando Lopez Roofing Corp. failed to pay creditors for materials furnished. Although Rolando Lopez failed to make full restitution to Tops All Roofing and Building Products for the $11,667.86 check that was returned, there was no evidence that the check was for building supplies furnished to Rolando Lopez Roofing. Rolando Lopez testified that the check was written for the benefit of his nephew, Rene Garcia, to be used as collateral. Further, there was no evidence that Tops All Roofing & Building Products had furnished any building materials to Rolando Lopez Roofing prior to June 1, 1983, the date of the check. There was no evidence presented that Rene Garcia was not licensed by the State of Florida as a registered or certified roofing contractor
Recommendation Based on the foregoing Findings of Facts and Conclusions of Law, it is RECOMMENDED that the Respondent be placed on probation for a period of six months. DONE and ORDERED this 2nd day of January, 1985, in Tallahassee, Leon County, Florida. DIANE GRUBBS Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 2nd day of January, 1985.
Findings Of Fact Respondent, Harry Clinton Brackin, is a licensed registered roofing contractor holding license number RC0045880. Respondent was licensed at all times material to this action. Respondent is the owner and licensee for Brackin Roofing Company. Sometime around February 20, 1987, Respondent entered into a contract with Mrs. Arebelle S. Hughes, an elderly woman, to re-roof her house and remodel the front porch of her home located in Vernon, Florida. In addition to the work performed pursuant to the contract, there were verbal construction agreements between Mrs. Hughes and Respondent for the remodeling of the back porch, removing and closing out windows, replacing and framing doors, placing molding in the kitchen and various other carpentry repairs. Ms. Hughes asked Respondent to perform the additional work because she was well satisfied with the roofing job done by Respondent and she was unable to find a licensed contractor willing to come to Vernon and perform the work she wanted done. Respondent, in fact, informed Ms. Hughes he was not a contractor and in his opinion she needed a contractor. However, Ms. Hughes still wanted Respondent to do the additional work for the above reasons. Later, Mrs. Hughes became very dissatisfied with the quality of Respondent's remodeling work and advised the Respondent of her complaints. However, the evidence disclosed that her complaints were not well communicated and Respondent did generally try to meet Ms. Hughes' requests. None of Respondent's work constituted a hazardous condition and no evidence was offered which indicated an actual building code violation. The Respondent has not corrected the work. Mr. Harold Benjamin, an expert in the area of general contracting, reviewed the contract, the job site, the Respondent's license, and the pertinent Florida Statutes. Mr. Benjamin's expert opinion was that the Respondent's contracting job with Mrs. Hughes definitely exceeded the scope of Respondent's roofing license. Mr. Benjamin added that the carpentry work itself demonstrated an unfitness in the area of carpentry contracting and that Respondent's work did not in some respects meet the minimum carpentry standards for the industry. However, Respondent's work was not so bad as to constitute gross negligence in the area of contracting. This is particularly true since Respondent disclosed to Ms. Hughes that he was not a contractor and that the work she wanted done should be performed by one. Respondent's duty was thereby limited to a duty to perform reasonably given his abilities. Respondent did meet that duty. Respondent was disciplined for the same type of violation in 1986.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That the Department of Professional Regulation, Construction Industry Licensing Board impose an administrative fine of $2,500.00. DONE and ORDERED this 5th day of December, 1988, in Tallahassee, Florida. DIANE CLEAVINGER 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 5th day of December, 1988. APPENDIX TO RECOMMENDED ORDER, CASE NO. 88-2721 The facts contained in paragraphs 1, 3, 4, 6, 7 and 9 of Petitioner's Proposed Findings of Fact are adopted in substance, in so far as material. The facts contained in paragraphs 2 and of Petitioner's Proposed Findings of Fact are subordinate. The facts contained in paragraph 8 of Petitioner's Proposed Findings of Fact are adopted except as to the finding pertaining to gross negligence which is rejected. COPIES FURNISHED: Elizabeth R. Alsobrook, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 Harry Clinton Brackin Route 1, Box 2470 Chipley, Florida 32428 Bruce D. Lamb, Esquire General Counsel Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 Fred Seely, Executive Director Department of Professional Regulation Construction Industry Licensing Board Post Office Box 2 Jacksonville, Florida 32201
Findings Of Fact Respondent has been licensed as a registered roofing contractor at all times relevant to this proceeding. His license number is RC0042041. On August 30, 1982, Respondent contracted with the Julien P. Benjamin Equipment Company of Jacksonville, Florida, for the rental of an asphalt kettle. Respondent executed this contract in the name of his roofing and remodeling business. When Respondent failed to return the kettle or make rental payments, the equipment company filed a complaint with the State Attorney. Respondent subsequently entered a plea of guilty to the charge of Grand Theft, second degree, and was placed on 18 months probation, by order of the Duval County Circuit Court dated May 16, 1983. Respondent returned the kettle and paid the rental fees in March 1983.
Recommendation Based on the foregoing, it is RECOMMENDED: That Petitioner enter a Final Order suspending Respondent's roofing contractor's license for a period of one year. DONE AND ENTERED this 24th day of August 1984 in Tallahassee, Florida. R. T. CARPENTER 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 24th day of August 1984. COPIES FURNISHED: Charles F. Tunnicliff, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Mr. Rex Alaniz 23 Seatrout Street Ponte Verde Beach, Florida 32082 James Linnan, Executive Director Construction Industry Licensing Board Post Office Box 2 Jacksonville, Florida 32202 Mr. Fred M. Roche, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301
The Issue The issue for determination is whether Respondent, licensed as a registered roofing contractor, certified roofing contractor, and certified building contractor, committed various violations of Chapter 489, Florida Statutes, sufficient to justify the imposition of disciplinary sanctions against his licenses.
Findings Of Fact Respondent is Joseph H. Rayl, holder, at all times pertinent to these proceedings, of registered roofing contractor license no. RC 0034055; certified roofing contractor license no. CC C035625; and certified building contractor license no. CB C033206. Petitioner previously disciplined Respondent's license RC 0034055 through the imposition of a $250 fine by order dated July 11, 1985; and Respondent's license CB C033206 by suspension of license for six months and imposition of a fine of $2,500. Petitioner also found probable cause for three cases in 1987 that were closed with letters of guidance to Respondent. Petitioner is the Department of Professional Regulation, Construction Industry Licensing Board, the state agency charged with the regulation of contractors in the State of Florida. Respondent was the qualifying agent for Unique Construction, Inc., (Unique) at all times pertinent to these proceedings. Further, Respondent has been the qualifying agent for Superior Roofing & Construction Inc., (Superior) since February, 1988. On June 19, 1984, Mary Lois Brining, owner of a day care center for children known as Town and Country Schools of Bradenton in Manatee County, Florida, entered into a contract with Respondent to reroof the day care center. Respondent's personnel arrived at the school and removed the roof. Heavy rainfall then caused extensive damage to the interior of the facility and Brining complained to Unique. A representative of the company assured her that the situation would be resolved. Brining later paid Unique $623 to paint the school's interior, in addition to the cost of the roof replacement. While Respondent was never present during the construction, his workmen finished the roofing project on June 26, 1984. When leaks to the roof developed after completion of the job, Brining advised Unique of the leakage on numerous occasions. No action was taken by Respondent or Unique in response to Brining's telephone calls about the roof's leakage. Water leakage also damaged the carpet in Brining's facility, which she replaced at a cost of $2,000. In 1988, Brining finally hired another roofing company to correct the roof leakage. Helen M. Hayes, a resident of Gulfport, Florida, contracted with Unique to reroof the flat portion of the roof to her home on April 12, 1984, for a sum of $2,890. The job was finished on April 15, 1984. Two days later, the roof leaked. Hayes advised Unique and a representative came to the house and attempted to stop the leaks. After every rain, the roof leaked and Hayes would advise Unique. She never saw or spoke with Respondent. Finally, after 22 contacts with the company over a period of two and a half years, Hayes contacted local government building authorities. The building inspector for the City of Gulfport inspected the roof and told the company to replace it. Unique's workmen removed the roof in July, 1986, and left the house uncovered. That same day 10 inches of rain fell in the area of the residence, resulting in extensive damage to the home's interior and clothing which Hayes had stored in the home. Hayes called the police. The police called the building inspector who, in turn, called the roofing company. On July 28, 1986, Unique completed replacing the roof on Hayes' house. That new roof still leaks, the floor to the house is cracked from the leakage, the carpet has been saturated with water, plaster from the ceiling is falling to the floor, and there are water stains on the ceiling and walls throughout the residence. The proof further establishes that the City of Gulfport, located in Pinellas County, Florida, retained a private contractor to conduct an inspection of Hayes' roofing job in July of 1986. That inspection established that the roof should be replaced with a roof complying with building code requirements. Notably, while Unique obtained permits for the job, no final inspection of the project was ever obtained by Respondent's company in accordance with the Southern Building Code adopted as an ordinance by the City of Gulfport. James Oliver Prince is a resident of Lake Hthchineha, a settlement located in Polk County, Florida. He has never met Respondent. Prince entered into a contract with Unique in September of 1985. The reroofing job was completed on or about September 26, 1985. Leaks developed with the onset of the first rain after the completion of the job. Prince notified Unique and a representative came out to the residence to attempt to repair the roof and stop the leaks. This procedure continued on numerous occasions until November of 1987 when Prince attempted to contact Unique regarding the roof's leakage only to be informed that the telephone had been disconnected. Prince tried to locate Unique at the various offices listed on his contract, but received no answer. Eventually, due to the seriousness of the leaks and his inability to contact Unique, Prince hired a carpenter and replaced the roof at a cost of approximately $6,000. As established by testimony of Charles Fant, fire chief and building official for the City of Treasure Island, Florida, Unique obtained a construction permit for a reroofing job for the home of Vincent Ferraro located at 62 North Dolphin Drive in that city. The city has adopted the Southern Building Code as a city ordinance. However, the company never obtained the required final inspection for that job as required by the building code. On August 13, 1986, Carl and Ludie Buice of Bellview, Florida entered into a contract with Unique for a reroofing job on their home. Carl Buice passed away in November of 1986 Later, their son assisted Ms. Buice when leaks developed in the roof by attempting to contact the roofing company. The son, Alfred Buice, was unable to contact Unique. He then contacted the local offices of the Better Business Bureau; thereafter a representative of Superior, Respondent's successor company to Unique, came to the Buice residence on or about May 25, 1988, and gave Alfred Buice a check for $200 in connection with money previously spent by Buice to repair leaks to the roof. Even after repairs, the roof continued to leak to the point that it began to cave in around the roof's edges. Eventually, Alfred Buice had his mother's residence reroofed by another contractor on March 21, 1989, for $5,800. Testimony of Petitioner's expert witness establishes that Respondent was grossly negligent in meeting his qualifying agent responsibilities to supervise financial activities and construction practices of Unique. Further, Respondent's subordinates, who actually carried out roofing activities, performed those tasks incompetently. Respondent failed to comply with existing construction industry practices to inspect jobs where successive complaints were lodged by customers.
Recommendation Based on the foregoing, it is hereby RECOMMENDED that a Final Order be entered revoking Respondent's licenses as a registered roofing contractor, certified roofing contractor, and certified building contractor. DONE AND ENTERED this 7th day of July, 1989, in Tallahassee, Leon County. Florida. DON W. DAVIS 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 7th day of July, 1989. APPENDIX The following constitutes my specific rulings, in accordance with Section 120.59, Florida Statutes, on findings of fact submitted by the parties. Petitioner's Proposed Findings. 1.-42. Addressed. Respondent's Proposed Findings. None submitted. COPIES FURNISHED: Elizabeth R. Alsobrook, Esquire Department of Professional Regulation The Northwood Centre, Suite 60 1940 N. Monroe St. Tallahassee, Florida 32399-0750 William E. Whitlock, III, Esquire 320 West Park Avenue Tallahassee, Florida 32301 Fred Seely, Executive Director Construction Industry Licensing Board Department of Professional Regulation Post Office Box 2 Jacksonville, Florida 32201 Kenneth E. Easley, Esquire Department of Professional Regulation The Northwood Centre, Suite 60 1940 N. Monroe St. Tallahassee, Florida 32399-0750
Findings Of Fact At all times material hereto Respondent has been a registered roofing contractor in the State of Florida, having been issued license number RC- 0042963. At no time material hereto did Respondent's license qualify "Energy Plus Roofing" with Petitioner. Notice of the final hearing herein was provided to Respondent at his last known address of record in Bradenton, Florida, as shown on his Election of Rights form. The notice was not returned by the post office as "undeliverable" or for any other reason. In April, 1988 Respondent entered into a contract to perform certain roofing work for John Beede at a contract price of $1,610. Respondent executed this contract on behalf of Energy Plus Roofing, and provided a ten year warranty on workmanship and materials. Beede paid the full contract price to Respondent for work performed, but Respondent failed to correct leaks in Beede's Florida room. In fact, after the job Beede had additional leaks in his Florida room. Respondent failed to respond to several calls from Beede for further corrective work under the ten year warranty. Finally, Beede had to have a "roof over" constructed to correct the leaks in his Florida room at an additional cost of $4,000. Respondent did not obtain any permit from Manatee County for the work he performed for Beede, although Manatee County requires contractors to obtain permits for such jobs in excess of $200. Additionally, Respondent did not register "Energy Plus Roofing" with Manatee County, although Manatee County does require such registration. In March, 1986 Respondent entered into a contract with Marie Allen for roof repair on her mobile home in Ruskin, Hillsborough County, Florida. Allen did not have any leaks in her roof at the time, but she was simply seeking preventive maintenance. Respondent contracted with Allen on behalf of Energy Plus Roofing to pressure clean her roof and "apply energy plus roof system to (her) existing roof" for a contract price of $1,000. Respondent provided a ten year warranty on workmanship and materials. After Respondent's crew pressure cleaned her roof, Allen began experiencing leaks, and she presently continues to have four leaks which she did not have before work was performed by Respondent. She has tried repeatedly to contact Respondent under the warranty, but has been unsuccessful. Respondent is not registered in Hillsbourough County, and he did not obtain any permits for the Allen job. Hillsborough County requires contractors to be registered and to obtain permits for jobs such as he performed on Allen's roof. The only name on Respondent's license is his own individual name, Emanuel Fred Mosley.
Recommendation Based upon the foregoing, it is recommended that Petitioner enter a Final Order suspending Respondent's registration for a period of one (1) year and imposing an administrative fine of $1,000 upon Respondent. DONE AND ENTERED this 4th day of May, 1987 in Tallahassee, Florida. DONALD D. CONN Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 4th day of May, 1987. APPENDIX TO RECOMMENDED ORDER, CASE NO. 87-0442 Rulings on Petitioner's Proposed Findings of Fact: Adopted in Finding of Fact 1. Adopted in Finding of Fact 2. 3-8 Adopted in Finding of Fact 4. 9 Adopted in Finding of Fact 5. 10-14 Adopted in Finding of Fact 6. 15-16 Adopted in Finding of Fact 7. COPIES FURNISHED: W. Douglas Beason, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, FL 32399-0750 Emanuel Mosley 5707 5th Street East Bradenton, FL 33507 Fred Seely Executive Director 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 General Counsel Department of Professional Regulation 130 North Monroe Street Tallahassee, FL 32399-0750
Findings Of Fact Respondent is Richard McDougal, holder, at all times pertinent to these proceedings, of registered roofing contractor license no. RC 0050466. Petitioner is the Department of Professional Regulation, Construction Industry Licensing Board, the state agency charged with the regulation of contractors in the State of Florida. Respondent was the qualifying agent for D & R Roofing Co., at all times pertinent to these proceedings. On July 31, 1989, Arla Jackson signed and accepted Respondent's written proposal to re-roof a house belonging to Jackson, located in Washington County, Florida. Prior to engaging Respondent to re-roof the house, Jackson had only a minimal amount of leakage in a couple of corners inside the house. Under the terms of the written proposal provided by Respondent to Jackson, Respondent agreed to remove the old roof covering from the structure; install a new three ply fiberglass felt covering; install new eave metal around the roof perimeter; extend the roof a short distance at one end; and top coat a utility building on the premises. Further, Respondent agreed to haul away debris resulting from the job. Completion of the roofing project by Respondent and receipt of payment from Jackson in the amount of $3,000 occurred on August 9, 1989. $2,900 of this amount was payment to Respondent for replacing the old roof while the remainder satisfied charges by Respondent for additional work required to extend the roof. Shortly after Respondent's completion of the roof replacement, Jackson began to telephone Respondent, requesting that he come and repair holes in the roof that were leaking water as the result of rain. Respondent came to Jackson's house on at least three occasions to attempt to stop leaks in the roof. He eventually determined that he had stopped the leaks and told Jackson that, as far as he was concerned, there was no roof leakage problem. Jackson's flat roof continued to leak. Eventually, Gus Lee, an unlicensed roofing assistant to H.M. Strickland, a local licensed contractor, agreed to repair her roof and eliminate the leakage problem. Strickland's signature appears with Lee's on written documentation bearing the date of October 1, 1989, and promising a "fine roof with no leaks; and I will stand behind it." Jackson accepted the Strickland offer. Jackson paid approximately $1,925.00 to Lee for work in connection with replacing the roof and painting the interior ceiling of the house. She paid an additional $653.79 for building supplies in connection with the project. Overall, Jackson paid approximately $2,578.79 for labor and materials to re-roof her house and repair the interior ceiling damage resulting from the leakage. This amount was in addition to the amount previously paid to Respondent. On October 20, 1989, Lee, the unlicensed assistant to Strickland and the person who actually undertook the task of re-roofing Jackson's house, removed the previous roofing material placed on Jackson's house by Respondent. Lee observed no fiber glass felt covering material on Jackson's roof at the time he re-roofed the house. Lee's testimony at hearing was credible, candid and direct. Although unlicensed as a contractor, Lee's attested experience supports his testimony regarding what he observed and establishes that Respondent failed to comply with his agreement to Jackson to provide fiber glass felt during the initial roofing of the house and instead used a less expensive material. Lee's testimony, coupled with that of Jackson and Lee's son, also establishs that significant damage had occurred to the interior ceiling of Jackson's house as the result of leakage after completion of work by Respondent. After Lee completed the re-roofing of Jackson's home, inclusive of use of a six ply felt covering on the roof accompanied by pea gravel and sealant, the roof's leakage stopped.
Recommendation Based on the foregoing, it is hereby RECOMMENDED that a Final Order be entered imposing an administrative fine of $1500 upon Respondent's license as a registered roofing contractor. DONE AND ENTERED this 25th day of November, 1991, in Tallahassee, Leon County, Florida. DON W. DAVIS 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 25th day of November, 1991. APPENDIX TO RECOMMENDED ORDER The following constitutes my specific rulings, in accordance with Section 120.59, Florida Statutes, on findings of fact submitted by the parties. Petitioner's Proposed Findings. 1.-4. Adopted, though not verbatim. 5.-8. Subordinate to Hearing Officer's Conclusions. 9.-11. Adopted in substance, though not verbatim. Respondent's Proposed Findings. None submitted. COPIES FURNISHED: Robert B. Jurand, Esq. Department of Professional Regulation The Northwood Centre, Suite 60 1940 N. Monroe St. Tallahassee, FL 32399-0792 Richard McDougal Box 10277 Panama City, FL 32404 Daniel O'Brien, Executive Director Construction Industry Licensing Board Department of Professional Regulation Post Office Box 2 Jacksonville, FL 32201 General Counsel Department of Professional Regulation The Northwood Centre, Suite 60 1940 N. Monroe St. Tallahassee, FL 32399-0750
The Issue The central issue in this case is whether Respondent is guilty of the violations alleged in the amended administrative complaints.
Findings Of Fact Based upon the testimony of the witnesses and the documentary evidence received at the hearing, I make the following findings of fact: At all times material to the allegations, Respondent, Ruth Ogen, was a licensed roofing contractor, license no. CC CO27471. A. R. Ogen Construction, Inc. was qualified by the Department as a roofing contractor. Respondent is the sole qualifier and licensee associated with the company, A. R. Ogen Construction, Inc. Respondent is married to Avraham Ogen who presents himself as the president of A. R. Ogen Construction, Inc. On or about November 9, 1986, A. R. Ogen Construction, Inc. doing business as Ogen Roofing & Waterproofing entered into a contract with Ardee Yuran to replace the entire roof of a commercial structure located at 14951 N.E. 6th Avenue, North Miami Beach (6th Avenue). The contract provided, among other things, that the top row of tiles around the parapet wall would be removed and reinstalled upon completion of the roof. In negotiating the contract described in paragraph 4, Mrs. Yuran was mindful of the work Avraham Ogen had performed at her residence. Mr. Ogen had supervised the reroofing of Mrs. Yuran's residence which had been satisfactorily performed. The residential job had required the removal of the tiles along the parapet wall and Mrs. Yuran expected the same process would be utilized in completing the commercial roof. The purpose intended to be accomplished by removing the tiles was to allow the roofers to extend the roofing materials up the sides of the parapet and over the crest. The roofing material is then sealed to the wall and the tiles replaced. This procedure results in a waterproof barrier so that when rain accumulates on the flat roof (and the water level rises) it cannot seep through the sealed perimeter. During the time Mr. Ogen was negotiating and performing the roof work for the 6th Avenue building, he was also retained to paint the structure (which was to be completed after the roof was finished). There came a time when Mrs. Yuran and Mr. Ogen disagreed regarding aspects of the roof work and the painting that was to be done. Eventually, the parties reached an impasse where neither was willing to concede: Mr. Ogen was not willing to perform the work as specified by Mrs. Yuran, Mrs. Yuran was not willing to pay Mr. Ogen any more on the contracts. At this point, Ruth Ogen, Respondent, had not been involved in the daily work progress made at the site. To make matters worse, a leak developed at the 6th Avenue property which resulted in a waterfall pouring down through the overhang of the building. As a result of the disagreement, both parties retained lawyers and, understandably, the issues escalated. Mrs. Yuran retained three individuals to review the work performed by Mr. Ogen. On March 4, 1987, Walter H. Scott, Scott Roofing & Repair, Inc., determined that water accumulating on the 6th Avenue roof was draining behind flashing which had not been properly sealed to the perimeter walls instead of running through the outlets. Mr. Scott recommended that the flashing be resealed along the wall. Had the tiles been removed and the work been performed as stated in the contract, the leak would have been avoided. A second licensed roofing contractor, Gary Carruth, Falcon Roofing Co., inspected the property on June 23, 1987, and recommended reflashing the walls along the perimeter of the 6th Avenue building. Mr. Carruth observed that the tiles had not been removed along the wall and that the roofing materials had not been properly sealed along the perimeter. James Rodgers, a consulting engineer performed a third inspection of the roof at 6th Avenue on June 25, 1987. According to Mr. Rodgers, several items of the contract work completed by Mr. Ogen were inadequately performed. Mr. Rodgers found that the pitch pans were not installed properly around the air conditioning units and that the flashing along the parapet wall was not properly completed nor performed as described in the contract. Respondent also retained a licensed roofer to review the work at 6th Avenue. Bill Mathews, Bill Mathews Roofing, completed a roof inspection report on November 21, 1988. According to Mr. Mathews, the flashing along the parapet wall required repair because it had been improperly sealed. Mr. Mathews noted that the top row of tile should have been removed so that flashing could have been taken up and over the parapet wall. Mr. Mathews also noted that the flat roof had buckles or "fish mouths" which should have been corrected as the roof was being installed. Mr. Mathews recommended that the flashing be resealed and that the buckles be cut and sealed with membrane and roofing cement. Finally, Mr. Mathews determined that the pitch pans under the air conditioning units should be filled with an asphalt cold process to prevent further cracking and potential leaks. A final inspection report was completed by Robert B. Hilson, Bob Hilson & Company, Inc., on August 18, 1988. Mr. Hilson is a consultant for the Department and made the inspection at the request of its attorney. Mr. Hilson's findings and recommendations mirrored those suggested by Mr. Mathews. The work performed by Mr. Ogen on the 6th Avenue property did not meet the terms of the contract and did not meet performance standards acceptable in the roofing industry. Mr. Ogen failed to properly seal all flashing materials along the parapet wall, failed to correct the buckles or "fish mouths," and failed to meet the contractual obligations (removing the tiles and extending the flashing over the crest). Because of the substandard work, Mrs. Yuran incurred additional expenses and inconvenience. Respondent did not view the 6th Avenue structure either before or during the time that her husband supervised the work performed. Respondent's role with the company was as secretary, bookkeeper, and office manager. Mr. Ogen supervised or performed all work at the 6th Avenue job. Respondent did not supervise Mr. Ogen or the workers under his supervision. "Ogen Roofing & Waterproofing" has not been qualified by the Department as a roofing contractor. On or about April 28, 1987, A. R. Ogen Construction, Inc. was requested to perform a roofing inspection at 1180 N.E. 204 Terrace. The subject property was under contract for sale and was ultimately purchased by Rose Zenar. According to the inspection report filed by Mr. Ogen, the roof and roof covering were in satisfactory condition with no evidence of leaks. Mr. Ogen signed the inspection report as president of A. R. Ogen Construction, Inc., state license no. CC CO27471. During the first rain after she had moved into the house, Mrs. Zenar observed water leaking through the ceiling into the kitchen. She immediately called Mr. Ogen who came out, observed the problem, but did not repair the leak. Mr. Ogen did not return Mrs. Zenar's subsequent calls. Ultimately, she contacted James Rodgers to perform a second roof inspection. As a result of Mr. Rodgers' inspection, Mrs. Zenar discovered that the leak was of long duration as it had completely rotted and decayed the roof rafters and sheathing in the area of the leak. Mr. Rodgers took pictures of the area which clearly showed the discolored wood. Evidence of the discoloration was visible from the attic entrance located in the garage adjacent to the kitchen. Mr. Ogen's failure to discover the rotted roof was due to an inadequate inspection of the crawl space between the ceiling and the roof rafters. It is the normal practice of qualified roof inspectors to examine the crawl space between the ceiling and roof supports. Respondent did not perform the roof inspection at Mrs. Zenar's home, did not supervise the inspection performed by Mr. Ogen, and did not have a checklist of items to be reviewed by him in making the inspection. The erroneous inspection performed by Mr. Ogen resulted in expenses and inconvenience to Mrs. Zenar.
Recommendation Based on the foregoing, it is RECOMMENDED: That the Department of Professional Regulation, Construction Industry Licensing Board, enter a final order finding the Respondent guilty of the violations set forth above and, based upon the penalties recommended by rule, impose an administrative fine against the Respondent in the amount of $3000.00 DONE and RECOMMENDED this 20th day of April, 1989, in Tallahassee, Leon County, Florida. JOYOUS D. PARRISH 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 20th day of April , 1989. APPENDIX RULINGS ON PETITIONER'S PROPOSED FINDINGS OF FACT: Paragraphs 1 through 7 are accepted. With the correction to reflect Mrs. Yuran not Mr. Yuran, paragraph 8 is accepted. Paragraphs 9 through 12 are accepted. Paragraph 13 is accepted. Paragraph 14 is accepted with the correction that the witness' name was Gary Carruth. With the deletion of the last paragraph of paragraph 15 which is rejected as argument or comment, the first five paragraphs of paragraph 15 are accepted. Petitioner is warned not to subparagraph statements of fact or to restate testimony, but to simply set forth the fact deduced from such testimony. Paragraph 16 is rejected as irrelevant or immaterial. Paragraph 17 is accepted to the extent that it finds the reroofing work performed on the 6th Avenue building was a poor quality which was not done under the supervision of a qualified, licensed roofing contractor. Further, it was gross negligence not to properly supervise the job. No conclusion is reached as to whether Respondent is able to supervise a job. Paragraph 18 is accepted. Paragraph 19 is rejected as a recitation of testimony. Paragraphs 20 through 24 are accepted. Paragraphs 25 through 31 are accepted. Paragraph 32 is accepted. Paragraph 33--none submitted. With regard to paragraph 34, the first sentence is accepted. The remainder is rejected as conclusion of law, argument, or comment. Paragraph 35 is rejected as irrelevant. Paragraphs 36-38 are accepted. Paragraph 39 is rejected as comment, irrelevant, or recitation. The first two sentences of paragraph 40 are accepted, the remainder is rejected as comment, conclusion of law, or argument. Paragraph 41 is rejected as irrelevant, conclusion of law, or argument. RULINGS ON RESPONDENT'S PROPOSED FINDINGS OF FACT: Paragraph 1 is accepted. Paragraph 2 is accepted but is irrelevant. Paragraph 3 is accepted. Paragraph 4 is rejected as irrelevant to the issue of whether a competent inspection was performed. Paragraph 5 is accepted. Paragraph 6 is rejected as irrelevant to the issue of whether a competent inspection was performed. Paragraph 7 is rejected as irrelevant or unsupported by the record. Paragraph 8 is accepted. Paragraph 9 is accepted. Paragraph 10 is rejected as contrary to the weight of the credible evidence presented. Paragraph 11 is rejected as argument, speculation, or unsupported by the record. Paragraph 12 is rejected as irrelevant. Paragraph 13 is rejected as argument, irrelevant, or unsupported by the weight of credible evidence. Paragraph 14 is rejected as argument, irrelevant, or comment. Paragraph 15 is accepted but is irrelevant. Paragraph 16 is rejected as argument. Paragraph 17 is accepted but is irrelevant. Paragraph 18 is rejected as irrelevant, argument, or unsupported by this record. Paragraph 19 is rejected as irrelevant. The following are rulings on case no. 88-1776 as submitted by Respondent: Paragraph 1 is accepted. Paragraph 2 is rejected as unsupported by the record. Paragraph 3 is rejected as irrelevant. Paragraph 4 is accepted but is irrelevant, immaterial. Paragraph 5 is rejected as unsupported by the record. Paragraph 6 is rejected as irrelevant, immaterial, or unnecessary. Paragraph 7 is rejected as unsupported by the weight of credible evidence. Paragraph 8 is rejected as irrelevant, immaterial, or unnecessary. Paragraph 9 is accepted but is irrelevant. Paragraph 10 is rejected as irrelevant, immaterial or unnecessary. Paragraph 11 is rejected as irrelevant, immaterial or unnecessary. Paragraph 12 is rejected as irrelevant. Paragraph 13 is rejected as argument or unsupported by the weight of the credible evidence. Paragraph 14 is rejected as contrary to the weight of the credible evidence. Paragraph 15 is accepted but is irrelevant. COPIES FURNISHED: Fred Seely Executive Director Construction Industry Licensing Board Department of Professional Regulation Post Office Box 2 Jacksonville, Florida 32201 Bruce D. Lamb General Counsel Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 Elizabeth R. Alsobrook Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750
Findings Of Fact At all times relevant, the Respondent was licensed by the Construction Industry Licensing Board as follows: License No(s): RC 0021957 Licensed as: Registered roofing contractor Address of record is in: New Port Richey, Florida A certain contracting job was undertaken as follows: Customer: Stella Domas Approximate contract date: 6-85 Approximate price: $600 Job location: New Port Richey, Florida Job generally consisted of: Repair roof of Customer's house Said job was undertaken by the contracting business Respondent was associated with and responsible for in his capacity as a licensee. Respondent proceeded without a timely permit having been issued, violating local law, either deliberately or through improper supervision, in violation of 489.129(1)(d), (m), (j) 489.119; and 489.105(4), Florida Statutes. Respondent proceeded without timely obtaining all required inspections, violating local law, either deliberately or through improper supervision, in violation of 489.129(1)(d), (m), (j); 489.119; 489.105(4), Florida Statutes. Respondent gave a guarantee on said job to the Customer, and thereafter failed to reasonably honor said guarantee, in violation of 489.129(1)(m), (j); 489.119; 489.105(4), Florida Statutes. Respondent performed said work in a substantially deficient manner, therefore, violating 489.129(1)(m). Respondent previously has been disciplined by the State Construction Board. STIPULATED DISPOSITION Based on the Stipulated Findings Of Fact and Conclusions Of Law, the parties agree to the following disposition of the Amended Administrative Complaint: The Respondent shall pay a $1500 fine, payable within 60 days from entry of a final order approving this stipulated disposition; and The Respondent's registered roofing contractor license number RC 0021957 shall be suspended for 60 days, beginning 60 days from the entry of a final order approving this stipulated disposition.
Recommendation It is recommended that the Construction Industry Licensing Board enter a final order approving and incorporating the settlement stipulation between the parties. RECOMMENDED 28th day of July, 1988, in Tallahassee, Florida. J. LAWRENCE JOHNSTON Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 28th day of July, 1988. COPIES FURNISHED: Jack M. Larkin, Esquire 806 Jackson Street Tampa, Florida 33602 Lee Ellen Acevedo, Esquire 7716 Massachusetts Avenue New Port Richey, Florida 34653 Fred Seely, Executive Director Construction Industry Licensing Board Department of Professional Regulation Post Office Box 2 Jacksonville, Florida 32201 William O'Neil, Esquire General Counsel Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750
